About 65-70 percent of my case load involves offenses of a sexual nature, whether its maltreatment through sexual harassment, or serious allegations of sexual assault or rape under Article 120 of the UCMJ. Keeping my clients out of confinement and saving their careers are clearly important to me and reasons I get retained to represent those who are accused. Something I tell all my clients though is that my number one priority is to help them avoid sex offender registration. Sex offender registration in the Military or Federal system is essentially a lifetime registration. Registration is an extremely harsh collateral consequence of an Article 120 conviction in the military. Its more harsh than any extended period of confinement or even discharge. Sex Offender Registration can be a crippling limitation on your life, affecting employment, where you live, and even whether you get married or not.
There is hope! A recent case which I outlined below is one which anyone who is registered should take to heart. The fact is, there is a considerable "disconnect" between the DOD and State Courts. In several states, one can petition to remove registration imposed by that state. However, states will continue to honor registration imposed by the Military or the Federal system. Remember though, the State prosecutors still have the burden of proof, and they have to prove that the registered petitioner was required to register with the Military or in the Federal system. Without that evidence, the state court judge can very likely rule in favor of Granting the Petition for Removal of Sex Offender Registration because there is no proof of registration.
The case summary below shows that there are avenues to successfully removing registration even if its because of a military conviction:
January 13, 2021, United States Coast Guard, Missouri State Court. Former Enlisted member with the Coast Guard had been convicted back in 2008. He entered a Guilty Plea and was convicted of "Knowingly Searching For and Attempting to Receive Child Pornography"". Following the conviction, he is processed and spends 8 months in confinement. He is told by unit personnel that he did not have to register as a sex offender for the particular charge which he received his conviction. After his conviction and in-processing to the brig, he did not sign any documents or forms acknowledging he would have to register as a sex offender. Moreover, nobody in the military required him to provide any information necessary for registration. Generally, following a court-martial conviction for a sex offense that is registrable, the convicted service member would be required to sign such documents acknowledging that the DOD required their registration in the military. At no time was he required to sign such documents. No such documents exist that he was required to register as a sex offender in the Military or in the Federal system. The member is released from the brig in September 2008. Approximately one week prior to his release date, he is told for the first time that he would have to register in the State of Missouri as a Tier One (I) offender. He properly registers in the State of Missouri and does everything he is required to do for ten years as a Tier One (I) offender. Due to a new law that is passed in Missouri, Tier One (I) offenders are permitted to petition for the removal of registration. However, because the State honors Federal registration, the State claims that he is not subject to the new law and therefore, his conviction under the UCMJ is a lifetime registration because Missouri will honor Federal law. Former Coast Guardsman retains Mr. Gapasin to represent him. Gapasin files a Petition to Remove Registration. Gapasin contacts client's previous Navy counsel, who provides an email to the court that his belief at the time of the plea is that the conviction would not result in registration. Gapasin also looks to DOD Instruction 1325.07 that was in effect at the time of the plea. The specific offense the client pleaded guilty to was not a crime that required sex offender registration in the military. Gapasin makes three separate appearances in State Court on behalf of his client and focuses on Selig v. Russell in his argument for the removal of registration, and how Selig did not apply to his client's case because he was never required to register with the Military nor with the Federal system at any time. The Court further noted that the State carried the burden of proof, but failed to provide sufficient documentation and evidence that registration in the Military or Federal system was, in fact, required. RESULT: Mr. Gapasin's Petition for the Removal of Sex Offender Registration is GRANTED. After TEN (10) YEARS of being a registered sex offender, Gapasin's client NO LONGER HAS TO REGISTER, despite the Federal system's lifetime requirement.