WV Sex Offender Laws So-So, Improvements Needed

UPDATE (August 2006): Because of recent legislation (HB 101, 2006 X1), portions of this commentary are now out-of-date.

Yesterday morning's Statewide Talkline featured a discussion of sex offenders and West Virginia's laws on sex offenders. "Tom" served 13 years in prison for first-degree sexual assault (in this case, an adult having sex with a child under age 12) against boys and talked about having a constant struggle to not reoffend, which proves the point of carefully monitoring sex offenders and making their whereabouts known to the community. This is not someone you'd want in your neighborhood if you have children--and maybe even if you don't. They act on perverse impulses and have a recidivism rate so astronomical, they're the only group of criminals that we as a society insist on monitoring and made known to their community after their sentences, parole, and probation have been completed.

Most of the time, West Virginia's legal system does a decent job prosecuting sex offenders & issuing relatively long prison sentences. However, there are several deficiencies in our laws that leave our communities vulnerable to the sexual predators out there.

1. As the state Supreme Court ruled last year (and for which the people of this state were smart enough to send Warren McGraw home), regardless of the crime, all sex offenders, including those guilty of first-degree sexual assault, are not only eligible for probation--YES, PROBATION!!!--but when they violate probation, as Tony Dean Arbaugh did, they can still avoid the prison sentence in lieu of which probation was imposed. Amazing!

2. For those who go to prison for a term of less than life, which the vast majority of criminals do--even sex offenders--we have a very liberal "good time" credit law (WV Code 28-5-27, click the link to read it) that requires criminals to be released after serving only half their sentences if they behave well once in prison, regardless of whether the Parole Board thinks they're ready to return to society. For someone sentenced to the standard 15-35 year term for first degree sexual assault (WV Code 61-8B-3), that really means a maximum of 17 1/2 years.

3. For second-degree sexual assault (WV Code 61-8B-4), rape in the absence of serious physical injury or the use of a deadly weapon, the penalty is 10-25 years before good time credits that reduce it to a maximum of 12 1/2.

4. For third-degree sexual assault (WV Code 61-8B-5)--primarily statutory rape of a child 12-15 years old by a person age 16 or older and at least 4 years older than the victim, the penalty is a maximum of 5 years.

5. When it comes to sexual abuse, essentially fondling or groping, the maximum penalty for first-degree sexual abuse is 1-5 years (WV Code 61-8B-7), unless it is committed by a parent, guardian, custodian or other position in a place of trust in relation to a child, in which case the sentence is 10-20 years (WV Code 61-8D-5, for 2005 amendments see HB 3098).

6. Now, for the Sex Offender Registry. It has three major flaws. First, we need to specifically require new pictures of registrants if they change their appearance. Second, photos of their vehicles from all 4 sides should be required and vehicle photos and license plate numbers should be added to the registry. Failure to register, providing false information, or failing to update a registration with information change is a misdemeanor for a first offense in some cases (WV Code 15-12-8). It should be a felony in all cases and should carry a significant prison sentence, especially for those who have convictions for more serious offenses.

7. We do not have a specific offense of concealing the whereabouts of a sex offender who is wanted by the police or aiding a fugitive sex offender that is easier to prove than accessory to a crime or obstruction of justice. We need to enact this law and make violations a felony. Florida enacted such a law this year as part of the Jessica Lunsford Act, named for a 9 year old girl who was kidnapped and murdered by a registered sexually violent predator and who is now believed to have been alive at the time family members of her murderer gave the police false information about his whereabouts. I personally feel they should at least be tried as accessories for that crime, but that's for a later time; I'm sure we'll also hear more on this from Bill O'Reilly anyway.

8. Finally, this last point concerns not just sex offenses but all felonies in general. West Virginia has one of the nation's oldest Three Strikes laws (WV Code 61-11-18 and 61-11-19), but it is weak and its application is not mandatory. Indeed, the probation eligibility statute (WV Code 62-12-2) overrides Three Strikes and permits probation even for habitual felons. WV Code 62-12-13 provides for eligibility for parole after 10 or 15 years for people sentenced to life in prison. The Three Strikes law needs to be made mandatory, eligibility for parole for a third strike should be after 25 years instead of 15, and second strike offenders should be punished more severely to hopefully dissuade some of them from strike three.

The Legislature needs to tackle this issue next year, if not sooner at a special session. I have been working on a bill that I'm going to propose to several legislators I know. This bill will call for the following:

1. A 25 years to life mandatory sentence for sexual assault or sexual abuse of a child under age 12 by an adult, for first-degree sexual assault (up from 15-35 years), and for sexual offenses against children by parents, guardians, custodians and other persons in a position of trust in relation to the child (up from 10-20 years).

2. Raise the penalty for second-degree sexual assault from 10-25 years to 15 to life.

3. Raise the penalty for third-degree sexual assault and first-degree sexual abuse from 1-5 years to 2-20 years.

4. Increase the maximum sentence for producing child pornography (currently 2 years).

5. Require more frequent verification of sex offender addresses.

6. Permanently require by law the Internet listing of all sex offenders subject to life registration, including pictures of the offender and their vehicles and their license plate numbers.

7. Require all registered sex offenders to be electronically monitored with GPS tracking. This may require a phase-in but those subject to life registration should be the first to be tracked, as their crimes were more serious.

8. Create a felony offense for intentionally withholding from police the whereabouts of a wanted sex offender or otherwise impede the search for a wanted sex offender.

9. Limit good time credit for all sex offenses, sex offender registration violations, and the offense described above in item 8, to 15 percent of the sentence.

10. Make sexually violent offenses ineligible for probation, work release, home confinement, and other alternative sentences to actual imprisonment.

11. Require consecutive sentences when more than one person is victimized; this is a principle that should apply to all violent criminals but, for now, we'll have to settle for implementing it for sex offenses.

12. Finally, create a strong presumption against granting bail to a convicted sex offender who is accused of another sex offense or violent crime. For constitutional reasons, we can't directly prohibit bail, but a law that says magistrates and judges should presume a person should not get bail is acceptable in certain cases, such as this.

13. NEW. Reinforce the authority of judges to revoke probation for any probation violation (WV Code 62-12-10).

Fell free to e-mail me if you have thoughts on this.