Federal Register - December 8, 2021
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Source: Federal Register
Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Rules and Regulations
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that the requirement is imposed by SORNA.
2 Defense. A sex offender may have an affirmative defense to liability, as provided in 18 U.S.C. 2250c, if uncontrollable circumstances prevented the sex offender from complying with SORNA, where the sex offender did not contribute to the creation of those circumstances in reckless disregard of the requirement to comply and complied as soon as the circumstances preventing compliance ceased to exist.
Example 1 to paragraph a2. A sex offender changes residence from one jurisdiction to another, bringing into play SORNAs requirement to register in each jurisdiction where the sex offender resides and SORNAs requirement to appear in person and report changes of residence within three business days.
See 34 U.S.C. 20913a, c. The sex offender attempts to comply with these requirements by contacting the local sheriffs office, which is responsible for sex offender registration in the destination jurisdiction. The sheriffs office advises that it cannot schedule an appointment for him to register within three business days but that he should come by in a week. The sex offender would have a defense to liability if he
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appeared at the sheriffs office at the appointed time and registered as required. The sex offenders temporary inability to register and inability to report the change of residence within three business days in the new residence jurisdiction was due to a circumstance beyond his controlthe sheriff offices refusal to meet with him until a week had passedand he complied with the requirement to register as soon as the circumstance preventing compliance ceased to exist.
Example 2 to paragraph a2. A sex offender cannot register in a state in which he resides because its registration authorities will not register offenders on the basis of the offense for which the sex offender was convicted. The sex offender would have a defense to liability because the states unwillingness to register sex offenders like him is a circumstance beyond his control. However, if the sex offender failed to register after becoming aware of a change in state policy or practice allowing his registration, the 18 U.S.C.
2250c defense would no longer apply, because in such a case the circumstance preventing compliance with the registration requirement would no longer exist.
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Example 3 to paragraph a2. A sex offender needs to travel to a foreign country on short noticeless than 21
daysbecause of an unforeseeable family or work emergency. The sex offender would have a defense to liability for failing to report the intended travel 21 days in advance, as required by 72.7f, because it is impossible to report an intention to travel outside the United States before the intention exists. However, if the sex offender failed to inform the registration jurisdiction albeit on short notice once he intended to travel, 18 U.S.C. 2250c would not excuse that failure, because the preventing circumstanceabsence of an intent to travel abroadwould no longer exist.
b Supervision condition. For a sex offender convicted of a Federal offense, compliance with SORNA is a mandatory condition of probation, supervised release, and parole. The release of such an offender who does not comply with SORNA may be revoked.
Dated: November 29, 2021.
Merrick B. Garland, Attorney General.
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