(see updated post for 2013 legislation here)
Just hearing the term “sex offender” elicits an almost visceral feeling of disgust in most people, so it’s not surprising that laws regarding sex offenders tend to only get tougher. These laws usually have been passed in reaction to a high-profile sex-related crime, often bearing the names of the victims (e.g., Megan’s Law, the Adam Walsh Child Protection Act). Accordingly, a vote against the law is seen as a vote against the victim. Legislative hearings include highly emotional testimony from victims of sex crimes, but predictably few arguments from the side that could be labeled as sympathetic towards sex offenders. This creates laws that are based on emotional reactions rather than rational arguments about the effectiveness of certain policies. The consequence of this one-way-only approach is draconian sex offender regimes that not only infringe on the constitutional rights of those accused or convicted of sex offenses, but also actually reduce public safety.
Sex Offender Myths
The sensationalist nature of media coverage has spawned many public misconceptions about sex offenders, namely that: (1) sex crimes are becoming more and more prevalent; (2) sex offenders have a high re-offense rate and can’t be rehabilitated; (3) registered sex offenders are mostly violent rapists and pedophiles.
The big stories about sex crimes follow either the apprehension of a particularly reprehensible offender (often detailing the reprehensible acts to satisfy our morbid curiosities), or the unjustifiable early release of a sex offender, such as this story from Indiana about a man who exploited a poorly-worded early release law for inmates who earn college degrees. Rarely do we hear about sex-crime accusations that turn out false, like what happened to photographer Paul Rusconi, who lost his infant daughters for six months before being cleared of allegations (and this likely would not have been a story if there wasn’t a famous person involved). Nor do we hear about the sex offenders who go through treatment and are rehabilitated, because in those cases, no news is good news.
Sex crime rates have declined over the last couple decades. We aren’t any more likely to be the victim of a sex crime, we’re just more likely to hear about it. And studies show reoffense rates for sex offenders are barely over five percent, making sex offenders among the least likely criminals to reoffend. When sex offenders reoffend, it feels like the justice system has failed to protect society and makes for a compelling news story. But it doesn’t reflect the reality that, statistically speaking, you are more likely to be victimized by a someone with no history of sex crimes than by an already registered sex offender. Granted, some sub-classes of sex offenses, such as particularly violent crimes or crimes involving very young children, have significantly higher reoffense rates. But the low average reoffense rate is partly due to the fact that the label “sex offender” is also used for an broad range of non-dangerous offenses, such as public urination or consensual sex between two minors (juveniles comprise about a quarter of registered sex offenders, and commit more than a third of sex crimes against minors).
How Sex Offender Laws Fail to Protect the Public
Sex offender registries are perhaps the best-known aspect of sex offender regimes. Since the passage of the Jacob Wetterling Act in 1994, every state has been required by federal law to maintain a sex offender registry. By making the names and addresses of sex offenders readily available to the public, often with interactive maps, the goal is to empower people with information so they can take appropriate steps to protect themselves and their families.
However, this information does not really prove useful for enhancing safety. If there is a sex offender in your neighborhood, you can tell your kids to stay away from the creepy guy’s house, but that’s about it. Most sex offenders are not under house arrest, so unless you memorize every face pictured in the directory, you’re in the dark when you go to a public place. Furthermore, since most sex offenses are committed by first-time offenders who know their victims, not strangers who have previously been convicted, the registry could not have provided useful information for prevention in the majority of cases. However, this information is useful for community members who wish to engage in violent vigilantism or harassment of sex offenders. While most people don’t have much sympathy for sex offenders subject to harassment, innocent people have also been hurt due to mistakes or misunderstandings of the registry, such as this 78 year-old man who was beaten to death with a baseball bat because his name was similar to a convicted sex offender’s.
Another problem with some states’ registries lies in the overly broad classification of crimes as sex offenses. In at least ten states, you can earn the sex offender designation from fairly innocuous forms of public indecency like streaking, mooning, or urinating in public. None of the registries provide any factual details of the offenses, just the names of the crimes (and sometimes not even that). So if a registry lists the offense of indecent exposure, for example, the public has no way of distinguishing a high school prankster who streaks a football game from a creep who purposely goes to a playground and waves his member at children to achieve sexual gratification. Many registries also contain numerous purely statutory offenders who are often also minors at the time of the offense, such as a 17 year-old who engages in consensual sexual activity with his 15 year-old girlfriend. In many jurisdictions, this would be labeled “sexual assault against a minor,” which makes this person look like a greater threat than the circumstances suggest. By effectively diluting the sex offender registry with people who pose little threat to public safety, it is more difficult to identify and keep track of the high-risk offenders. California, as an extreme example, has the largest registry in the country with over one hundred thousand registered sex offenders. This is an overwhelming amount of information to sift through, and can make it appear a sex offender is lurking around every corner – just look at the map of Los Angeles county. Rather than providing useful information, it just scares and furthers the misconception that the risk of sex offenses is increasing at an alarming rate.
Rehabilition of Sex Offenders
Sex offender laws are also arguably counterproductive to safety due to their publicly punitive nature, which drives many offenders into isolation and despair and increases the likelihood they will reoffend. Instead of reintegrating with society, becoming productive working citizens, and forming healthy social relationships, they may face stigmatizion and harassment, difficulty finding jobs, and emotional alienation.
About half of the states also impose residency restrictions on sex offenders, prohibiting them from within certain distances (ranging from one thousand feet to a half mile) of places children frequent, such as schools, playgrounds, and in some cases libraries. In more densely populated areas, this can leave few options and the result is often either: (1) concentrating them into “sex offender communes” in the few neighborhoods or apartment buildings outside of the restricted areas; (2) vagrancy, which can lead to camps of homeless offenders in parks or under bridges; or (3) driving them to go “underground” by ceasing to notify the registry of addresses. All of these outcomes can increase stress and decrease availability of adequate support, both of which are correlated with higher reoffense rates. And in the event they do reoffend, isolation from the public eye or failure to register can make the new offenses more difficult to detect and solve.
Changes to Sex Offender Laws – Moving in the Right Direction?
The root of the ineffectiveness of the current laws is the tendency to base policies on our cultural disgust and fear of sex offenders rather than on a rational analysis of the best way to protect society. Empirical studies from Colorado and Minnesota show that residency restrictions have no correlation to lower reoffense rates, law enforcement agencies complain that bloated registries drain resources and hamper effective monitoring of more dangerous sex offenders, and countless examples exist of non-dangerous minor offenders whose lives have been deeply impacted or ruined by overly broad classification of sex offenders. However, the political will of the legislature is still being driven by public misconceptions, as several states consider imposing stricter requirements on sex offenders.
Oklahoma recently passed a law that bans convicted sex offenders from living with children. It sounds sensible—sex offenders were already restricted from living near schools—yet Oklahoma requires registration of those who commit indecent exposure (excluding public urination) or who crimes involving producing or distributing “obscene material,” which can include pornography depicting only adults. Pending legislation HB1193 would require an law enforcement agencies to notify the local newspaper of sex offenders designated as “habitual” or “aggravated.”
New York, which currently imposes no residency restrictions on sex offenders, is considering banning sex offenders from living within 1000 feet of a school, daycare or park. Even though 1000 feet is on the lower end of residency restrictions, this could be a difficult requirement in the New York City metropolitan area, especially for homeless offenders. Another proposal, S06073, could also have a disparate impact on homeless or transient offenders by requiring Electronic Home Monitoring (ankle bracelets) on offenders who fail to register two or more times. Homeless offenders are much more likely to have registration issues since they have no address to register, and often have mental health issues or other problems that limit their ability to comply.
A bill in Iowa would require nursing homes and assited living facilities to conduct a sex offender registry check prior to the admission of any new tenants or patients, and then to notify all residents, the emergency contact of all residents, the facilities’ staff, and all visitiors to the facility. While it makes sense to want to protect these more vulnerable populations, the nursing facilites covered by the bill have argued that this will impose an onerous burden on their time and resources.
Louisiana leads the charge in the current race to get tough on sex offenders, as Governor Bobby Jindal has made it one of the top priorities of his administration. He has already having signed legislation mandating longer prison sentences for sex offenders and authorizing chemical castration for rapists, in which hormone-limiting drugs are used to reduce libido and capacity for arousal. Although seemingly effective, chemical castration raises serious ethical questions when not undertaken voluntarily (it is reversible, unlike physical castration, but can pose serious health risks in some cases). And Louisiana isn’t done—SB428 prohibits sex offenders from living within three miles of their victims and prohibits any form of communication with the victims or family members without their prior written consent. The goal of preventing retraumatization of victims is a noble one, but a three mile restirction in addition to the restrictions around schools and parks is going to create even more limited options, and in smaller towns could effectively result in banishment. Another popular proposal, SB442 seeks to ban sex offenders convicted of certain crimes (mostly involving minors) from social networking sites including Facebook. A legal challenge to a similar ban in Indiana has made the argument that this infringes on First Amendment rights by also preventing offenders from engaging in political, religious, or business-oriented activity on these sites, and a ruling is expected within a month.
The ideas behind these proposals are well-intentioned, and some could actually be good ideas within a more sensible overall regime. Yet as long as the registries remain bloated with low-risk offenders and our policies remain focused on punishment and stigmatization rather than prevention and rehabilitation, sex offender laws will continue to do more harm than good.