Have You Been Convicted of Possessing Child Pornography?
Is a person convicted of possessing child pornography under MGL ch 76 s. 29C required to register as a sex offender in Massachusetts? You might be surprised, but the answer is no. Two weeks ago, I was facing this issue with a client who had pled guilty to felony child possession in exchange for a promise from the DA not to indict and to agree to a joint recommendation of straight Probation. When I asked the DA if she would agree that my client did not have to register as a sex offender (for up to 20 yrs.), she said “her hands were tied…because the statute requires it.” Being extremely experienced with defending child pornography cases in both state and federal court, I knew this wasn’t so. This is because under MGL ch 6 s. 178 (f) when considering
“…a sex offender who has been convicted of a sex offense, …who has not been sentenced to immediate confinement, the court shall…determine whether the circumstances of the offense in conjunction with the offender’s criminal history indicate that the offender does not pose a risk of re-offense or a danger to the public. If the court so determines, the court shall relieve such sex offender [of the obligation to register] …”
No discretion is allowed. However, the DA (an experienced one herself) kept insisting that follow-on language specifically excluding persons “…convicted of a sex offense involving a child…” meant anyone convicted of possessing child pornography was ineligible for such relief. I kept countering that this simply isn’t true, that the cited language does not refer to possessing child pornography under 29C and my vast experience with these cases has shown most judges agree.
The DA wouldn’t budge. Luckily, the judge was willing to take time to consult the statute where she found under MGL ch 6 s. 178C that a “sex offense involving a child” does not include possession of child pornography. As a result, a hearing must be held to determine whether or not anyone convicted under that statute is a risk to reoffend or presents a danger before sex offender registration can be required. Because I knew this, I was prepared for, and anticipated the judge’s decision to hold a hearing and was immediately ready to present testimony from a reputable forensic psychologist who had evaluated my client---a defense attorney must for most alleged sex crime cases---establishing my client was a low risk (the minimal standard) to reoffend and no danger to anyone.
At the conclusion of our contested hearing, the judge agreed with our expert and my client was not required to register. In short, he was able to avoid what I consider to be the superfluous, often unnecessary, and disproportionately punitive “Scarlet Letter” of 20 yrs. sex offender registration, as an adjunct to his felony conviction.
Contact our Boston Sex Crimes Attorney at (617) 500-0252
My client was fortunate I had the experience and know-how to challenge the DA’s confident assertion that sex offender registration was required. This is why it is critical that anyone charged with any variant of sex offense(s) needs to be sure their attorney has the requisite skill, knowledge, and experience to ensure he/she gets the due process and full measure of justice to which he/she is entitled. Make no mistake, the system is stacked against the accused in every such circumstance. Having the right Boston sex crimes attorney, with the correct experience, is the best/only way to alter the imbalance and level a slanted playing field.