Attorney Marcus Berghahn
Wisconsin law provides that an individual who has been convicted of a “sex offense” must register as a sex offender. A qualifying “sex offense” is defined in Wis. Stat. § 301.45(1d)(b). Unless the individual was convicted of the most serious offenses or was found to be a sexually violent person, the registration requirement usually ended 15 years after the sentence was deemed served. Thus, whether an individual was placed on probation or was sentenced to prison, the individual had to register as a sex offender for at least 15 years after the sentence was completed.
In some cases the statutes provide that the individual had to register as a sex offender for the individual’s lifetime. There are five statutes to which that section applies (think first and second degree sexual assault (under Ch. 940 and 948) and repeated sexual assault of a child). Wis. Stat. § 301.45(5)(b)(1m).
But there’s another section that makes registration stick for lifetime, when “The person has, on 2 or more separate occasions, been convicted … for a sex offense …” Wis. Stat. § 301.45(5)(b)(1). In the past, this phrase has been interpreted to mean that the individual had been convicted in two or more cases, or in relation to two or more convictions occurring on different dates.
In 2017, then Attorney General Brad Schimel directed Department of Corrections to read this section differently. The Attorney General directed DOC to read “on 2 or more separate occasions” to mean convicted of two or more offenses—even if the offenses occurred on the same date or occurred out of the same course of conduct. Indeed, it’s common that someone who is charged with a crime will be charged (and is often convicted) with multiple offenses arising out of the same course of conduct.
Based on the new reading, for example, a conviction for two counts of possession of child pornography arising out of the same criminal complaint is now subject to lifetime sex offender registration—not 15 years, as it had been. So long as the individual has been convicted of two offenses that are subject to the registration requirement under Wis. Stat. § 301.45, the length of the registration requirement will be the individual’s lifetime. Practically, in most cases, this will result in an individual who has to register as a sex offender, to be so classified, as the statute provides “until his or her death.” Wis. Stat. § 301.45(5)(am)(1). The new reading affects those who are subject to the registration requirement and those who will be subject to the requirement, and probably even those individuals who have fulfilled their requirements (i.e., who were no longer required to register as a sex offender).
The Attorney General’s interpretation was sent to DOC in September 2017. But it has taken DOC some time to notify those who register as sex offenders that the length of time that they are required to register has changed. The notice is being mailed by certified mail.