How to Get Your Name Removed from the Sex Offender Registry
For those of us who practice in criminal law and do any work with sex offenses, the questions that come up regarding registry issues can be vast and complex. Often the kneejerk answer to registry questions boils down to, “You were convicted of a sex offense, so you have to register for life.” However, that is not always the case. I have seen many changes in the sex offender registry in South Dakota during the last ten years. We can now advise clients that registry offenses do not currently include South Dakota state misdemeanor sex offenses or most juvenile adjudications. SDCL 22-24B-1 and 22-24B-2. And there is the possibility to come off the registry, for some convictions. SDCL 22-24B-19 and 22-24B-19.1. So what convictions can someone later petition for removal from the sex offender registry? If the conviction was felony sexual contact (SDCL 22-22-7), statutory rape (22-22-1(5)), or attempted statutory rape (22-22-1(5)), provided the registrant was no more than 21 years of age at the time of the offense, or it is a juvenile adjudication for rape, then the registrant may be eligible under Tier I for removal as soon as 10 years after initial date of registration. SDCL 22-24B-19(1)-(2). If the conviction was for incest (22-22A-2) or bestiality (22-22A-42), the registrant may be eligible under Tier II for removal as soon as 25 years after initial date of registration. SDCL 22-24B-19.1(1)-(2). If the registrant’s offense is from out-of-state, federal, or court martial offense, the registrant can petition for removal of the South Dakota sex offender registry for any of the above listed offenses for Tier I or II, except for bestiality. SDCL 22-24B-19(2)(d) and 22-24B-19.1(2)(b). In all cases, the offense cannot involve a child under 13 at the time of the offense. SDCL 22-24B-19(3) and 22-24B-19.1(3). All other registrants are in Tier III, which is currently a lifetime registration requirement. SDCL 22-24B-19.2. Other qualifications include the registrant not being a recidivist sex offender (not having more than one qualifying registry offense). SDCL 22-24B-19(4), 22-24B-19.1(4), 22-24B-19.3. Additionally, the registrant needs to have substantially complied in good faith with the registration and re-registration requirements. SDCL 22-24B-19(5) and 22-24B-19.1(5). Lastly, the registrant needs to demonstrate to the satisfaction of the court that he or she does not pose a risk or danger to the community. SDCL 22-24B-19(6) and 22-24B-19.1(6). Some other nuances include how the time is calculated. Any period of time during which the registrant was incarcerated or during which the registrant was confined in a mental health facility does not count toward the 10 or 25 year calculation for the respective tiers, regardless of whether such incarceration or confinement was for the sex offense requiring registration or for some other offense. SDCL 22-24B-19 and 22-24B-19.1. Additionally, the registrant previously petitioned for removal and was denied, the registrant may not file a subsequent petition for at least two years from the date the previous petition was denied. SDCL 22-24B-20. So if the registrant possibly qualifies for removal under either Tier I or II, how do you petition for their removal? Now you start the information gathering. One of the first areas that you may want to start is by getting a full statewide criminal record search. However, you will also need to attach this to the petition, so you may want to wait until closer to submission of the petition. Either way, you can order one through the Spink County Clerk of Court. It is on the home page under Court Records, and under the Self Help Center for Court Records. The link is http://www.ujs.sd.gov/Self_Help_Center/recordsearch.aspx if you don’t otherwise find it. Or search for “record search” on the ujs.sd.gov website. The record search will cost $20 per each name, even if an alias. Another document that you will need to obtain is a printout of the registrant’s sex offender registry information. This can be obtained from the South Dakota Sex Offender Registry at https://sor.sd.gov. You will want to make sure the information appears to be accurate. If not, you will want to get this corrected before the petition is submitted. To correct any errors, you are going to need to get certified copies of not just the judgment, but also the charging documents from the registrant’s offense, which you need to obtain for the petition as well. When doing the petition for removal, the statutes that you are relying upon are SDCL 22-24B-8, 22-24B-17, 22-24B-18, and 22-24B-19 or 19.1, depending upon the registrant’s tier. Go through all of the factors listed in each of those statutes in the petition. I found it easiest to start with SDCL 22-24-18 (the information required in the petition), which then jumps into 22-24B-8 (the information required for registration of a convicted sex offender). Then I ended with SDCL 22-24B-19 (or 22-24B-19.1, if a Tier II). If you want a hearing before the Court renders its decision, you must make that request in your petition. However, you cannot set a hearing until later, which I will explain. The petition can be filed either in the county where the charge originated, or where the registrant is currently residing. SDCL 22-24B-17. In your certificate of service, you need to send the entire petition and attachments to the Attorney General, as well as the State Attorney of the county in which you are filing, and, if not the same county, the State Attorney of the county of the where the charges originated from. SDCL 22-24B-17. If the registrant is petitioning for removal for an out of state, federal, or court martial offense, you still need to send the entire petition and attachments to the office of the prosecutor in the jurisdiction where the offense occurred. SDCL 22-24B-17. When you file, because this is a civil file, you will need the civil filing statements for the parties and a civil filing fee, which is about $70. After you send out the petition, you then wait for a response from the Attorney General’s Office. There is no set time limit for their response. If you set a hearing before you receive their response, the hearing will be cancelled. As far as who runs the hearing for the State, it is the local State’s Attorney’s Office, who doesn’t get the file from the Attorney General’s Office until after the response has been filed.