Opportunity for Registry Removal for Sexually Violent Predators

Indiana’s Sex Offender Registry was created in 1994. In 1998, the Indiana legislature created a new designation for certain offenders: the sexually violent predator designation. The designation created harsher reporting requirements and lengthened the registration period from years to life.

Several years after creation of the designation, there were legal challenges to those it applied to “by operation of law.” Many argued it constituted ex post facto (“after the fact”) punishment. Our appellate courts rejected these challenges, basically for one reason: under Indiana law, a registrant may seek removal of the designation (and, consequently, removal of the registration requirement altogether) after a period of 10 years of registration. Essentially, the courts’ rationale was that because removal after 10 years is possible, sexually violent predators (“SVP”s) have not been “punished” any harsher than general registrants.

Unfortunately, many registrants do not know about this opportunity for removal. I hope to provide some general information about the process. Under Indiana Code section 35-38-1-7.5(a), a sexually violent predator is defined as “a person who suffers from a mental abnormality or personality disorder that makes the individual likely to repeatedly commit a sex offense.”

A person is deemed an SVP in one of two ways. The most common way is by operation of law. In other words, if an adult is convicted of a particular sex offense listed in the statute or has two unrelated sex offense convictions, the person is automatically deemed an SVP under Indiana law.

The other way is for the sentencing court to find a person is a sexually violent predator after the prosecutor makes such a request and the court hears from two experts on the matter.

As mentioned above, an SVP has more frequent reporting requirements and is required to register for life. With the exception of registrants with two or more unrelated sex offense convictions, an SVP can seek removal of the designation after he has registered for a period of 10 years.

Indiana Code section 35-38-1-7.5(g) lays out the process. First, the person must register for at least 10 years before seeking removal. After that time period has passed, the registrant may file a petition with the sentencing court, no more than once a year, requesting removal of the SVP designation.

The court is not required to set the petition for a hearing. The court has the discretion to simply dismiss it outright. If the court does not dismiss it, it may conduct a hearing on the petition. If it chooses to conduct a hearing, the court must appoint two psychologists or psychiatrists to evaluate the registrant to determine whether he no longer fits the definition of an SVP.

The court, considering all the evidence presented at the hearing, then has the discretion to grant the registrant’s petition or deny it. The decision can be appealed.

The SVP designation is not the only category of registrants that are required to register for life. Some registrants are lifetime registrants for other reasons and have no opportunity to seek removal of that requirement. There are a lot of SVPs in that group. Even though removal of the designation, for them, may not result in removal of the reporting requirement, removal of the SVP designation itself can still have benefits. General offenders’ reporting requirements are more relaxed, and there are fewer restrictions as well.

I did a search for appellate cases where registrants were denied removal of the designation and appealed the denial. Unfortunately, I did not find any cases that discussed whether a trial court abused its discretion in denying the petition based on the merits of the petition itself (there were cases raising procedural issues, but not substantive ones). Nevertheless, in my experience courts are most likely to grant petitions where registrants have registered for 10 years without any problems, they have not reoffended, and they are firmly established in the community.