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In Re... Volume VIII, Number 2, 2006

The Adam Walsh Child Protection and Safety Act

The Adam Walsh Child Protection and Safety Act (the “Adam Walsh Act”), establishes a nationalized system for the registration of sex offenders. The Act was signed into law in July 2006; as a result, it is too early to perceive the Act’s actual effect on juvenile sex offender registration.

This article serves to provide an overview of how, in recent months, and not yet under the regulations of the Adam Walsh Act, state legislatures have implemented sex offender registration for those adjudicated delinquent in juvenile courts, and how appellate courts have construed those requirements. In so doing, this article aims to demonstrate the protections for juvenile offenders that are stake with the Act’s passage.

I. The Adam Walsh Act

The Adam Walsh Act aims to create a baseline federal standard for sex offender registry requirements, a standard with which all states must come into compliance by July of 2009, or face financial penalty.1 The Act creates a three-tier system for the classification of sex offenders: the tier into which a sex offender is placed determines the length of time for which the offender must register.2 All juveniles 14 years of age and older (at the time of the offense) who are adjudicated delinquent for a state offense that is equivalent to or more severe than the federal offense of aggravated sexual abuse are Tier III offenders.3 As a Tier III offender, such a juvenile must register as a sex offender for life, and must appear in person every three months to verify his or her address and other personal information, and to provide a new photograph.4

The federal statute 18 U.S.C. § 2241 defines aggravated sexual abuse as sexual abuse that is done by force or threat, or any sexual act that is done with a person under the age of 12.5 Therefore, any juvenile 14 years of age and older who is found to have committed or tried or conspired to commit any forcible sexual offense, or any sexual offense against a child or children under 12 years old, will have to register as a Tier III sex offender.6 The Act exempts juveniles who engage in “consensual sexual conduct” from its provisions, “if the victim was at least 13 years old and the offender was not more than 4 years older than the victim.”7

Registered sex offenders who do not comply with the requirements of registration will face a prison term of not less than one year.8 Finally, the Act, per recent case law and a new Federal Register statute, is retroactive.9

II. Juvenile Sex Offender Registration and Procedural Protections Before the Adam Walsh Act

The history of sex offender registration in the United States is relatively recent; as of 1986, only five states had statutory schemes for the registration of sex offenders.10 In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sex Offender Registration Act, which required states to implement laws on sex offender registration.11 In 1996, President Clinton signed Megan’s Law, which amended the Wetterling Act to require states to release relevant information concerning registered sex offenders “when necessary to protect the public.”12 By the end of 1996, every state had statutory provisions for the registration and community notification of sex offenders; at present, however, only 36 states have a sex offender registration scheme that encompasses juveniles who are adjudicated in juvenile court. 13

As state legislatures have set out laws concerning sex offender registration for juveniles, their respective state courts have interpreted the laws to clarify and set the procedural responsibilities of the lower courts. In several cases, the courts have limited the time periods during which the lower courts may consider and require registration. In Iowa, for example, there is a statutory presumption that all juvenile offenders who commit certain enumerated crimes must register as sex offenders unless the juvenile court waives or modifies that requirement.14 The Court of Appeals of Iowa, in In the Interest of C.B.J., ruled that a juvenile court may only waive or modify the requirement to register at the time of the sex offender registration hearing.15 In In re Bryant McAllister,16 the Court of Appeals of Ohio, Fifth Appellate District, examined Ohio Revised Code 2152.83(B)(1), which states that a trial court “may conduct at the time of disposition of the child or, if the court commits the child for the delinquent act to the custody of a secure facility, may conduct at the time of the child’s release from the secure facility, a hearing”17 to determine whether the juvenile must be classified and register as a sex offender. The Court of Appeals interpreted this language to mean that the trial court may only consider registration at the two points of time listed in the statute – at disposition and/or at the time of release from a secure facility – and that once those points have passed, the trial court may no longer consider classification. 18

In addition to delineating the points of time during which lower courts may consider and require registration, the state appellate courts have set out procedures that the lower courts must follow before they may order registration. In In re the Matter of: G.B., the Court of Appeals of Indiana interpreted the Indiana Code’s standard of proof for registration – that a court has to find by clear and convincing evidence that a juvenile will likely commit another offense that would be a sex offense if committed by an adult – to mean not only that an evidentiary hearing must be held before a juvenile may be made to register, but that that hearing may only be held after the juvenile’s release from a secure facility, if he is so placed on disposition.19 Despite the fact that the Code does not make mention of any kind of evidentiary hearing, much less outline when it should be held, the court in G.B. decided that the Code’s stated policy to focus on the rehabilitation of all juveniles in the juvenile justice system necessitated such procedural protections.20 In B.J.B. v. State., the same appellate court further built on the requirement of an evidentiary hearing by stating that the focus of the inquiry at that hearing is whether the juvenile has been rehabilitated by the treatment that he received in the facility from which he was discharged.21 Of course, an appellate court’s delineation of a lower court’s procedural obligations does not always lead to a favorable result for an offender in a particular case. In In re Adam A.,22 the Third Appellate District of the Court of Appeal of California reviewed the case of a juvenile offender who made admissions to charges of forcible oral copulation and incest, and was given a disposition that included probation and that did not require him to register as a sex offender. He violated his probation, was committed to the California Youth Authority, and upon release, was required to register as a sex offender.23 The Court of Appeal found that the lower court did not err in failing to advise the offender at the time that he made his admissions that if he was committed to the California Youth Authority he would have to register upon his release, as the commitment, and the resultant registration requirement, were only collateral consequences of the original admission.24

State appellate courts have also addressed whether the juvenile offender can waive his procedural protections. In State of Indiana v. K.H., the Indiana Court of Appeals held that the juvenile offender cannot waive his request to be removed from the registry (by agreeing to be placed on it during delinquency proceedings) when he has not been informed of the court’s duty to conduct the aforementioned evidentiary hearing.25 In In re David F., on the other hand, the Court of Appeals of California, First Appellate District, held that the juvenile court did not abuse its discretion by failing to give reasons for ordering registration or by failing to state on the record that the offender had committed an offense based on sexual compulsion or gratification.26 The court reasoned that the offender’s failure to object at the time that the court gave its order, coupled with the fact that the offender had twice acknowledged in open court that he might be required to register as a sex offender because of his admissions, is a waiver of the court’s aforementioned requirements. 27

IV. Conclusion

Indeed, state appellate courts have utilized their role as the interpreters of their respective states’ laws to clarify and set the procedural responsibilities of the lower courts with respect to juvenile sex offender registration. In so doing, many such appellate courts have established procedural due process protections for the convicted juvenile offenders in their states. However, under the Adam Walsh Act, juveniles who are adjudicated delinquent for having committed certain crimes will automatically have to register: there will be no opportunity for a hearing or any other kind of review, much less a specified time in which such a review could be held, and there are no circumstances by which the court can waive the registration requirement.

The Act provides that if a state cannot substantially implement the Act’s terms without violating its own constitution, then the state must implement “reasonable alternative procedures or accommodations consistent with the Act.”28 In light of this, many states are convening working groups to determine how to best address the issues that the Act presents.29 It remains to be seen whether and to what extent state legislatures and courts will take action to maintain some of the aforementioned procedural due process protections for convicted juvenile sex offenders.


1 42 U.S.C. §§ 16901-16991 (2006). Under the Act, all states must “substantially implement” the Act’s terms, or they will be subject to a penalty of 10% of the Edward Byrne Memorial Criminal Justice Assistance Grants that they would otherwise receive. 42 U.S.C. § 16925(a). The Attorney General determines whether a state has substantially implemented the Act’s terms. 42 U.S.C. § 16925(a).

2 42 U.S.C. § 16911.

3 42 U.S.C. § 16911; 18 U.S.C. § 2241 (1986).

4 42 U.S.C. § 16913. If a Tier III sex offender maintains a clean record for 25 years, he or she can then be removed from registration. 42 U.S.C. § 16915 (b)(3)(B). Maintaining a clean record is defined as: (A) not being convicted of any offense for which imprisonment for more than 1 year may be imposed; (B) not being convicted of any sex offense; (C) successfully completing any periods of supervised release, probation, and parole; and (D) successfully completing of an appropriate sex offender treatment program certified by a jurisdiction or by the Attorney General. 42 U.S.C. § 16915 (b)(1).

5 18 U.S.C. § 2241.

6 42 U.S.C. § 16911; 18 U.S.C. § 2241.

7 42 U.S.C. § 16911 (5)(C).

8 18 U.S.C. § 2250 (2006).

9 United States v. Manning, No. 06-20055, 2007 U.S. Dist. LEXIS 12932 (W.D. Ark. February 23, 2007); United States v. Templeton, No. CR-06-291-M, 2007, U.S. Dist. LEXIS 8930 (W.D. Okla. February 7, 2007); United States v. Madera, No. 6:06-cr-202-Orl-18KRS, 2007 U.S. Dist. LEXIS 3029 (M.D. Fla. January 16, 2007); 28 C.F.R. § 72.3 (2007).

10 Joanna C. Enstice, Remembering the Victims of Sexual Abuse: The Treatment of Juvenile Sex Offenders in In re J.W., 35 LOY. U. CHI. L.J. 941, 945-946 (2004).

11 42 U.S.C. § 14071 (1994).

12 42 U.S.C. § 14071 (1996).

13 Linda Szymanski, Megan’s Law: Termination of Registration Requirement (2006 Update), NCJJ SNAPSHOT, Vol.11, No. 9.

14 IOWA CODE 692A.2 (1995).

15 In the Interest of C.B.J., No. 5-988/05-0783, 2006 Iowa App. LEXIS 335 at *7 (Iowa Ct. App. April 12, 2006).

16 In re Bryant McAllister, 2006 Ohio 5554 (Ohio Ct. App. 2006).

17 OHIO REV. CODE. ANN. § 2152.83 (B)(1) (2006).

18 In re McAllister, 2006 Ohio 5554 at *P10.

19 In re G.B., 709 N.E.2d 352 (Ind. Ct. App. 1999) (citing former IND. CODE § 5-2-12-4(b)(3), which has been moved and is now IND. CODE § 11-8-8-5(b)(2)(c)).

20 In re G.B., 709 N.E.2d at 354 (citing IND. CODE § 31-10-2-1(5)).

21 B.J.B. v. State, 805 N.E.2d 870, 874-875 (Ind. Ct. App. 2004).,

22 In re Adam A., No. C047945, 2006 Cal. App. Unpub. LEXIS 3871 (Cal. Ct. App. May 4, 2006).

23 In re Adam A., 2006 Cal. App. Unpub. LEXIS 3871, at *10.

24 In re Adam A., 2006 Cal. App. Unpub. LEXIS 3871, at *10.

25 State v. K.H., 860 N.E.2d 1284 (Ind. Ct. App. 2007).

26 In re David F., No. A111174, 2006 Ca. App. Unpub. LEXIS 948, at *9 (Cal. Ct. App. January 31, 2006).

27 In re David F., 2006 Ca. App. Unpub. LEXIS 948, at *10.

28 42 U.S.C. § 16925(b).

29 Telephone Interview by Susan Broderick with Linda Szymanski, Director of Legal Research, National Center for Juvenile Justice (April 10, 2007).

Office of Juvenile Justice and Delinquency Prevention, U.S. Dept. of JusticeThis information is offered for educational purposes only and is not legal advice. This project was supported by Award No. 2002-MU-MU-0003 from the Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice. Points of view or opinions expressed in this document are those of the authors and do not necessarily represent the official position of the United States Department of Justice, the Office of Juvenile Justice and Delinquency Prevention, the National District Attorneys Association, or the American Prosecutors Research Institute.
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