Megan’s Law was first enacted by New Jersey in response to the murder of 7 year old Megan Kanka in Hamilton Township, New Jersey. Megan was murdered by Jesse Timmendequas, a convicted sex offender who had recently moved into the home across the street from the Kanka family after having been released from the New Jersey correctional center charged with treating convicted sex offenders. The law was enacted to establish a registration system for all sex offenders, notification of local organizations in certain circumstances and community notification in other circumstances. Later the law was amended to include putting some offenders on the internet. New Jersey’s law is offense and offender driven.
Congress subsequently enacted a similar law calling for community notification of sex offenders typically known by the acronym, SORNA. The Federal law is solely offense driven. It is not binding on any State. The States are free not to adopt it. Congress has sought to push States toward enactment by holding back Federal Funding but has not been completely successful. Ironically New Jersey is one of many States to decline enactment of the Federal law.
New Jersey has a tier system which considers the nature of the offense and characteristics of the offender. It utilizes a risk assessment scale to determine if you simply have to register with the police, community organizations will be notified or neighbors will be notified. The factors to be considered are:
The degree of force used, if any;
The nature of the act (penetration, fondling over clothes or under clothes);
The age of the victim;
Victim selection (household/family member, acquaintance, stranger);
Number of offenses/victims;
Duration of offensive behavior;
History of other antisocial acts;
Response to treatment, if any;
History of substance abuse, if any;
Any therapeutic support;
Any residential support; and
Employment/Educational Stability.
Each category has scoring associated with it. If you score 0 to 36 points, you only have to register with the local police department in the community you live. If you score 37 to 73, community organizations may be notified and you may be placed on the internet. I say “may” because there are exceptions to the requirement. For example, the mental health professionals generally have opined that those that offend in the household setting are less likely to offend outside and therefore even if your points total more than 36, community organizations may not have to be notified. If you score 74 to 111, you fall into the category where neighbors will likely to be notified.
The classification process is first done by the local prosecutor’s office where you live. You will then be provided with their assessment. If you object, a confidential hearing will be conducted before a judge and he or she will be required to rule on your objections. It is also possible that through negotiation you can resolve your differences and have it approved by the court. If you do not object, the prosecutor takes the assessment to the court and it approves their determination. It is important however that you not blindly accept the findings as often an adverse finding can be modified.
New Jersey has not adopted the federal law because the federal law requires that any State statute must be solely offense driven if the federal government will accept it as compliant with their law. In other words, look at the offense of conviction and that is how you will be classified. Nothing else is considered. In order for New Jersey to join the federal law, they would have to completely revamp their process, something they have been hesitant to do. It is important to note, however, that the federal law calls for more notification including utilization of the internet and includes more offenses subject to the law. If New Jersey ultimately adopts the federal law, the offender is likely to be far more exposed to the public knowing about it then they currently are. Challenges to application of the law to those that offended before the law’s enactment have failed. If you find yourself in a situation where you have been charged with a sex offense, it is critical that you meet with an experienced criminal defense attorney familiar with both the State and Federal laws. While it may not change the disposition of your case, you should know all potential collateral consequences associated with a conviction.
This is not meant to be a complete explanation of either law but to give you a brief overview and hopefully make you aware of potential pitfalls. As noted, anyone charged with any offense which could be considered a sex offense should contact experienced counsel and go through the fine points of the law and how they may impact them.