Failure to register as a sex offender – 4 defenses to this crime

3 common defenses to an allegation of failing to register as a sex offender are extenuating circumstances, a justifiable lack of awareness, and lost registration information. Showing that one of these defenses is present in your case can prevent a costly conviction. In many states, like California, failing to register as a sex offender can be a felony offense.

What are 3 defenses to failing to register as a sex offender?

3 of the most common defenses to a criminal charge of failing to register as a sex offender are:

1. extenuating circumstances outside of the defendant’s control caused the failure to register,
2. the defendant justifiably was not aware of their need to register, and
3. the defendant did, in fact, register.

A criminal defense attorney from a reputable law firm can help defendants raise one of these arguments and fight against a costly criminal conviction.

1. Extenuating circumstances

Generally, prosecutors have to prove that the defendant willfully failed to register as a sex offender. Evidence that extenuating circumstances prevented the defendant from registering can be a strong defense. It can be particularly strong if the defendant did register, but not quickly enough.

In many states, registered sex offenders have to register annually or biannually, as well as after certain events. Those events are often things like when the registrant has:

• moved,
• lost his or her prior permanent address, or
• enrolled in college, or graduated from college.

Registrants often have to register very soon after one of these events. If extenuating circumstances prevent the registrant from complying with the registration requirements, it can be a strong defense.

For example: Paul buys a house and moves. He has a week to update his sex offender registration. As he walks into the local law enforcement agency, he gets hit by a car. He is kept in the hospital for a month to recover.

These circumstances, though, have to be outside of the defendant’s control.

For example: In an attempt to avoid his sex offender registry obligations, Paul throws himself in front of a car.

2. Lack of awareness

Because the failure to register has to be willful, a lack of awareness can be a legal defense. However, the lack of awareness of the person’s sex offender registration requirements has to be justifiable, like if the defendant:

• was never told about their registration obligation,
• never received notifications about registering, or
• has a mental health condition that caused their lack of awareness.

California provides an example of when a lack of awareness is justifiable or not. There, courts have ruled that defendants must have actual knowledge of their registration obligation.¹ This goes beyond just being notified of what they have to do. The defendant has to actually understand what they have to do. However, any notifications that are used can be a factor in whether the defendant had actual knowledge.

For example: Juan pleads no contest to a sex crime. The prosecutor tells Juan that he “will be required to register under Penal Code section 290,” but Juan does not know what that means. After serving his sentence, Juan signed a document that informed him of his registration obligations. However, he had a lot of papers to sign to be released, did not have time to read them all, and had no one there to explain what his registration obligations were.²

The lack of awareness defense cannot succeed if the defendant “just forgot” to register.³ However, forgetfulness caused by a serious psychological condition could support the defense.⁴ Those conditions include:

• severe Alzheimer’s disease, or
• general amnesia from severe trauma.⁵

3. Law enforcement lost the registration

Defendants accused of not registering can also use evidence that they actually did register. Filing errors or other instances of negligence can lead to registration documents getting lost. Registrants may also be accused of using false information if public safety officials enter the registrant’s personal data, like his or her social security number or phone number, incorrectly.

Showing that this is what happened can be a strong defense.

Unfortunately, getting into a “he said, she said” dispute with law enforcement rarely works. Registrants can help themselves by creating a paper trail every time they register. If they register by mail, sending the document by certified mail can be wise. Keeping a copy of the registration is often a good idea. A criminal defense lawyer can help.

What are the penalties for a failed sex offender registration?

The penalties for failing to register as a sex offender depend on the state. It may also depend on the sex crime that required registration. In the worst cases, though, convictions can often carry up to several years in prison.

During that time, registration obligations are tolled. This means that minimum registration durations are put on hold while the defendant is in prison or jail.

For example: Lou is convicted for a sex crime and has to register for a minimum of 10 years. He has 5 years to go when fails to register. He is sent to jail for 3 years. When he is released, he will still have 5 years left.

Failing to register will often lead to a revocation of parole, probation, or conditional release.⁶

What is the law in California?

California Penal Code 290 makes it a crime to fail to register as a sex offender. This state law lists the sex crimes that will require registration. Some of these sexual offenses include:

• aggravated sexual assault, when the age of the victim is under 14 (Penal Code 269 PC),
• child pornography (Penal Code 311 PC),
• solicitation of a minor who is under 18 years of age (Penal Code 288.4 PC),
• indecent exposure (Penal Code 314 PC), and
• sexual battery involving unlawful restraint (Penal Code 243.4 PC).

Registrable convictions will require that the defendant register:

• every year, within 5 working days of his or her birthday, and
• every time they move to a new address, within 5 days of the move.⁷

To prove that someone failed to register as a sex offender, prosecutors have to show that:

• the defendant was previously convicted a registrable criminal offense,
• the defendant resided in the relevant jurisdiction or municipality,
• the defendant actually knew of his or her duty to register as a sex offender in that jurisdiction, and
• the defendant either willfully failed to register as a sex offender with the chief of police at the local police department or the county sheriff’s office within 5 days of moving to that jurisdiction, or willfully failed to update his or her registration within 5 days of his or her birthday.⁸

Failing to register is a misdemeanor, if the underlying offense was a misdemeanor. Failing to register is a felony, if the underlying offense was a felony.⁹

The penalties for misdemeanor failure to register are:

• up to 1 year in county jail,
• up to $1,000 in fines, and/or
• misdemeanor (summary) probation.

Felony failure to register as a sex offender convictions carry:

• 16 months, 2 years, or 3 years in state prison,
• up to $10,000 in fines, and/or
• felony (formal) probation.

A conviction for failure to register will generally not have any immigration consequences, though the underlying sex offense may. However, a felony-level conviction for failing to register may implicate the registrant’s right to bear arms.

A skilled sex crimes attorney can help defendants protect their rights and future.

1. See, for example, United States v. Vanleen (United States District Court for the Northern District of West Virginia, 2013) Criminal Action No. 3:07-CR-27; People v. Mossette (Appellate Court of Illinois, Second District, 2021) 2021 Ill. App. 2d 200571 (unpublished); State v. Drupal (2012) 306 Conn. 149.
2. People v. Garcia, (2001) 25 Cal.4th 744. See also California Penal Code 290 PC.
3. People v. Barker, (2004) 34 Cal.4th 345.
4. People v. Sorden, (2005) 36 Cal.4th 65.
5. Same.
6. For example: CRS 18-3-412.5; Alaska Stat. § 11.56.840; La. R.S. § 15:542.1.4; N.C. Gen. Stat. § 14-208.11; Rev. Code Wash. (ARCW) § 9A.44.132.
7. California Penal Codes 290.012 PC and 290.013 PC.
8. California Criminal Jury Instructions (CALCRIM) No. 1170.
9. California Penal Code 290.018 PC.