Office of the Attorney General; The National Guidelines for Sex Offender Registration and Notification, 30210-30234 [E7-10210]

Agencies

• Department of Justice

[Federal Register Volume 72, Number 103 (Wednesday, May 30, 2007)]
[Notices]
[Pages 30210-30234]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-10210]



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Part IV





Department of Justice





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The National Guidelines for Sex Offender Registration and Notification; 
Notice

Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / 
Notices

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DEPARTMENT OF JUSTICE

[Docket No. OAG 121; A.G. Order No. 2880-2007].
RIN 1105-AB28


 Office of the Attorney General; The National Guidelines for Sex 
Offender Registration and Notification

AGENCY: Department of Justice.

ACTION: Notice; Proposed guidelines.

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SUMMARY: The United States Department of Justice is publishing Proposed 
Guidelines to interpret and implement the Sex Offender Registration and 
Notification Act.

DATES: Comments must be received by August 1, 2007.

ADDRESSES: Comments may be mailed to Laura L. Rogers, Director, SMART 
Office, Office of Justice Programs, United States Department of 
Justice, 810 7th Street NW., Washington, DC 20531. To ensure proper 
handling, please reference OAG Docket No. 121 on your correspondence. 
You may view an electronic version of these proposed guidelines at 
https://www.ojp.gov/smart or https://www.regulations.gov. You may also 
comment via the Internet to the Office of Sex Offender Sentencing, 
Monitoring, Apprehending, Registering, and Tracking (SMART Office) of 
the Justice Department's Office of Justice Programs at 
getsmart@usdoj.gov. Electronically submitted comments must include 
Docket No. OAG 121 in the subject box.

FOR FURTHER INFORMATION CONTACT: Laura L. Rogers, Director, SMART 
Office, Office of Justice Programs, United States Department of 
Justice, Washington, DC 202-514-4689.

SUPPLEMENTARY INFORMATION: Since the enactment of the Jacob Wetterling 
Crimes Against Children and Sexually Violent Offender Registration Act 
(42 U.S.C. 14071) in 1994, there have been national standards for sex 
offender registration and notification in the United States. All states 
currently have sex offender registration and notification programs and 
have endeavored to implement the Wetterling Act standards in their 
existing programs.
    Title I of the Adam Walsh Child Protection and Safety Act of 2006 
(Pub. L. 109-248), the Sex Offender Registration and Notification Act 
(SORNA), contains a comprehensive revision of the national standards 
for sex offender registration and notification. The SORNA reforms are 
generally designed to strengthen and increase the effectiveness of sex 
offender registration and notification for the protection of the 
public, and to eliminate potential gaps and loopholes under the pre-
existing standards by means of which sex offenders could attempt to 
evade registration requirements or the consequences of registration 
violations.
    These proposed guidelines carry out a statutory directive to the 
Attorney General in section 112(b) of SORNA (42 U.S.C. 16912(b)) to 
issue guidelines to interpret and implement SORNA. They provide 
guidance and assistance to the states and other jurisdictions in 
incorporating the SORNA requirements into their sex offender 
registration and notification programs. Matters addressed in the 
guidelines include general principles for SORNA implementation; the 
jurisdictions responsible for implementing the SORNA standards in their 
programs; the sex offenders required to register under SORNA and the 
registration and notification requirements they are subject to based on 
the nature of their offenses and the extent of their recidivism; the 
information to be included in the sex offender registries and the 
disclosure and sharing of such information; the jurisdictions in which 
sex offenders are required to register; the procedures for initially 
registering sex offenders and for keeping the registration current and 
the registration information up to date; the duration of registration; 
and the means of enforcing registration requirements.
Proposed National Guidelines for Sex Offender Registration and 
Notification

Contents

I. Introduction
II. General Principles
    A. Terminology
    B. Minimum National Standards
    C. Retroactivity
    D. Automation--Electronic Databases and Software
    E. Implementation
III. Covered Jurisdictions
IV. Covered Sex Offenses and Sex Offenders
    A. Convictions Generally
    B. Foreign Convictions
    C. Sex Offenses Generally
    D. Specified Offenses Against Minors
    E. Protected Witnesses
V. Classes of Sex Offenders
VI. Required Registration Information
VII. Disclosure and Sharing of Information
    A. Sex Offender Web Sites
    B. Community Notification and Targeted Disclosures
VIII. Where Registration Is Required
IX. Initial Registration
X. Keeping the Registration Current
    A. Changes of Name, Residence, Employment, or School Attendance
    B. Changes in Other Registration Information
    C. International Travel
XI. Verification/Appearance Requirements
XII. Duration of Registration
XIII. Enforcement of Registration Requirements

I. Introduction

    The Sex Offender Registration and Notification Act (``SORNA'' or 
``the Act''), which is title I of the Adam Walsh Child Protection and 
Safety Act of 2006 (Pub. L. 109-248), provides a new comprehensive set 
of minimum standards for sex offender registration and notification in 
the United States. These guidelines are issued to provide guidance and 
assistance to covered jurisdictions--the 50 States, the District of 
Columbia, the principal U.S. territories, and Indian tribal 
governments--in implementing the SORNA standards in their registration 
and notification programs.
    The adoption of these guidelines carries out a statutory directive 
to the Attorney General, appearing in SORNA section 112(b), to issue 
guidelines to interpret and implement SORNA. Other provisions of SORNA 
establish the Office of Sex Offender Sentencing, Monitoring, 
Apprehending, Registering, and Tracking (the ``SMART Office''), a 
component of the Office of Justice Programs of the U.S. Department of 
Justice. The SMART Office is authorized by law to administer the 
standards for sex offender registration and notification that are set 
forth in SORNA and interpreted and implemented in these guidelines. It 
is further authorized to cooperate with and provide assistance to 
States, local governments, tribal governments, and other public and 
private entities in relation to sex offender registration and 
notification and other measures for the protection of the public from 
sexual abuse or exploitation. See SORNA section 146(c). Accordingly, 
the SMART Office should be regarded by jurisdictions discharging 
registration and notification functions as their key partner and 
resource in the federal government in further developing and 
strengthening their sex offender registration and notification 
programs, and the SMART Office will provide all possible assistance for 
this purpose.
    The development of sex offender registration and notification 
programs in the United States has proceeded rapidly since the early 
1990s, and at the present time such programs exist in all of the 
States, the District of Columbia, and some of the territories and 
tribes. These programs serve a number of important public safety 
purposes. In their most basic character, the registration aspects of 
these programs are systems for

[[Page 30211]]

tracking sex offenders following their release into the community. If a 
sexually violent crime occurs or a child is molested, information 
available to law enforcement through the registration program about sex 
offenders who may have been present in the area may help to identify 
the perpetrator and solve the crime. If a particular released sex 
offender is implicated in such a crime, knowledge of the sex offender's 
whereabouts through the registration system may help law enforcement in 
making a prompt apprehension. The registration program may also have 
salutary effects in relation to the likelihood of registrants 
committing more sex offenses. Registered sex offenders will perceive 
that the authorities' knowledge of their identities, locations, and 
past offenses reduces the chances that they can avoid detection and 
apprehension if they reoffend, and this perception may help to 
discourage them from doing so.
    Registration also provides the informational base for the other key 
aspect of the programs--notification--which involves making information 
about released sex offenders more broadly available to the public. The 
means of public notification currently include sex offender Web sites 
in all States, the District of Columbia, and some territories, and may 
involve other forms of notice as well. The availability of such 
information helps members of the public to take common sense measures 
for the protection of themselves and their families, such as declining 
the offer of a convicted child molester to watch their children or head 
a youth group, or reporting to the authorities approaches to children 
or other suspicious activities by such a sex offender. Here as well, 
the effect is salutary in relation to the sex offenders themselves, 
since knowledge by those around them of their sex offense histories 
reduces the likelihood that they will be presented with opportunities 
to reoffend.
    While sex offender registration and notification in the United 
States are generally carried out through programs operated by the 
individual States and other non-federal jurisdictions, their 
effectiveness depends on also having effective arrangements for 
tracking of registrants as they move among jurisdictions and some 
national baseline of registration and notification standards. In a 
federal union like the United States with a mobile population, sex 
offender registration could not be effective if registered sex 
offenders could simply disappear from the purview of the registration 
authorities by moving from one jurisdiction to another, or if 
registration and notification requirements could be evaded by moving 
from a jurisdiction with an effective program to a nearby jurisdiction 
that required little or nothing in terms of registration and 
notification.
    Hence, there have been national standards for sex offender 
registration in the United States since the enactment of the Jacob 
Wetterling Crimes Against Children and Sexually Violent Offender Act 
(42 U.S.C. 14071) in 1994. The national standards from their inception 
have addressed such matters as the offenses for which registration 
should be required, updating and periodic verification of registration 
information, the duration of registration, public notification, and 
continued registration and tracking of sex offenders when they relocate 
from one jurisdiction to another.
    Following the enactment of the Wetterling Act in 1994, that Act was 
amended a number of times, in part reflecting and in part promoting 
trends in the development of the State registration and notification 
programs. Ultimately, Congress concluded that the patchwork of 
standards that had resulted from piecemeal amendments should be 
replaced with a comprehensive new set of standards--the SORNA reforms, 
whose implementation these Guidelines concern--that would close 
potential gaps and loopholes under the old law, and generally 
strengthen the nationwide network of sex offender registration and 
notification programs. Important areas of reform under the SORNA 
standards include:
     Extending the jurisdictions in which registration is 
required beyond the 50 States, the District of Columbia, and the 
principal U.S. territories, to include Indian tribal jurisdictions.
     Extending the classes of sex offenders and sex offenses 
for which registration is required.
     Consistently requiring that sex offenders in the covered 
classes register and keep the registration current in the jurisdictions 
in which they reside, work, or go to school.
     Requiring more extensive registration information.
     Adding to the national standards periodic in-person 
appearances by registrants to verify and update the registration 
information.
     Broadening the availability of information concerning 
registered sex offenders to the public, through posting on sex offender 
Web sites and by other means.
     Adopting reforms affecting the required duration of 
registration.
    In addition, SORNA strengthens the federal superstructure elements 
that leverage and support the sex offender registration and 
notification programs of the registration jurisdictions. These 
strengthened elements are: (i) Stepped-up federal investigation and 
prosecution efforts to assist jurisdictions in enforcing sex offender 
registration requirements; (ii) new statutory provisions for the 
national database and national Web site (i.e., the National Sex 
Offender Registry and the Dru Sjodin National Sex Offender Public Web 
site) that effectively compile information obtained under the 
registration programs of the States and other jurisdictions and make it 
readily available to law enforcement or the public on a nationwide 
basis; (iii) development by the federal government of software tools, 
which the States and other registration jurisdictions will be able to 
use to facilitate the operation of their registration and notification 
programs in conformity with the SORNA standards; and (iv) establishment 
of the SMART Office to administer the national standards for sex 
offender registration and notification and to assist registration 
jurisdictions in their implementation.
    Through the cooperative effort of the 50 States, the District of 
Columbia, the U.S. territories, and Indian tribal governments with the 
responsible federal agencies, the SORNA goal of an effective and 
comprehensive national system of registration and notification programs 
can be realized, with great benefit to the ultimate objective of 
``protect[ing] the public from sex offenders and offenders against 
children.'' SORNA section102. These Guidelines provide the blueprint 
for that effort.
Alberto R. Gonzales, Attorney General

II. General Principles

    Before turning to the specific SORNA standards and requirements 
discussed in the remainder of these Guidelines, certain general points 
should be noted concerning the interpretation and application of the 
Act and these Guidelines:

A. Terminology

    These Guidelines use key terms with the meanings defined in SORNA. 
In particular, the term ``jurisdiction'' is consistently used with the 
meaning set forth in SORNA section 111(10). As defined in that 
provision, it refers to the 50 States, the District of Columbia, the 
five principal U.S. territories--i.e., the Commonwealth of Puerto Rico, 
Guam, American Samoa, the Northern Mariana

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Islands, and the United States Virgin Islands--and Indian tribes that 
elect to function as registration jurisdictions under SORNA section 
127. (For more concerning covered jurisdictions, see Part III of these 
Guidelines.) Thus, when these Guidelines refer to ``jurisdictions'' 
implementing the SORNA registration and notification requirements, the 
reference is to implementation of these requirements by the 
jurisdictions specified in SORNA section 111(10). Likewise, the term 
``sex offense'' is not used to refer to any and all crimes of a sexual 
nature, but rather to those covered by the definition of ``sex 
offense'' appearing in SORNA section 111(5), and the term ``sex 
offender'' has the meaning stated in SORNA section 111(1). (For more 
concerning covered sex offenses and offenders, see Part IV of these 
Guidelines.)
    SORNA itself includes a number of references relating to 
implementation by jurisdictions of the requirements of ``this title.'' 
Section 125 provides a mandatory 10% reduction in certain federal 
justice assistance funding for jurisdictions that fail, as determined 
by the Attorney General, to substantially implement ``this title'' 
within the time frame specified in section 124, and section 126 
authorizes a Sex Offender Management Assistance grant program to help 
offset the costs of implementing ``this title.'' In the context of 
these provisions, the references to ``this title'' function as a 
shorthand for the SORNA sex offender registration and notification 
standards. They do not mean that funding under these provisions is 
affected by a jurisdiction's implementation or non-implementation of 
reforms unrelated to sex offender registration and notification that 
appear in later portions of title I of the Adam Walsh Act Child 
Protection and Safety Act of 2006 (particularly, subtitle C of that 
title).
    Section 125(d) of SORNA states that the provisions of SORNA ``that 
are cast as directions to jurisdictions or their officials constitute, 
in relation to States, only conditions required to avoid the reduction 
of Federal funding under this section.'' Statements in these Guidelines 
that SORNA requires jurisdictions to adopt certain measures should be 
understood accordingly in their application to the States. Since the 
SORNA requirements relating to sex offender registration and 
notification are, in relation to the States, only partial funding 
eligibility conditions, creation of these requirements is within the 
constitutional authority of the federal government.

B. Minimum National Standards

    SORNA establishes a national baseline for sex offender registration 
and notification programs. In other words, the Act generally 
constitutes a set of minimum national standards and sets a floor, not a 
ceiling, for jurisdictions' programs. Hence, for example, a 
jurisdiction may have a system that requires registration by broader 
classes of convicted sex offenders than those identified in SORNA, or 
that requires, in addition, registration by certain classes of non-
convicts (such as persons acquitted on the ground of insanity of 
sexually violent crimes or child molestation offenses, or persons 
released following civil commitment as sexually dangerous persons). A 
jurisdiction may require verification of the registered address or 
other registration information by sex offenders with greater frequency 
than SORNA requires, or by other means in addition to those required by 
SORNA (e.g., through the use of mailed address verification forms, in 
addition to in-person appearances). A jurisdiction may require sex 
offenders to register for longer periods than those required by the 
SORNA standards. A jurisdiction may require that changes in 
registration information be reported by registrants on a more stringent 
basis than the SORNA minimum standards--e.g., requiring that changes of 
residence be reported before the sex offender moves, rather than within 
three business days following the move. A jurisdiction may extend Web 
site posting to broader classes of registrants than SORNA requires and 
may post more information concerning registrants than SORNA and these 
Guidelines require.
    Such measures, which encompass the SORNA baseline of sex offender 
registration and notification requirements but go beyond them, 
generally have no negative implication concerning jurisdictions' 
implementation of or compliance with SORNA. This is so because the 
general purpose of SORNA is to protect the public from sex offenders 
and offenders against children through effective sex offender 
registration and notification, and it is not intended to preclude or 
limit jurisdictions' discretion to adopt more extensive or additional 
registration and notification requirements to that end. There are 
exceptions to this general rule, however. For example, SORNA section 
118(b) requires that certain limited types of information, such as 
victim identity and registrants' Social Security numbers, be excluded 
from jurisdictions' publicly accessible sex offender Web sites, as 
discussed in Part VII of these Guidelines. In most other respects, 
jurisdictions' discretion to go further than the SORNA minimum is not 
limited.

C. Retroactivity

    The applicability of the SORNA requirements is not limited to sex 
offenders whose predicate sex offense convictions occur following a 
jurisdiction's implementation of a conforming registration program. 
Rather, SORNA's requirements apply to all sex offenders, including 
those whose convictions predate the enactment of the Act. The Attorney 
General has so provided in 28 CFR part 72, pursuant to the authority 
under SORNA section 113(d) to ``specify the applicability of the 
requirements of [SORNA] to sex offenders convicted before the enactment 
of this Act or its implementation in a particular jurisdiction.'' As 
noted in the rulemaking document for the cited regulations, the 
application of the SORNA standards to sex offenders whose convictions 
predate SORNA creates no ex post facto problem ``because the SORNA sex 
offender registration and notification requirements are intended to be 
non-punitive, regulatory measures adopted for public safety purposes, 
and hence may validly be applied (and enforced by criminal sanctions) 
against sex offenders whose predicate convictions occurred prior to the 
creation of these requirements. See Smith v. Doe, 538 U.S. 84 (2003).'' 
72 FR 8894, 8896 (Feb. 28, 2007).
    As a practical matter, jurisdictions may not be able to identify 
all sex offenders who fall within the SORNA registration categories, 
where the predicate convictions predate the enactment of SORNA or the 
jurisdiction's implementation of the SORNA standards in its 
registration program, particularly where such sex offenders have left 
the justice system and merged into the general population long ago. But 
many sex offenders with such convictions will remain in (or reenter) 
the system because:

     They are incarcerated or under supervision, either for the 
predicate sex offense or for some other crime;
     They are already registered or subject to a pre-existing 
sex offender registration requirement under the jurisdiction's law; or
     They hereafter reenter the jurisdiction's justice system 
because of conviction for some other crime (whether or not a sex 
offense).

Sex offenders in these three classes are within the cognizance of the

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jurisdiction, and the jurisdiction will often have independent reasons 
to review their criminal histories for penal, correctional, or 
registration/notification purposes. Accordingly, a jurisdiction will be 
deemed to have substantially implemented the SORNA standards with 
respect to sex offenders whose predicate convictions predate the 
enactment of SORNA or the implementation of SORNA in the jurisdiction's 
program if it registers these sex offenders, when they fall within any 
of the three classes described above, in conformity with the SORNA 
standards. (For more about the registration of sex offenders in these 
classes, see the discussion under ``retroactive classes'' in Part IX of 
these Guidelines.)
    The required retroactive application of the SORNA requirements will 
also be limited in some cases by the limits on the required duration of 
registration. As discussed in Part XII of these Guidelines, SORNA 
requires minimum registration periods of varying length for sex 
offenders in different categories, defined by criteria relating to the 
nature of their sex offenses and their history of recidivism. This 
means that a sex offender with a pre-SORNA conviction may have been in 
the community for a greater amount of time than the registration period 
required by SORNA. For example, SORNA section 115 requires registration 
for 25 years for a sex offender whose offense satisfies the ``tier II'' 
criteria of section 111(3). A sex offender who was released from 
imprisonment for such an offense in 1980 is already more than 25 years 
out from the time of release. In such cases, a jurisdiction may credit 
the sex offender with the time elapsed from his or her release (or the 
time elapsed from sentencing, in case of a non-incarcerative sentence), 
and does not have to require the sex offender to register on the basis 
of the conviction, even if the criteria for retroactive application of 
the SORNA standards under this Part are otherwise satisfied.
    As with other requirements under SORNA and these Guidelines, the 
foregoing discussion identifies only the minimum required for SORNA 
compliance. Jurisdictions are free to require registration for broader 
classes of sex offenders with convictions that predate SORNA or the 
jurisdiction's implementation of the SORNA standards in its program.

D. Automation--Electronic Databases and Software

    Several features of SORNA contemplate, or will require as a 
practical matter, the use of current electronic and cyber technology to 
track seamlessly sex offenders who move from one jurisdiction to 
another, ensure that information concerning registrants is immediately 
made available to all interested jurisdictions, and make information 
concerning sex offenders immediately available to the public as 
appropriate. These include provisions for immediate information sharing 
among jurisdictions under SORNA section 113(c); a requirement in 
section 119(b) that the Attorney General ensure ``that updated 
information about a sex offender is immediately transmitted by 
electronic forwarding to all relevant jurisdictions''; and requirements 
in section 121(b) that sex offender registration information and 
updates thereto be provided immediately to various public and private 
entities and individuals. (For more about these information sharing 
requirements and associated time frames, see Parts VII.B and X of these 
Guidelines.)
    Carrying out the SORNA information sharing requirements accordingly 
will entail maintenance by jurisdictions of their registries in the 
form of electronic databases, whose included information can be 
electronically transmitted to other jurisdictions and entities. This 
point is further discussed in connection with the specific SORNA 
standards, particularly in Parts VI, VII, and X of these Guidelines.
    Section 123 of SORNA directs the Attorney General, in consultation 
with the jurisdictions, to develop and support registry management and 
Web site software. The purposes of the software include facilitating 
the immediate exchange of sex offender information among jurisdictions, 
public access through the Internet to sex offender information and 
other forms of community notification, and compliance in other respects 
with the SORNA requirements. As required by section 123, the Department 
of Justice will develop and make available to the jurisdictions 
software tools for the operation of their sex offender registration and 
notification programs, which will, as far as possible, be designed to 
automate these processes and enable the jurisdictions to implement 
SORNA's requirements by utilizing the software.

E. Implementation

    Section 124 of SORNA sets a general time frame of three years for 
implementation, running from the date of enactment of SORNA, i.e., from 
July 27, 2006. The Attorney General is authorized to provide up to two 
one-year extensions of this deadline. Failure to comply within the 
applicable time frame would result in a 10% reduction of Federal 
justice assistance funding under 42 U.S.C. 3750 et seq. (``Byrne 
Justice Assistance Grant'' funding). See SORNA section 125(a). Funding 
withheld from jurisdictions because of noncompliance would be 
reallocated to other jurisdictions that are in compliance, or could be 
reallocated to the noncompliant jurisdiction to be used solely for the 
purpose of SORNA implementation.
    While SORNA sets minimum standards for jurisdictions' registration 
and notification programs, it does not require that its standards be 
implemented by statute. Hence, in assessing compliance with SORNA, the 
totality of a jurisdiction's rules governing the operation of its 
registration and notification program will be considered, including 
administrative policies and procedures as well as statutes.
    The SMART Office will be responsible for determining whether a 
jurisdiction has substantially implemented the SORNA requirements. The 
affected jurisdictions are encouraged to submit information to the 
SMART Office concerning existing and proposed sex offender registration 
and notification provisions with as much lead time as possible, so the 
SMART Office can assess the adequacy of existing or proposed measures 
to implement the SORNA requirements and work with the submitting 
jurisdictions to overcome any shortfalls or problems. At the latest, 
submissions establishing compliance with the SORNA requirements should 
be made to the SMART Office at least three months before the deadline 
date of July 27, 2009--i.e., by April 27, 2009--so that the matter can 
be determined before the Byrne Grant funding reduction required by 
SORNA section 125 for noncompliant jurisdictions takes effect. If it is 
anticipated that a submitting jurisdiction may need an extension of 
time as described in SORNA section 124(b), the submission to the SMART 
Office--which should be made by April 27, 2009, as noted--should 
include a description of the jurisdiction's implementation efforts and 
an explanation why an extension is needed.
    SORNA section 125 refers to ``substantial'' implementation of 
SORNA. The standard of ``substantial implementation'' is satisfied with 
respect to an element of the SORNA requirements if a jurisdiction 
carries out the requirements of SORNA as interpreted and explained in 
these Guidelines. Hence, the standard is satisfied if a jurisdiction 
implements

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measures that these Guidelines identify as sufficient to implement (or 
``substantially'' implement) the SORNA requirements.
    The ``substantial'' compliance standard also contemplates that 
there is some latitude to approve a jurisdiction's implementation 
efforts, even if they do not exactly follow in all respects the 
specifications of SORNA or these Guidelines. For example, section 116 
of SORNA requires periodic in-person appearances by sex offenders to 
verify their registration information. In some cases this will be 
impossible, such as the case of a sex offender who is hospitalized and 
unconscious as a result of an injury at the time of a scheduled 
appearance. In other cases, the appearance may not be literally 
impossible, but there may be reasons to allow some relaxation of the 
requirement. For example, a sex offender may unexpectedly need to deal 
with a family emergency at the time of a scheduled appearance, where 
failure to make the appearance will mean not verifying the registration 
information within the exact time frame specified by SORNA section 116. 
A jurisdiction may wish to authorize rescheduling of the appearance in 
such cases. Doing so would not necessarily undermine substantially the 
objectives of the SORNA verification requirements, so long as the 
jurisdiction's rules or procedures require that the sex offender notify 
the official responsible for monitoring the sex offender of the 
difficulty, and that the appearance promptly be carried out once the 
interfering circumstance is resolved.
    In general, the SMART Office will consider on a case-by-case basis 
whether jurisdictions' rules or procedures that do not exactly follow 
the provisions of SORNA or these Guidelines ``substantially'' implement 
SORNA, assessing whether the departure from a SORNA requirement will or 
will not substantially disserve the objectives of the requirement. If a 
jurisdiction is relying on the authorization to approve measures that 
``substantially'' implement SORNA as the basis for an element or 
elements in its system that depart in some respect from the exact 
requirements of SORNA or these Guidelines, the jurisdiction's 
submission to the SMART Office should identify these elements and 
explain why the departure from the SORNA requirements should not be 
considered a failure to substantially implement SORNA.
    Beyond the general standard of substantial implementation, SORNA 
section 125(b) includes special provisions for cases in which the 
highest court of a jurisdiction has held that the jurisdiction's 
constitution is in some respect in conflict with the SORNA 
requirements. If a jurisdiction believes that it faces such a 
situation, it should inform the SMART Office. The SMART Office will 
then work with the jurisdiction to see whether the problem can be 
overcome, as the statute provides. If it is not possible to overcome 
the problem, then the SMART Office may approve the jurisdiction's 
adoption of reasonable alternative measures that are consistent with 
the purposes of SORNA.
    Section 125 of SORNA, as discussed above, provides for a funding 
reduction for jurisdictions that do not substantially implement SORNA 
within the applicable time frame. Section 126 of SORNA authorizes 
positive funding assistance--the Sex Offender Management Assistance 
(``SOMA'') grant program--to all registration jurisdictions to help 
offset the costs of SORNA implementation, with enhanced payments 
authorized for jurisdictions that effect such implementation within one 
or two years of SORNA's enactment. Congress has not appropriated 
funding for the SOMA program at the time of the issuance of these 
Guidelines. If funding for this program is forthcoming in the future, 
additional guidance will be provided concerning application for grants 
under the program.

III. Covered Jurisdictions

    Section 112(a) of SORNA states that ``[e]ach jurisdiction shall 
maintain a jurisdiction-wide sex offender registry conforming to the 
requirements of this title,'' and section 124 provides specific 
deadlines for ``jurisdictions'' to carry out the SORNA implementation. 
Related definitions appear in section 111(9) and (10). Section 111(9) 
provides that ``sex offender registry'' means a registry of sex 
offenders and a notification program.
    Section 111(10) provides that ``jurisdiction'' refers to:

     The 50 States;
     The District of Columbia;
     The five principal U.S. territories--the Commonwealth of 
Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, and 
the United States Virgin Islands; and
     Indian tribes to the extent provided in section 127.

    Some of the provisions in SORNA are formulated as directions to sex 
offenders, including those appearing in sections 113(a)-(b), 113(c) 
(first sentence), 114(a), 115(a), and 116. Other SORNA provisions are 
cast as directions to jurisdictions or their officials, such as those 
appearing in sections 113(c) (second sentence), 113(e), 114(b), 117(a), 
118, 121(b), and 122. To meet the requirement under sections 112 and 
124 that covered jurisdictions must implement SORNA in their 
registration and notification programs, each jurisdiction must 
incorporate in the laws and rules governing its registration and 
notification program the requirements that SORNA imposes on sex 
offenders, as well as those that are addressed directly to 
jurisdictions and their officials.
    While the ``jurisdictions'' assigned sex offender registration and 
notification responsibilities by SORNA are the 50 States, the District 
of Columbia, the principal territories, and Indian tribes (to the 
extent provided in section 127), as described above, this does not 
limit the ability of these jurisdictions to carry out these functions 
through their political subdivisions. For example, a jurisdiction may 
assign responsibility for initially registering sex offenders upon 
their release from imprisonment to correctional personnel who are 
employees of the jurisdiction's government, but the responsibility for 
continued tracking and registration of sex offenders thereafter may be 
assigned to personnel of local police departments, sheriffs' offices, 
or supervision agencies who are municipal employees. Moreover, in 
carrying out their registration and notification functions, 
jurisdictions are free to utilize (and to allow their agencies and 
political subdivisions to utilize) entities and individuals who may not 
be governmental agencies or employees in a narrow sense, such as 
contractors, volunteers, and community-based organizations that are 
capable of discharging these functions. SORNA does not limit 
jurisdictions' discretion concerning such matters. Rather, so long as a 
jurisdiction's laws and rules provide consistently for the discharge of 
the required registration and notification functions by some 
responsible individuals or entities, the specifics concerning such 
assignments of responsibility are matters within the jurisdiction's 
discretion. References in these Guidelines should be understood 
accordingly, so that (for example) a reference to an ``official'' 
carrying out a registration function does not mean that the function 
must be carried out by a government employee, but rather is simply a 
way of referring to whatever individual is assigned responsibility for 
the function.
    With respect to Indian tribes, SORNA recognizes that tribes may 
vary in their capacities and preferences regarding the discharge of sex 
offender registration

[[Page 30215]]

and notification functions, and accordingly section 127 of SORNA has 
special provisions governing the treatment of Indian tribes as 
registration jurisdictions or the delegation of registration and 
notification functions to the States. Specifically, section 127(a)(1) 
generally affords federally recognized Indian tribes a choice between 
electing to carry out the sex offender registration and notification 
functions specified in SORNA in relation to sex offenders subject to 
its jurisdiction, or delegating those functions to a State or States 
within which the tribe is located. (Delegation to the State or States 
is automatic for a tribe subject to state law enforcement jurisdiction 
under 18 U.S.C. 1162, however--see the discussion of section 127(a)(2) 
below.) The choice by a tribe whether to become a SORNA registration 
jurisdiction or to delegate registration and notification functions to 
a State or States must be made within one year of SORNA's enactment on 
July 27, 2006.
    If a tribe elects to become a SORNA registration jurisdiction, its 
functions and responsibilities regarding sex offender registration and 
notification are the same as those of a State. Duplication of 
registration and notification functions by tribes and States is not 
required, however, and such tribes may enter into cooperative 
agreements with the States for the discharge of these functions, as 
discussed below in connection with section 127(b). If a tribe elects to 
delegate to a State, then the State is fully responsible for carrying 
out the SORNA registration and notification functions, and the 
delegation includes an undertaking by the tribe to ``provide access to 
its territory and such other cooperation and assistance as may be 
needed to enable [the State] to carry out and enforce the requirements 
of [SORNA].'' SORNA section 127(a)(1)(B).
    The election to become a SORNA registration jurisdiction, or to 
delegate to a State or States, must be made by resolution or other 
enactment of the tribal council or comparable governmental body. Hence, 
the decision must be made by a tribal governmental entity--''the tribal 
council or comparable governmental body''--that has the legal authority 
to make binding legislative decisions for the tribe. The tribal 
government should promptly notify the SMART Office of its decision and 
forward the text of the resolution or other enactment to the SMART 
Office by a reliable means of transmission--preferably by the decision 
deadline of July 27, 2007, or if that is not feasible, as soon 
thereafter as possible.
    To satisfy the requirements of SORNA section 127(a)(1), the 
resolution or enactment must be adopted on or prior to July 27, 2007, 
and must state a decision by the tribal council (or comparable 
governmental body) to do one of the following:
     Carry out the SORNA requirements relating to sex offender 
registration and notification as a jurisdiction subject to those 
requirements; or
     Delegate the tribe's functions relating to sex offender 
registration and notification under SORNA to the State or States within 
which the territory of the tribe is located and provide access to its 
territory and such other cooperation and assistance as may be needed to 
enable the State or States to carry out and enforce the SORNA 
requirements.

Additional suggested elements for inclusion in the tribal resolution 
(or other enactment) include the following:

     Authorization of an appropriate tribal official or 
officials to negotiate or enter into cooperative agreements with state 
or local governments, if the tribe elects to become a SORNA 
registration jurisdiction, and if it is expected that the SORNA 
requirements will be carried out wholly or in part through such 
agreements.
     A direction to tribal officials and agencies to provide 
such cooperation and assistance as the State or States may need to 
carry out and enforce the SORNA requirements, if the tribe elects to 
delegate the SORNA functions to a State or States.
     A date or timing notation that shows the resolution was 
adopted on or prior to July 27, 2007.
     A direction that the SMART Office of the U.S. Department 
of Justice be notified of the tribe's election and that the resolution 
or enactment be transmitted to the SMART Office.

    Subsection (a)(2) of SORNA section 127 specifies three 
circumstances in which registration and notification functions are 
deemed to be delegated to the State or States in which a tribe is 
located, even if the tribe does not make an affirmative decision to 
delegate:
     Under subparagraph (A) of subsection (a)(2), these 
functions are always delegated to the State if the tribe is subject to 
the law enforcement jurisdiction of the State under 18 U.S.C. 1162. (If 
a tribe's land is in part subject to state law enforcement jurisdiction 
under 18 U.S.C. 1162 and in part outside of the areas subject to 18 
U.S.C. 1162, then: (i) Sex offender registration and notification 
functions are automatically delegated to the relevant State in the 
portion of the tribal land subject to 18 U.S.C. 1162, and (ii) the 
tribe has a choice between functioning as a registration jurisdiction 
or delegating registration and notification functions to the State in 
the portion of its land that is not subject to 18 U.S.C. 1162.)
     Under subparagraph (B) of subsection (a)(2), these 
functions are delegated to the State or States if the tribe does not 
make an affirmative election to function as a registration jurisdiction 
within one year of the enactment of SORNA--i.e., within one year of 
July 27, 2006--or rescinds a previous election to function as a 
registration jurisdiction.
     Under subparagraph (C) of subsection (a)(2), these 
functions are delegated to the State or States if the Attorney General 
determines that the tribe has not substantially implemented the 
requirements of SORNA and is not likely to become capable of doing so 
within a reasonable amount of time.
    If a tribe does elect under section 127 to become a SORNA 
registration jurisdiction, section 127(b) specifies that this does not 
mean that the tribe must duplicate registration and notification 
functions that are fully carried out by the State or States within 
which the tribe is located, and subsection (b) further authorizes the 
tribes and the States to make cooperative arrangements for the 
discharge of some or all of these functions. For example, SORNA section 
118 requires jurisdictions to make information concerning their sex 
offenders available to the public through the Internet. If a tribe did 
not want to maintain a separate sex offender Web site for this purpose, 
it would not need to do so, as long as a cooperative agreement was made 
with the State to have information concerning the tribe's registrants 
posted on the State's sex offender Web site. Likewise, a tribe that 
elects to be a SORNA registration jurisdiction remains free to make 
cooperative agreements under which the State (or a political 
subdivision thereof) will handle registration of the tribe's sex 
offenders--such as initially registering these sex offenders, 
conducting periodic appearances of the sex offenders to verify the 
registration information, and receiving reports by the sex offenders 
concerning changes in the registration information--to the extent and 
in a manner mutually agreeable to the tribe and the State. In general, 
the use of cooperative agreements affords tribes flexibility in 
deciding which functions under SORNA they would seek to have state 
authorities perform, and which they wish to control or discharge 
directly. For example, the State could carry out certain registration 
functions, but the tribe could retain jurisdiction over the arrest 
within its territory of sex

[[Page 30216]]

offenders who fail to register, update registrations, or make required 
verification appearances, if a cooperative agreement between the tribe 
and the State so provided.

IV. Covered Sex Offenses and Sex Offenders

    SORNA refers to the persons required to register under its 
standards as ``sex offenders,'' and section 111(1) of SORNA defines 
``sex offender'' in the relevant sense to mean ``an individual who was 
convicted of a sex offense.'' ``Sex offense'' is in turn defined in 
section 111(5) and related provisions. The term encompasses a broad 
range of offenses of a sexual nature under the law of any 
jurisdiction--including offenses under federal, military, state, 
territorial, local, tribal, and foreign law, but with some 
qualification regarding foreign convictions as discussed below.

A. Convictions Generally

    A ``sex offender'' defined in SORNA section 111(1) is a person who 
was ``convicted'' of a sex offense. Hence, whether an individual has a 
sex offense ``conviction'' determines whether he or she is within the 
minimum categories for which the SORNA standards require registration.
    The convictions for which SORNA requires registration include 
convictions for sex offenses by any United States jurisdiction, 
including convictions for sex offenses under federal, military, state, 
territorial, or local law. Indian tribal court convictions for sex 
offenses are generally to be given the same effect as convictions by 
other United States jurisdictions. It is recognized, however, that 
Indian tribal court proceedings may differ from those in other United 
States jurisdictions in that the former do not uniformly guarantee the 
same rights to counsel that are guaranteed in the latter. Accordingly, 
a jurisdiction may choose not to require registration based on a tribal 
court conviction resulting from proceedings in which: (i) The defendant 
was denied the right to the assistance of counsel, and (ii) the 
defendant would have had a right to the assistance of counsel under the 
United States Constitution in comparable state proceedings. A 
jurisdiction will not be deemed to have failed to substantially 
implement SORNA based on its adoption of such an exception.
    Since the SORNA registration requirements are predicated on 
convictions, registration (or continued registration) is normally not 
required under the SORNA standards if the predicate conviction is 
reversed, vacated, or set aside, or if the person is pardoned for the 
offense on the ground of innocence. This does not mean, however, that 
nominal changes or terminological variations that do not relieve a 
conviction of substantive effect negate the SORNA requirements. For 
example, the need to require registration would not be avoided by a 
jurisdiction's having a procedure under which the convictions of sex 
offenders in certain categories (e.g., young adult sex offenders who 
satisfy certain criteria) are referred to as something other than 
``convictions,'' or under which the convictions of such sex offenders 
may nominally be ``vacated'' or ``set aside,'' but the sex offender is 
nevertheless required to serve what amounts to a criminal sentence for 
the offense. Rather, an adult sex offender is ``convicted'' for SORNA 
purposes if the sex offender remains subject to penal consequences 
based on the conviction, however it may be styled. Likewise, the 
sealing of a criminal record or other action that limits the publicity 
or availability of a conviction, but does not deprive it of continuing 
legal validity, does not change its status as a ``conviction'' for 
purposes of SORNA.
    ``Convictions'' for SORNA purposes include convictions of juveniles 
who are prosecuted as adults. It does not include juvenile delinquency 
adjudications, except under the circumstances specified in SORNA 
section 111(8). Section 111(8) provides that delinquency adjudications 
count as convictions ``only if the offender is 14 years of age or older 
at the time of the offense and the offense adjudicated was comparable 
to or more severe than aggravated sexual abuse (as described in section 
2241 of title 18, United States Code), or was an attempt or conspiracy 
to commit such an offense.''

    Hence, SORNA does not require registration for juveniles 
adjudicated delinquent for all sex offenses for which an adult sex 
offender would be required to register, but rather requires 
registration only for a defined class of older juveniles who are 
adjudicated delinquent for committing particularly serious sexually 
assaultive crimes or child molestation offenses. Considering the 
definition of the federal ``aggravated sexual abuse'' offense 
referenced in section 111(8), offenses under a jurisdiction's laws 
``comparable to'' that offense are those that cover:
     Engaging in a sexual act with another by force or the 
threat of serious violence (see 18 U.S.C. 2241(a));
     Engaging in a sexual act with another by rendering 
unconscious or involuntarily drugging the victim (see 18 U.S.C. 
2241(b)); or
     Engaging in a sexual act with a child under the age of 12 
(see 18 U.S.C. 2241(c)). ``Sexual act'' for this purpose should be 
understood to include any of the following: (i) Oral-genital or oral-
anal contact, (ii) any degree of genital or anal penetration, and (iii) 
direct genital touching of a child under the age of 16. This follows 
from the definition of sexual act in 18 U.S.C. 2246(2), which applies 
to the 18 U.S.C. 2241 ``aggravated sexual abuse'' offense.

    As with other aspects of SORNA, the foregoing defines minimum 
standards. Hence, the inclusions and exclusions in the definition of 
``conviction'' for purposes of SORNA do not constrain jurisdictions 
from requiring registration by additional individuals--e.g., more 
broadly defined categories of juveniles adjudicated delinquent for sex 
offenses--if they are so inclined.

B. Foreign Convictions

    Section 111(5)(B) of SORNA instructs that registration need not be 
required on the basis of a foreign conviction if the conviction ``was 
not obtained with sufficient safeguards for fundamental fairness and 
due process for the accused under guidelines or regulations established 
[by the Attorney General].'' The following standards are adopted 
pursuant to section 111(5)(B):
     Sex offense convictions under the laws of Canada, Great 
Britain, Australia, and New Zealand are deemed to have been obtained 
with sufficient safeguards for fundamental fairness and due process, 
and registration must be required for such convictions on the same 
footing as domestic convictions.
     Sex offense convictions under the laws of any foreign 
country are deemed to have been obtained with sufficient safeguards for 
fundamental fairness and due process if the U.S. State Department, in 
its Country Reports on Human Rights Practices, has concluded that an 
independent judiciary generally (or vigorously) enforced the right to a 
fair trial in that country during the year in which the conviction 
occurred. Registration must be required on the basis of such 
convictions on the same footing as domestic convictions.
     With respect to sex offense convictions in foreign 
countries that do not satisfy the criteria stated above, a jurisdiction 
is not required to register the convicted person if the jurisdiction 
determines--through whatever process or procedure it may choose to 
adopt--that the conviction does not constitute a reliable indication of 
factual guilt because of the lack of an impartial tribunal, because of 
denial of the right to respond to the evidence against the person or to 
present exculpatory evidence, or because of denial of the right to the 
assistance of counsel.


[[Page 30217]]


    The foregoing standards do not mean that jurisdictions must 
incorporate these particular criteria or procedures into their 
registration systems, if they wish to register foreign sex offense 
convicts with fewer qualifications or no qualifications. Rather, the 
stated criteria define the minimum categories of foreign convicts for 
whom registration is required for compliance with SORNA, and as is 
generally the case under SORNA, jurisdictions are free to require 
registration more broadly than the SORNA minimum.

C. Sex Offenses Generally

    The general definition of sex offenses for which registration is 
required under the SORNA standards appears in section 111(5)(A). The 
clauses in the definition cover the following categories of offenses:

     Sexual Act And Sexual Contact Offenses (section 
111(5)(A)(i)): The first clause in the definition covers ``a criminal 
offense that has an element involving a sexual act or sexual contact 
with another.'' (``Criminal offense'' in the relevant sense refers to 
offenses under any body of criminal law, including state, local, 
tribal, foreign, military, and other offenses, as provided in section 
111(6).) The offenses covered by this clause should be understood to 
include all sexual offenses whose elements involve: (i) Any type or 
degree of genital, oral, or anal penetration, or (ii) any sexual 
touching of or contact with a person's body, either directly or through 
the clothing. Cf. 18 U.S.C. 2246(2)-(3) (federal law definitions of 
sexual act and sexual contact).
     Specified Offenses Against Minors (section 111(5)(A)(ii)): 
The second clause in the definition covers ``a criminal offense that is 
a specified offense against a minor.'' The statute provides a detailed 
definition of ``specified offense against a minor'' in section 111(7), 
which is discussed separately below.
     Specified Federal Offenses (section 111(5)(A)(iii)): The 
third clause covers most sexual offenses under federal law. The covered 
chapters and offense provisions in the federal criminal code are 
explicitly identified by citation.
     Specified Military Offenses (section 111(5)(A)(iv)): The 
fourth clause covers sex offenses under the Uniform Code of Military 
Justice, as specified by the Secretary of Defense.
     Attempts And Conspiracies (section 111(5)(A)(v)): The 
final clause in the definition covers attempts and conspiracies to 
commit offenses that are otherwise covered by the definition of ``sex 
offenses.'' This includes both offenses prosecuted under general 
attempt or conspiracy provisions, where the object offense falls under 
the SORNA ``sex offense'' definition, and particular offenses that are 
defined as, or in substance amount to, attempts or conspiracies to 
commit offenses that are otherwise covered. For example, in the latter 
category, a jurisdiction may define an offense of ``assault with intent 
to commit rape.'' Whether or not the word ``attempt'' is used in the 
definition of the offense, this is in substance an offense that covers 
certain attempts to commit rapes and hence is covered under the final 
clause of the SORNA definition.

    SORNA section 111(5)(C) qualifies the foregoing definition of ``sex 
offense'' to exclude ``[a]n offense involving consensual sexual conduct 
* * * if the victim was an adult, unless the adult was under the 
custodial authority of the offender at the time of the offense, or if 
the victim was at least 13 years old and the offender was not more than 
four years older than the victim.'' The general exclusion with respect 
to consensual sexual offenses involving adult victims means, for 
example, that a jurisdiction does not have to require registration 
based on prostitution offenses that consist of the offender paying or 
receiving payment from an adult for a sexual act between them (unless 
the victim is under the custodial authority of the offender). The 
exclusion for certain cases involving child victims based on victim age 
and age difference means that a jurisdiction may not have to require 
registration in some cases based on convictions under provisions that 
prohibit sexual acts or contact (even if consensual) with underage 
persons. For example, under the laws of some jurisdictions, an 18-year-
old may be criminally liable for engaging in consensual sex with a 15-
year-old. The jurisdiction would not have to require registration in 
such a case to comply with the SORNA standards, since the victim was at 
least 13 and the offender was not more than four years older.

D. Specified Offenses Against Minors

    The offenses for which registration is required under the SORNA 
standards include any ``specified offense against a minor'' as defined 
in section 111(7). The SORNA section 111(7) definition of specified 
offense against a minor covers any offense against a minor--i.e., a 
person under the age of 18, as provided in section 111(14)--that 
involves any of the following:
     Kidnapping or False Imprisonment of a Minor (section 
111(7)(A)-(B)): These clauses cover ``[a]n offense (unless committed by 
a parent or guardian) involving kidnapping [of a minor]'' and ``[a]n 
offense (unless committed by a parent or guardian) involving false 
imprisonment [of a minor].'' The relevant offenses are those whose 
gravamen is abduction or unlawful restraint of a person, which go by 
different names in different jurisdictions, such as ``kidnapping,'' 
``criminal restraint,'' or ``false imprisonment.'' Jurisdictions can 
implement the offense coverage requirement of these clauses by 
requiring registration for persons convicted of offenses of this type 
(however designated) whose victims were below the age of 18. It is left 
to jurisdictions' discretion under these clauses whether registration 
should be required for such offenses in cases where the offender is a 
parent or guardian of the victim.
     Solicitation of a Minor to Engage in Sexual Conduct 
(section 111(7)(C)): This clause covers ``[s]olicitation [of a minor] 
to engage in sexual conduct.'' ``Solicitation'' under this clause and 
other SORNA provisions that use the term should be understood broadly 
to include any direction, request, enticement, persuasion, or 
encouragement of a minor to engage in sexual conduct. ``Sexual 
conduct'' should be understood to refer to any sexual activity 
involving physical contact. (See the discussion later in this list of 
``criminal sexual conduct'' under section 111(7)(H).) Hence, 
jurisdictions can implement the offense coverage requirement under this 
clause by requiring registration, in cases where the victim was below 
the age of 18, based on:

    [cir] Any conviction for an offense involving solicitation of the 
victim under a general attempt or solicitation provision, where the 
elements of the object offense include sexual activity involving 
physical contact, and
    [cir] Any conviction for an offense involving solicitation of the 
victim under any provision defining a particular crime whose elements 
include soliciting or attempting to engage in sexual activity involving 
physical contact.

     Use of a Minor in a Sexual Performance (section 
111(7)(D)): This clause covers offenses involving ``[u]se [of a minor] 
in a sexual performance.'' That includes both live performances and 
using minors in the production of pornography, and has some overlap 
with section 111(7)(G), which expressly covers child pornography 
offenses.
     Solicitation of a Minor to Practice Prostitution (section 
111(7)(E)): This

[[Page 30218]]

clause covers offenses involving ``[s]olicitation [of a minor] to 
practice prostitution.'' Jurisdictions can implement the offense 
coverage requirement under this clause by requiring registration, in 
cases where the victim was below the age of 18, based on:
    [cir] Any conviction for an offense involving solicitation of the 
victim under a general attempt or solicitation provision, where the 
object offense is a prostitution offense, and
    [cir] Any conviction for an offense involving solicitation of the 
victim under any provision defining a particular crime whose elements 
include soliciting or attempting to get a person to engage in 
prostitution.
     Video Voyeurism Involving a Minor (section 111(7)(F)): 
This clause covers ``[v]ideo voyeurism as described in section 1801 of 
title 18, United States Code [against a minor].'' The cited federal 
offense in essence covers capturing the image of a private area of 
another person's body, where the victim has a reasonable expectation of 
privacy against such conduct. Jurisdictions can implement the offense 
coverage requirement under this clause by requiring registration for 
offenses of this type, in cases where the victim was below the age of 
18.
     Possession, Production, or Distribution of Child 
Pornography (section 111(7)(G)): This clause covers ``possession, 
production, or distribution of child pornography.'' Jurisdictions can 
implement the offense coverage requirement under this clause by 
requiring registration for offenses whose gravamen is creating or 
participating in the creation of sexually explicit visual depictions of 
persons below the age of 18, making such depictions available to 
others, or having or receiving such depictions.
     Criminal Sexual Conduct Involving a Minor and Related 
Internet Activities (section 111(7)(H)): This clause covers 
``[c]riminal sexual conduct involving a minor, or the use of the 
Internet to facilitate or attempt such conduct.'' The definition has 
two parts:
    [cir] The ``criminal sexual conduct involving a minor'' language in 
this definition covers sexual offenses whose elements involve physical 
contact with the victim--such as provisions defining crimes of 
``rape,'' ``sexual assault,'' ``sexual abuse,'' or ``incest''--in cases 
where the victim was below 18 at the time of the offense. In addition, 
it covers offenses whose elements involve using other persons in 
prostitution--such as provisions defining crimes of ``pandering,'' 
``procuring,'' or ``pimping''--in cases where the victim was below 18 
at the time of the offense. Coverage is not limited to cases where the 
victim's age is an element of the offense, such as prosecution for 
specially defined child molestation or child prostitution offenses. 
Jurisdictions can implement the offense coverage requirement under the 
``criminal sexual conduct involving a minor'' language of this clause 
by requiring registration for ``criminal sexual conduct'' offenses as 
described above whenever the victim was in fact below the age of 18 at 
the time of the offense. (Section 111(7)(C) and (E) separately require 
coverage of offenses involving solicitation of a minor to engage in 
sexual conduct or to practice prostitution, but registration must be 
required for offenses involving sexual conduct with a minor or the use 
of a minor in prostitution in light of section 111(7)(H), whether or 
not the offense involves ``solicitation'' of the victim.)
    [cir] Jurisdictions can implement the ``use of the Internet to 
facilitate or attempt such conduct'' part of this definition by 
requiring registration for offenses that involve use of the Internet in 
furtherance of criminal sexual conduct involving a minor as defined 
above, such as attempting to lure minors through Internet 
communications for the purpose of sexual activity.
     Conduct By Its Nature A Sex Offense Against a Minor 
(section 111(7)(I)): The final clause covers ``[a]ny conduct that by 
its nature is a sex offense against a minor.'' It is intended to ensure 
coverage of convictions under statutes defining sexual offe