BROADCASTS.com

Published: Feb. 26, 2016, 9:58 p.m.

b"

Jacqui Ford, Jacquelyn Ford Law, P.C.: Welcome to Your Best Defense podcast. My name is Jacqui Ford. And we are talking this week about sex offender registration. It\\u2019s part of the important things you have to consider when you're charged with sex offenses in Oklahoma. Is whether or not you're going to have to register. How long you have to register. And what are some of the constraints within that. registration

\\n

I'm joined here today with my friend, mentor and law partner Mr. Jack Dempsey Pointer. Jack literally wrote the book on sex offender registration in Oklahoma. He is a go to expert in the field. Lawyers, prosecutors, judges alike rely on his expertise in understanding the sex offender registration act and how it is applied to offenders within the state. So, thanks for joining us Jack.

\\n

Jack Dempsey Pointer, Jacquelyn Ford Law, P.C.: Miss Ford, thank you very much for your solicitous remarks concerning me. I appreciate that very much. But I\\u2019m still going to be a little bit hesitant to talk about some of this.

\\n

JF: Okay.

\\n

JDP: Simply, because it\\u2019s so fact intensive \\u2013 literally fact intensive. I had an individual call me about sex offender registration. The man was a Kansas resident. This is out in the panhandle He was a Kansas resident who was convicted of a sex crime in Oklahoma. He then moved, he didn\\u2019t move, he just went back to Kansas on probation. And he had to register in Kansas. There are some provisions, I don\\u2019t know all the particulars because the attorney\\u2019s not coming in until next week. But apparently there are some provisions in the Kansas registration scheme would allow him to get off of sex offender registration. That\\u2019s an unusual situation. You\\u2019re convicted in one state requiring registration \\u2013 a crime that requires registration. And you\\u2019re serving your registration period in another state that has different provisions. It almost sounds like a law school quiz. But, it basically is. But that remains to be seen.

\\n

One of the important things, and the reason I\\u2019m kind of hesitant to talk about in any specifics, is simply because the law is written so, and has been amended so many times. I can give you just a perfect example. Before April 26, 2004, and individual had to register 10 years from the date of the conviction. After April 26, he had to register 10 years from the date of completion of the sentence. Now, that\\u2019s kind of important because the completion of the sentence, for instance, if a guy got 20 years suspended sentence, he doesn\\u2019t complete the sentence until 20 years after his

\\n

JF: Conviction date.

\\n

JDP: Yeah, after his conviction has expired. And, so, the guy would have to register 10 years after that. That\\u2019s a total period of 30 years, as compared to 10 years.

\\n

JF: And the laws just continue to get worse, it seems like. Each year, more and more crimes are registerable offenses. The Department of Corrections has their own administrative policies. And the legislation really isn\\u2019t, at this time, geared towards limiting the amount of registration. Or giving any relief to the offenders. It\\u2019s more geared up towards making people register longer, and limiting rights and options of offenders for longer periods of time. And with it being ever-changing, that\\u2019s why it\\u2019s so important that we find criminal defense lawyers that are qualified in defending sexual offense crimes, and can and understand and explain this to folks. Because it\\u2019s complicated.

\\n

JDP: A qualified attorney in sex offender defense, or sex offender cases, is a critical decision. You\\u2019re not going to open up the phone book, or get on the internet, or anything like that, and find somebody who says, \\u201cHey, I\\u2019m a sexual defense attorney.\\u201d We can\\u2019t say specialization in Oklahoma, but a lot of us are. But finding somebody qualified to represent you in a sex charge is important because if there\\u2019s a conviction, then sex offender registration comes to the forefront immediately. And not only does if affect where you live. It also affects how you can go to school, church, the things of that nature.

\\n

JF: It affects the romantic relationships that you\\u2019re allowed to be in. It affects the internet use, and computer use.

\\n

JDP: And who can live in your house. Okay? In another words, if one of the victims of your act of, lewd molestation or something like that, if one of your children is the victim, you can\\u2019t live in the house. If you can\\u2019t move the kid out, you can\\u2019t live in the house. However, grandchildren, step-children, so-on and so-forth, it they were not victims of the crime \\u2013 that\\u2019s okay. Because, in this day and time of blended marriages and divorce and all that kind of good stuff, you get a lot of questions about that.

\\n

But back to this qualified attorney to represent you in sex offense charges. That individual will, if they don\\u2019t know the specifics of sex offender registration, and quite frankly, if they do I\\u2019d shocked. Because it\\u2019s an entire statute, of 10 or 12 statutes, that are constantly being amended, and also amended by court cases. They at least know to pick up the phone and call somebody like me who knows something about this stuff to answer these questions.

\\n

Because the judge is supposed to, at the time of sentencing, designate this individual that was convicted, whether it be a jury or plea or whatever, a level, an offense level for registering. And that\\u2019s very important. Because in the state of Oklahoma there are three levels. Number one, two, and three. The Oklahoma Department of Corrections has set forth those levels in their regulations. And very few people know how to get to those sites, too.

\\n

But, you know, the first level is like 20 years. You also, in the state of Oklahoma, can commit a first offense, and actually be designated as a habitual or aggravated sex offender. Which means that you got to register for life. Registration for life means just that. Life. No relief whatsoever. We\\u2019ll talk about relief in a little while.

\\n

But when you\\u2019re talking about committing the following acts as a first offense, to become habitual sex offender you got to have a second conviction of a sex crime from any particular date. Or, you enter the state of Oklahoma after 1997 and been convicted of additional sex crimes. They declare you a habitual sex offender, and you register for life.

\\n

An aggravated sex offender, and this is the one people worry most about. If you commit the crime, the first crime, just the first time (child sex abuse, incest, forcible sodomy, rape one or two, lewd acts with a child, and then rape by instrumentation, or the person was a victim in custody of a school or state institution, etc.) you\\u2019re declared an aggravated sex offender and you must register for life. Period.

\\n

Law enforcement shall notify the family of the offender, the victim of the offender, neighbors, churches, parks, schools, convenience stores, businesses, and other places kids may hang out, nursing, residential, assisted living, and adult day care centers that there\\u2019s a habitual or aggravated sex offender living in the neighborhood. Or living in a town. There\\u2019s no limit on what they can do.

\\n

JF: There\\u2019s really no hiding from this.

\\n

JDP: None.

\\n

JF: So, let\\u2019s talk a little bit about how you find yourself getting on the sex offender registration. If you don\\u2019t want to be a registered sex offender, it\\u2019s real easy to say, \\u201cDon\\u2019t commit a sex crime.\\u201d Right?

\\n

JDP: Yes.

\\n

JF: But how is it we find ourselves on the sex offender registration, and what does registration really mean? What does it mean to have to register as a sex offender?

\\n

JDP: Well, to register as a sex offender, it kind of depends on where you live. In metropolitan areas Oklahoma City, Tulsa, probably Lawton, and maybe of the larger towns, they have sex offender registration units, of those police departments. I think maybe even Canadian County, El Reno has one. You have to go over there, and within three days of moving into the county, or within three days of being convicted, and actually sit down, go make an appointment, find out where it\\u2019s at, go sit down, and fill out the information \\u2013 where you live, social security number, so-on and so-forth, and all that good stuff \\u2013 and register.

\\n

The registration requirements depend on what the crime was, how long you\\u2019re on registration for, and things of that nature. I mean, there is a Department of Corrections sex offender registration which writes the rules and regulations. But at a local level, you actually sit down to do that.

\\n

JF: And how many times do you have to that? Do you just do it one time?

\\n

JDP: You do that one time. Unless, if you move to, say Oklahoma City to Guthrie, you got to go register with the local police department. And the police department\\u2019s probably going to send you over to the sheriff\\u2019s department. Okay? Fill out the same paper work. So-on and so-forth. Do you have a DOC number? Even though you have not been in prison, you still have a DOC number in the sex offender registration unit. They\\u2019ll pull you up, and they say, \\u201cOkay. You got to register like this.\\u201d

\\n

The worst kind of sex offender registration is the habitual and the aggravated. You got to, like, every 90 days go in and say, \\u201cI live here. I still live there.\\u201d You verify and so-on and so-forth like that, for the rest of your life.

\\n

JF: Are you subject to interrogation or questioning from law enforcement while you\\u2019re registering?

\\n

JDP: It really depends on who you\\u2019re involved with. The Oklahoma Court of Criminal Appeals held years, and years and years ago, that when the Department of Corrections had a sex offender unit, and a sex offender treatment plan, that you could not refuse to say, \\u201cHey, I did it.\\u2019 Some of the people that went were in prison. They said they we\\u2019re wrongfully accused, along with wrongfully convicted. And they were back in there for the sex offender, and they refused to say, \\u201cI did it.\\u201d Well, at that point in time they were kicked out of the program. Well, one person didn\\u2019t like that so he took it to the Oklahoma Court of Crims. And the Oklahoma Court of Criminal appeals said, \\u201cOh, no. You don\\u2019t have to admit to it. All you do, is you just go in and do the program and so-on and so-forth.\\u201d

\\n

JF: Acknowledge that you we\\u2019re convicted of it without having to admit guilt.

\\n

JDP: That program no longer exists \\u2013 state funding. Usually, it\\u2019s not a situation of why their trying to interrogate you, or anything like that. When there is a sex offense committed, I think one example here in Oklahoma City was somebody was driving down a street in a pick up truck, and he looked like this, and so-on and so-forth. Making lewd remarks to kids, and trying to get them in the truck. Well, the Oklahoma City police has a handy-dandy list they can pull up. What kind of car the person drives. Where they live. Where the proximity to the area where this took place. And they can go out and talk to these people.

\\n

So, I have not decided whether sex offender registration is an effort to keep people from re-offending, or it\\u2019s just a huge monstrous pot for the cops to be able to go and check out people who are recidivist, and predators, and are always going to be available to the list. I personally am of the opinion that sex offender registration, has never, never stopped an individual from committing sex act after they have been convicted.

\\n

It is a way, and they use it, and they use it very, very heavily. They rely on it very heavily to go out and talk to people about \\u2013 you\\u2019re kind of automatically a suspect if you want to do it like that.

\\n

JF: Well, it keeps the neighbors on alert, too. So, the government then gets to pry into your personal and private life. Not only by interviewing those around, but understanding is also during your registration process they get to ask you all kinds of questions. \\u201cWho lives in your home? Who are you dating? Does that person have children? How does that interaction work? And so, part of the registration is having to be able to answer those questions that the average Joe is not going to have answer those questions to law enforcement. So, we kind of compel people to give up their Fifth Amendment right to remain silent. And we\\u2019ve compelled them also to kind of waive some of their Fourth Amendment rights to be free from warrantless searches and seizures.

\\n

JDP: If you\\u2019ve committed a murder, and you\\u2019ve served your time, and you come out, and you\\u2019re on parole, they\\u2019re not going to ask you all those questions. They want to know where you live. If you\\u2019ve got a phone. Where you work. The car you kind of drive. But not all those other questions. Murder, you know? Somebody committed a murder. Sex offender registration they dig in as far as they can. And it\\u2019s not an interrogation, but it comes across like one, because if you don\\u2019t answer these questions we\\u2019re not going to supervise you.

\\n

I want to talk about people, and where people live.

\\n

JF: Okay.

\\n

JDP: There are two different zones of prohibitions for sex offenders. One is 2000 feet. And that\\u2019s from property line to property line of any school, church, day care, playground, any state institution that deals with children or anything like that. You can\\u2019t live in that area.

\\n

There\\u2019s a second one called a safety zone of 300 feet from a school that sex offenders cannot loiter. You can\\u2019t go out there and park your car in the parking lot at a grade school and smoke cigarettes and watch the kids. Bang. That\\u2019s 300 feet. They don\\u2019t need any probable cause. They come in and say, \\u201cHey, are you a registered sex offender?\\u201d \\u201cYes, I am\\u201d You\\u2019re within 300 feet, there not going to tell you just, \\u201cMove,\\u201d they\\u2019re going to arrest you.

\\n

The 2000 feet exclusion. They\\u2019ve had some problems with that. You start taking 2000 feet, and I think in Cleveland County, in Norman, I don\\u2019t think there\\u2019s any place in Noman where you can live.

\\n

JF: I think they\\u2019ve almost limited that in the Oklahoma City metropolitan area, too. And when you know this, you start paying attention. You look around and there\\u2019s a swing-set on the side of the road. That\\u2019s not in a neighborhood. It\\u2019s attached to a church, or a day care. It\\u2019s just a swing-set in a kept area with the grass mowed. We\\u2019re calling that a park. And those swing-sets and playgrounds, are specifically designed to keep sex offenders out. I know one of my old neighborhoods in Edmond had three separate playground areas for one, little neighborhood. And that was why. Because the big neighborhood couldn\\u2019t protect everybody with their one playground. So they put one at each entrance, and one in the middle.

\\n

JDP: Very few people realize this, that when a subdivision, nowadays, is created, I think it\\u2019s mandatory that they build in a park - for the subdivision. Or some type of facility where there is a swimming pool, or something like that, where people can go and kind of enjoy themselves, and everything like that.

\\n

I had a case one time where an individual was charged with being within 2000 feet of park. I drove out there, and there wasn\\u2019t any swing-set. There wasn\\u2019t anything. There wasn\\u2019t anything. It was vacant land. It had never been funded. It had never been built. But it doesn\\u2019t make any difference. It was designated as a park, and actually given to the city of, I can\\u2019t even remember what town it was, Bank. It was owned by the city. And, even though it wasn\\u2019t a functioning park, the guy couldn\\u2019t live within 2000 feet of it.

\\n

The one exception, and this is a huge exception, if you own property, a house, before you were convicted of a sex offense, and it was within 2000 feet of a, one of these prohibited places, you can still go back there and live. They cannot kick you out. It would be a punitive act. There is an Attorney General\\u2019s opinion from the state of Oklahoma specifically on that issue. They can\\u2019t make you move.

\\n

Now, rental? Yeah, you\\u2019re done. You can\\u2019t go back and rent. And it says if you intentionally establish a residence within the 2000 foot, you can be arrested. Whether you\\u2019re habitual, or whether you\\u2019re a first-time registration, or 15 years, or 10 years, or whatever the hell it is.

\\n

JF: So, when we talk about these people getting arrested. They\\u2019re getting arrested and charged with a new felony of failure of failure to comply with the Oklahoma Sex Offender Registration Act. Right?

\\n

JDP: Yes. That\\u2019s absolutely correct.

\\n

JF: And that new felony can be used, not only to violate the probation that you may be placed on, but also to give you new time that you\\u2019d be facing incarceration on new charges.

\\n

JDP: And that\\u2019s absolutely true. And, in other words, it\\u2019s just not, like I gave the example of the guy that was sitting in the parking lot of the school. He probably on some type of probation. And, in other words, he spent some time in prison, or he got probation after he\\u2019s still serving out his suspended sentence. There are serious, serious consequences about them doing that. Now, whether they\\u2019re all told this \\u2013 they\\u2019re supposed to be told this, and they sign a certificate when they leave prison. By the way, when you\\u2019re in prison your sex offender registration period does not run. It only begins to run when you leave prison.

\\n

Now, these are, the applicability of these provisions are specific statutory provisions of which a person must be convicted to be a sex offender registration - that\\u2019s been held by courts. Abuse, neglect, and exploitation of a child under 18, if sexual offense, abuse is involved. Attempt to commit a felony, if sexual offense is involved. Kidnapping, if sexual abuse or exploitation is involved. Caretaker abuse, if sexual assault. Child endangerment, if sexual abuse is involved. Trafficking in children, incest, sodomy, forcible sodomy, child stealing, if sexual abuse is involved.

\\n

That\\u2019s the example that\\u2019s that woman that went over, stole her kid, and they were in a domestic dispute. She went over to seize and kept him over there, no sexual abuse involved. Just straight kidnapping, child stealing.

\\n

Indecent exposure. Computer drawings, CDs, you know, all that kind of good stuff, for child porn. Obscene materials, where minors are procured. Obscene materials regarding, or appearance involved, or children involved. Possession of child pornography. Publishing, distribution of child pornography. Aggravated possession of child pornography. Import, distribute, child pornography. Facilitate sex with a minor. Trafficking obscene materials. Procuring a child under 18 for prostitution. Procure and restrain a child for prostitution. Rape by instrumentation. Rape 1 and 2. And lewd molestation.

\\n

That involves about 20 or 30 separate crimes in that one statute. And you\\u2019ve really got to use it very, very, carefully.

\\n

Those are all the crimes that, right now, are, you have to register. Now, one other thing, is there\\u2019s several crimes that are not on there. \\u2018Peeping Tom\\u2019s\\u2019 haven\\u2019t seen that. There\\u2019s are some exceptions, but they pretty well get them. But, like I said, these are the ones. And most of them are 85% crimes, too. These guys serve 85% of their time.

\\n

So, that\\u2019s how you get on the sex offender registration list.

\\n

JF: Is there any way to get off, once you\\u2019re on?

\\n

JDP: Yes. There is, and we call that, I think. If you are a Level 1, which means you\\u2019re registered for 10 or 15 years, you have not been arrested, arrested only for a felony or a misdemeanor. Now, it remains to be seen, a traffic stop is not an arrest. You\\u2019re being detained. So, you got to be straight \\u2013 no arrests. You were not convicted of felony or a misdemeanor in 10 year, since a release from confinement. You petition where you reside to remove the risk number, and no longer register. The district attorney, of course, has the right to object to that. And, the district judge must, must, agree to that. And then they can take you off.

\\n

There is one other thing, too. And this we call the \\u2018Romeo and Juliet\\u2019 registration.

\\n

JF: \\u2018Romeo and Juliet\\u2019 is the scenario, wherein the teenagers who love each other engage in a consensual act. And they fail to recognize that they are not lawfully of consenting to one another. So, it\\u2019s a strict liability crime. We\\u2019ll talk about some of that in some of the other podcasts. But \\u2018Romeo and Juliet\\u2019 is the boyfriend/girlfriend, no harm, no force, no violent act. Just two kids who didn\\u2019t know they couldn\\u2019t do what they did. Right?

\\n

JDP: That\\u2019s correct. And, by the way, I just recently heard of some people who were being prosecuted for a sex crime starting at the age of 10. So, you need to be careful. This \\u2018you show me and I\\u2019ll show you\\u2019 and this \\u2018doctor stuff\\u2019 for kids is gone.

\\n

JF: Because sex offender registration we don\\u2019t have to spend a lot of time talking about it . But the registration applies to juveniles as well.

\\n

JDP: It does.

\\n

JF: If you\\u2019re in juvenile court, and you\\u2019re charge with a sex crime, especially if it\\u2019s one those enumerated as an aggravated sex crime, you may very well be facing lifetime registration before you even hit the age of an adult.

\\n

JDP: That\\u2019s absolutely true. \\u2018Romeo and Juliet\\u2019 \\u2013 the removal of the requirement to even register as a sex offender. If you\\u2019re convicted of 21 OS 1111.1, that\\u2019s second-degree rape. And, 21 OS 1114, that\\u2019s first-degree rape, or rape by instrumentation. You have no prior violation of the above two sections. You\\u2019re required to register based solely on violation of those two section. And your age requirement. Listen to this, the defendant is not more than four years older than the victim. And the victim was at least 14 years of age, or older. But, the victim, not more than 17-years old at the time of the violation. I know that seems a little, if you stop and think about it, the numbers don\\u2019t add up. Well, yeah, they do. If the kid\\u2019s 17, we\\u2019re into an adult situation.

\\n

If the defendant meets the above requirement, then they can be considered for removal. You must petition the court where the conviction occurred for removal. And the requirement must allege that removal does not conflict with the Adam Walsh Sex Offender Registration Notification Act. And that, is offenses involving consensual sexual conduct, if an adult, or was at least 13-years old. And the offender was not older than four years older than the victim. And then there\\u2019s a bunch of other stuff. And you may not have to even register then.

\\n

JF: But, of course, that\\u2019s not automatic. You\\u2019re going to have to hire a lawyer, petition the court, have a hearing, and the court\\u2019s going to make that determination for us.

\\n

JDP: This is not what we call pro se. Where you go in and say, \\u201cYou know, the girl was 15. My son was 18. That works.\\u201d The court\\u2019s going to, \\u201cWho\\u2019s you lawyer?\\u201d That\\u2019s exactly what it comes down to. This is not something that you get training wheels to learn how to get out of automatic sex offender registration.

\\n

JF: So, when we\\u2019re looking for lawyers, not only in our original charge, that might give rise to sex offender registration, but as we\\u2019re already registered. And we need relief. We have find someone who has experience dealing with the Sex Offender Registration Act. Because, quite frankly Jack, let\\u2019s be real serious, most lawyers don\\u2019t like touching these cases.

\\n

JDP: No, they hate them.

\\n

JF: And most lawyers will say whatever they can to get that person off the phone. And you can\\u2019t necessarily rely on the advice that\\u2019s given to you if you\\u2019re talking to someone who has some pretty strong experience, and has worked in this field for quite some time.

\\n

JDP: That\\u2019s correct. That\\u2019s correct. You cannot, under any situation, when you\\u2019re involved with an allegation of committing a sex offense. That\\u2019s almost as bad, as I just pointed out here, it\\u2019s worse than murder. I mean, the consequences go on forever.

\\n

JF: Absolutely.

\\n

JDP: And, you know, think about this, if you commit murder, you\\u2019ve served your time, and you were on parole, and you committed another crime. You\\u2019re going to go back to prison. They\\u2019re not going to charge you with another crime. You go back to prison.

\\n

Sex offender? You get caught within 300 feet of a school. You\\u2019re just sitting there loitering. You\\u2019re going to get charged with loitering within 300 feet, and you\\u2019re going to be charged. And if you\\u2019re on probation, these charges are probably going to be in addition to whatever probation is going to be revoked.

\\n

JF: This is a \\u2018stack on\\u2019 kind of statute. We can stack on, and pile on the charges.

\\n

JDP: And the reason that sex offenders are treated so harshly is they don\\u2019t have much of a constituency among the electorate.

\\n

JF: Well, in our Sex Offender Registration Act, one of my big criticisms of it, is it doesn\\u2019t really differentiate on the registry the difference between a home invasion serial rapist committing violent acts, offensive to anybody who you ask, versus the \\u2018Romeo and Juliet\\u2019 situation. It\\u2019s not like if I want to Google up the sex offenders in my neighborhood, the \\u2018red\\u2019 ones are really, really, bad, and the \\u2018purple\\u2019 ones are. You know? This was just a boyfriend/girlfriend situation that got out of control. There\\u2019s no difference when the public is looking at these folks. One is just as bad the other.

\\n

JDP: Yeah, as a criminal defense attorney, Jacqui, you\\u2019re aware that sexual battery is a crime?

\\n

JF: Yes, sir.

\\n

JDP: And you aware that it\\u2019s a registerable crime?

\\n

JF: That\\u2019s correct. All sex offenses appear to be pretty registerable.

\\n

JDP: And, I\\u2019m going to ask you if you\\u2019re been in a bar someplace, and you\\u2019ve had a little too much to drink, and somebody walks by, and you pinch their butt. And they don\\u2019t seem to, male or female, and they don\\u2019t seem to like that, and report that to the police. Is that a crime?

\\n

JF: That is a crime.

\\n

JDP: And is it registerable?

\\n

JF: Yes, it is.

\\n

JDP: So, we\\u2019re not talking about something where you now have free reign to be as wild and crazy as you want to be in some kind of a bar, or something like that. You really, really need to kind of watch yourself. And this, we\\u2019re talking about this, a legislator was charged in Oklahoma City, county charges I should say, about 10 years ago. I never heard what happened to that case. Which means if you never heard what happened, it resolved in a very satisfactory manner to the defendant.

\\n

Very few people know that ice cream truck or vending things. You know? You see the guy walking down the street. If he\\u2019s a sex offender he\\u2019s got to register. If he engages in ice cream vending without a registration he could be arrested without a warrant. Same for sole proprietors.

\\n

If you are harboring or aiding a sex offender. If a person believes a sex offender is in violation of sexual registration requirements, and withholds information about their whereabouts, they\\u2019re in violation of a misdemeanor.

\\n

JF: So, if you know someone should be registering, and they\\u2019re not, you too have committed a crime if you don\\u2019t report them?

\\n

JDP: That\\u2019s absolutely right.

\\n

JF: If you know someone is, in fact, registered. But their living arrangements are not purported to be true, and you\\u2019re facilitating that. You now, have also committed a crime.

\\n

JDP: See, it says, sex offender is in violation of sex registration requirements. All of them. Living too close to a school, a park, a day care, a victim of sex abuse is in the home. I mean, there\\u2019s so many things that a person becomes responsible with. That\\u2019s why people don\\u2019t want to hang out with sex offenders. They carry so much baggage.

\\n

Sex offenders are, or were, subject to Sex Registration Act, and child custody and guardianship. There\\u2019s a rebuttable presumption, a rebuttable presumption. Miss Ford, can you tell me what that is, please?

\\n

JF: That means that you are presumed to have violated. And you, the accused, have the duty and burden to prove that you did not violate.

\\n

JDP: A rebuttable presumption is created that it is not in the best interest of a child to have custody or guardianship granted to a person who has, or is, subject to sex offender registration. So, if you are in a divorce proceeding, and you\\u2019re registered sex offender, or a prior registered sex offender, the court\\u2019s not going to give you that kid. They\\u2019ll allow visitation.

\\n

JF: Even if that is you\\u2019re kid from the \\u2018Romeo and Juliet\\u2019 set of circumstances, if you didn\\u2019t go to the trouble of getting off the registration. And, even if you did. That court may deem that you are not suited to raise you own children.

\\n

JDP: That\\u2019s true.

\\n

JF: That\\u2019s a devastating impact that most people don\\u2019t think about.

\\n

JDP: Now, let me tell you some of the things that are not registerable sex offenses: use of profane language in public, or breach of the peace. So, you can get up and curse at the barmaid. Just don\\u2019t pinch her butt.

\\n

Running a whorehouse, keeping a whorehouse, providing property for a whorehouse. Pimping. Being a prostitute. Every possible sex act that you can think of, as long as it\\u2019s paid for. Opening and running a strip bar. Outraging public decency.

\\n

JF: Now, this is the one that everybody says, \\u201cI know a guy who has to register on the sex offender registry, and he was doing was peeing in a park.\\u201d That guy\\u2019s full of crap. He\\u2019s not getting on the registration list because he urinated in a park? Am I right?

\\n

JDP: Under 21 OS 22, it used to be a registerable offense. Now, it\\u2019s only registerable if you\\u2019re urinating in public, and getting a little excited about it.

\\n

JF: For the purpose of sexual gratification.

\\n

JDP: And the only person that could possibly be sexually gratified is yourself. So, be careful.

\\n

You can\\u2019t curse in front of women and kids \\u2013 not registerable. \\u2018Peeping Tom\\u2019, there it is. It\\u2019s a misdemeanor. \\u2018Peeping Tom\\u2019 with a cell phone, and/or publishing such images. I think it says up-skirt photos? At my age you cant\\u2019 get down and up that easy. So you\\u2019re going to have to read about it. Obscene phone calls \\u2013 not registerable. A projection that\\u2019s showing obscenity. Showing dirty movies in a drive-in theater. Pandering and procuring prostitution. Restraining, pandering, seduction of an unmarried female of previous chaste character by promise of marriage. Abduction of a person under 15-years old for the purpose of marriage, or concubinage. And dealing with seduction, marriage, and abandonment, and indecent exposure. That\\u2019s an entirely different section that we really don\\u2019t have time to get into.

\\n

\\u2018Peeping Tom\\u2019 again is not registerable. Unless you do it over, and over, and over, and over. Those are not registerable offenses. They are few and far between.

\\n

JF: Thank you so much Jack for imparting your knowledge and wisdom to us today. Is there anything about Sex Offender Registration Act that you think we need to know that I wasn\\u2019t smart enough to think of to ask?

\\n

JDP: One of the things of the Sex Offender Registration Act that I think is unconstitutional is if you receive a deferred sentence in Oklahoma

\\n

JF: And a deferred sentence, for people who may not have listened to some of the other podcasts, is a special kind of probation, in which you enter a plea of guilty or no-contest, but the court does not find you guilty and convict you at that time. He places you on a deferred. Meaning he\\u2019s going to set off sentencing for a time. It is not a conviction under any circumstances, except a few. And this is one where it will be treated just like a conviction. Even though you\\u2019re not convicted.

\\n

JDP: Yeah, it\\u2019s basically a withholding of the adjudication of guilt. But, the Department of Corrections \\u2013 you got to register. Period. Okay? Now, if you get a deferred sentence in Kansas, and you come to Oklahoma, you don\\u2019t have to register. That\\u2019s not fair. That\\u2019s what you call unequal protection of the law, which is a violation of the 13th and 14th Amendments. That\\u2019s right.

\\n

We had a decision two years ago, now, I think, called Starkey vs. Oklahoma County, or something like that. And it was a groundbreaking case that said you can\\u2019t apply all these Acts, and all these \\u2018you can\\u2019t live here, and you can\\u2019t do this, and so-on and so-forth,\\u2019 You can\\u2019t apply those things retroactively. Starkey was a gentleman that had been convicted before all these things were passed. One of the big things is, and you have to look, and look, and look \\u2013 aggravated and habitual sex offenders they had a great big go-over \\u2018S.O.\\u201d on their driver\\u2019s license.

\\n

JF: That\\u2019s right. We haven\\u2019t talked about that. But, much like if you\\u2019re on a modified driver\\u2019s license for a DUI, and you have to have a Breathalyzer. The new way of identifying sex offenders is they put it in great big letters on your ID. Which you have to present for any reason \\u2013 buy beer, buy cigarettes, get through TSA. There\\u2019s no hiding.

\\n

JDP: Then all of a sudden everybody\\u2019s ears are perked up, \\u201cHey, look at that perv. He\\u2019s a sex offender.\\u201d

\\n

JF: And again, the sex offender stamp, doesn\\u2019t say, \\u201cHad sex with his girlfriend when he was 17 and she was 15.\\u201d Right?

\\n

JDP: That\\u2019s correct. Just broadly says bang, you\\u2019re a habitual sex offender. Very few people know that that does exist. A normal, or usual, a non-aggravated, non-habitual sex offender, does not get his driver\\u2019s license with a sex offender thing on it. It is, what it is.

\\n

JF: So, there\\u2019s room, oftentimes, from the perspective of helping our client. Just because we\\u2019re accused of doing it, even if we\\u2019re guilty of the violation or guilty of the original act. There\\u2019s room for negotiating around the sex offender registration. But, that has to happen at the onset of initial criminal act, almost.

\\n

JDP: That goes back to: you cannot go down through the phone book and say, \\u201cOh, this guy advertises he does criminal law.\\u201d

\\n

JF: \\u201cOr, this guy helped my Aunt Susie with her DUI onetime. I\\u2019ll go see him.\\u201d

\\n

JDP: This thing has become such a, the Oklahoma County District Attorneys office has a unit.

\\n

JF: The Special Victims Unit.

\\n

JDP: And that\\u2019s all they do is prosecute sex offenses. Now, if they are, there\\u2019s like four people, I think running that thing. And if they have unit that is dedicated to sex offenses. They don\\u2019t have any other unit. I mean, all the rest of the other DA\\u2019s can handle it, and everything like that. Why would you go out and hire somebody who helped Aunt Janie get out DUI 20 years ago? When you\\u2019re going up against people who have multitudes of years of experience in trying cases, and putting them on, and taking them down here to the nature house, and letting them give good interview, and so-on and so-forth. And use dolls. All of those things are subject of all kinds of problems.

\\n

And don\\u2019t get me wrong. There are some people that practice law, that try cases all the time, that don\\u2019t handle sex offenses, that are damn good lawyers. But, by God, you get a sex offense, you better find somebody that knows what the hell they\\u2019re doing. And all you have to do is ask one question. \\u201cSir, or ma\\u2019am, what is the child accommodation syndrome?\\u201d

\\n

JF: It\\u2019s important, at that point, to check your lawyer. Interview them. This is your case. It\\u2019s not their interview. They\\u2019re not here to pick and choose which case they\\u2019re going to have. They have that right. But, you, as the offender, or the accused, have a very, very, very special position where you get to put the lawyer in the hot seat. And we suggest that you do it. Because there\\u2019s only a handful of law firms in the metropolitan area that I would think are qualified, and experienced enough, that I would trust them to handle a case for my friends or family.

\\n

JDP: It\\u2019s a situation, and a lot of people go, \\u201cI\\u2019ve never dealt with a lawyer before.\\u201d And they go in. And they think because they\\u2019re talking to them, they have to hire them. Not so. Conduct an interview. Ask them if they know what a child accommodation syndrome is. If they don\\u2019t, and you don\\u2019t have a clear understanding of what it is, excuse yourself and say, \\u201cI\\u2019m sorry. I need to go to somebody else.\\u201d

\\n

JF: This is not a case in which you want to discount shop. You\\u2019re not looking for the cheapest lawyer in town.

\\n

JDP: And, by the way, finding a criminal defense attorney, that does not judge you, does not question you, does demean you, does not embarrass you, but, yet, is competent to handle these cases ain\\u2019t cheap.

\\n

JF: That\\u2019s right.

\\n

JDP: Because 99% of the lawyers, they don\\u2019t want to have a reputation of being next to those people, or next to them. Because they don\\u2019t want to answer a question at a party, \\u201cWhy do you represent these sex offenders?\\u201d

\\n

JF: I get asked that question all the time. And we\\u2019ll talk about it in another podcast. Thank you so much Jack Dempsey Pointer for joining us today. I could not be more grateful for you for sharing with us.

\\n

JDP: You\\u2019re quite welcome. And I hope it goes well.

\\n

JF: You\\u2019ve been listening to Your Best Defense podcast. Join us next week.

"