Is forgetting a defense to “failure to register as a sex offender?”

Posted on February 2, 2022

People convicted of certain sex offenses in California become registered sex offenders for life. They must register with their local police department(s) every time they change their residence and every year within five days of their birthday. But what if an offender forgets to register? Can he/she receive life in prison? Can the party raise forgetfulness as a legal defense?

1. What happens if people in California fail to register as a sex offender?

A person that fails to complete his/her sex offender registration requirements is subject to prosecution for Penal Code 290 Failure to Register as a Sex Offender.¹

A violation of PC 290 is a felony punishable by up to 3 years in state prison.² Moreover, it counts as a strike under California’s three-strikes law. (2020 Update: Los Angeles County prosecutors no longer increase sentences based on prior strikes. Learn more here.)

Many people prosecuted under Penal Code 290 already have one or two strikes on their record (stemming from the sex conviction(s) that led to the registration requirement). A two-striker who gets convicted of felony Failure to Register must go to prison for at least 25 years to life.

2. Is forgetfulness a valid defense for a failure to register?

Not only are the Penal Code 290 requirements and penalties draconian, but California law recognizes very few excuses for failing to register. One such excuse that courts have rejected is simply “forgetting.”

Suppose Johnny, a registered sex offender, fails to do his annual registration within five days of his birthday. He genuinely and sincerely forgot.

When he remembered, two weeks later, he rushed to the police department to register. If the D.A. decides to prosecute Johnny under Penal Code 290, his forgetfulness will not necessarily serve as a legal defense.

However, courts have suggested that medical conditions such as Alzheimer’s disease or clinical memory impairment might be different. Court rulings have left open the notion that forgetfulness, due to an acute psychological condition, might lead to a lawful defense to a PC 290 violation.

But what’s clear is that simple human forgetfulness, even if genuine, does not get someone off the hook. It is a lapse of memory that could put someone away for life.

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