Sex offender registration. If you did not already know this, the United States, Canada, and a few other countries (some in the UK, if memory serves) register, track, supervise, and in some cases, notify the public about “sex offenders” living in their midst.
These public policies are touted as the end-all solution to keeping children safe. So, here, I want to take a good look into their basis — why are they touted as the end-all solution? — and what the facts and experts say on the subject.
The Basic Assumption Is…
The basic assumption of sex offender registration seems to have evolved over time. Originally, it started in 1989 with the kidnapping of Jacob Wetterling in a small (read: tiny) town in Minnesota. Jacob’s kidnapping shocked the nation, not just Minnesota, and if you are in your 20’s and 30’s, maybe even a little older, your childhood was never the same after his disappearance. You went places in groups, never alone, and you were taught that strangers were people to avoid.
Jacob’s parents worked tirelessly to find out what happened to their son. The police investigation was huge, and the list of suspects did not seem to hold much promise. In fact, the investigation process turned up the fact that police did not really know where existing sexual criminals lived, they had to hunt these people down if they wanted to question them. So the original purpose behind sex offender registration was not public notification at all, but as an investigative tool for law enforcement to look into new sexual crimes.
The idea behind this was the ever-popular idea that once someone commits a sexual crime, particularly rape or child sexual abuse, they are prone to do it again. So much so that the phrase, “Once a sex offender, always a sex offender,” was coined in the aftermath of Jacob’s disappearance. Starting in the 1990’s, the United States began taking an increasingly harsh approach to sexual crimes. Jacob was not the first victim to have his name on a piece of legislation aimed at protecting children. Last year, we finally found out that Jacob had been raped and murdered after he was kidnapped by Danny Heinrich.
Because The Children… The Evolution Of Policy
Policy has evolved much since the first implementation of sex offender registration. Now, many states have a three-tiered system where the lowest level are considered “least likely” to reoffend, the middle level are considered “moderately likely” to reoffend, and the highest level are considered “highly likely” to reoffend. Now, offenders in the highest tier and sometimes the middle tier mandate public notification: The news tells you where they live, a community will hold an informational meeting, and the offender’s name, address, and other information can be found on the internet. Offenders are restricted on where they can live in some states, and in others, they have “sex offender” branded onto their driver’s license. It is simply not possible to list all of the restrictions that have been enacted against “sex offenders”.
Time after time, there is one refrain that has supported policy after policy aimed at sex offenders: “It’s for the children.” We are told that a “sex offender” will inevitably strike again, and we are told that our children must be kept safe from these monsters. Indeed, it is the public’s insatiable urge to stay safe from the monstrous “sex offender” that is the driving force behind most policies aimed at offenders. By legal standards, these policies are there for the protection of the community, and therefore do not constitute punishment. Therefore, states and indeed the entire nation are well within their right to draft policy after policy. As long as the policy is there to protect the public, the policy will be upheld by the courts. And in case you were wondering, the end of someone’s sentence has no effect on whether any of the policies outlined here are applicable to that offender.
A Hard Look At The Facts Shows…
The basis for many of these policies are that a “sex offender” will invariably reoffend with another sexual crime. So just what is the recidivism rate for sex offenders? A great many studies have been done on this issue, and recidivism is not an easy thing to measure: A conservative look at recidivism often looks at reincarceration, or whether someone returns to prison, a moderate look at recidivism looks at convictions, where the most liberal look at recidivism examines the rearrest rate. Some studies look at what kind of crime an existing offender commits, while other studies ignore that. Most studies look only at those that go to prison, and studies have differing follow-up periods, though three years seems to be consistent in many studies.
So what kind of recidivism rates do these studies find? Predictably, they vary.
One of the most comprehensive studies of sex offender recidivism (sample: 45,398 offenders across 118 studies, done in 2009) found that sexual recidivism was around 11.5%, violent and sexual recidivism was around 19.5% and general (any) crime was around 33.2%.
A somewhat narrower look at recidivism in California found an unusually high return-to-prison (conservative, remember) rate of 56.1% with a three-year follow-up period (8,989 offenders, done in 2015), but that study tracked what kind of crimes were being committed: .6% new sexual crimes, 2.3% failure to register as a sex offender, 6.3% a non-sexual crime, and finally, 90.8%… parole violations.
In the state of Minnesota, a 2007 study on 3,166 sex offenders found the overall 3-year rearrest rate for sex crimes (liberal) was 7%, while 3% were reincarcerated. By the end of the 8.4 year follow-up period, 12% were rearrested, while 7% were reincarcerated. When they looked at non-sexual recidivism, they found a 24% 3-year rearrest rate and a 9% reincarceration rate, and a 39% 8.4 year rearrest rate and a 19% reincarceration rate. They noted that, “The predictors of non-sexual reoffending were very different from those for sexual recidivism.”
There are, of course, other studies that have been done, but these three studies paint a very different picture from what has been told to the American public: Sex offenders do not often commit new crimes, and when they do, they are mostly not new sexual crimes as we fear. In fact, it is more common for a sex offender to not commit a new crime at all, and when they do commit a new crime, it is not a sexual crime. The California study would have us believing they are probation/parole violations, and many experts have affirmed this, though finding specifics of each state can be particularly challenging.
So Who Commits “Sex Offenses”
Those with no criminal record commit sex offenses (95% of the time), often with trauma in their childhood (84.4%, other recent, unpublished studies put it higher), often males, and at least 35.6% are juveniles — children — and the rest adults. Besides that, there is no real demographic data available on sexual offenders. There is no one race, age, or even religion that commits sexual crimes more than others. The only thing we really know is that most have no criminal record, most have trauma in their childhoods, and many are children themselves.
Who Is A Sex Offender?
This depends entirely on the state: In most states, sexual assault is considered a “sex offense,” and in most states, possessing or distributing sexual images of a child are considered a “sex offense,” regardless of the age of the person possessing or distributing such material. There have been cases where children themselves have been convicted of such crimes for “sexting” pictures of themselves to other children. If the victim was a child, all of these crimes would be considered “child sex offenses.” Even the two teenagers shown on This Is Life With Lisa Ling, on CNN, would be considered “child sex offenders” by law.
These are not the only crimes that warrant sex offender registration and restrictions, however. In Minnesota, for example, adult or juvenile first-degree murder convictions warrant registration, along with kidnapping. In some states, public urination counts. In many states, indecent exposure counts. By law, it is not the circumstances that trigger the requirement to register and any restrictions that are associated with registration: It is the specific statute that the offender is convicted of. When you see the requirement to register in someone’s sentence, it is merely a notification of their requirement and the court has no say in imposing that requirement.
After The Fact, Low Recidivism
Sex offender policies are only effective after the commission of a crime, and recidivism is low and could be much lower with proper reintegration efforts. How do we know that it could be lower with proper reintegration efforts? Because much of the reoffenses are probation/parole violations. What studies are finding is that the longer an offender remains offense-free in the community, their risk to commit another crime drops dramatically. Studies are also finding that offenders that have ties to the community like stable jobs, relationships with significant friends and family, stable housing situations are more inclined to live a crime-free life.
What this means is that sex offender policies do not aid prevention, but instead drive offenders towards reoffending. How? By pushing them away from stable jobs, stable housing, and significant relationships. They are being pushed away from the very things that can help them remain offense-free by policies intended to do the opposite: Curb mythically high recidivism rates.
An Increasing Chorus Of Criticism
There is an increasing chorus that is rising against these policies. Some have asked if they reinforce inequality. The Jacob Wetterling Resource Center has spoken against them. Human Rights Watch has issued several reports on the subject. Much of the research on this subject is clear. A great many news articles are bringing attention to this issue.
Most recently, a law was passed that requires “child sex offenders” to have a mark on their passports that reads, “The bearer was convicted of a sex offense against a minor and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).”
In addition, some high courts are asking whether these policies violate constitutional rights. Earlier this year, the Supreme Court ruled that sex offenders could not be restricted from social media because it constitutes free speech, and the Pennsylvania Supreme Court ruled that retroactive registration requirements violated the constitution, and that the registry itself constituted punishment. Other courts have ruled that public registration is cruel and unusual punishment.
The war of public opinion is waging on many fronts. Not one of those questioning these policies is questioning the impact that rape can have on victims, particularly not the Jacob Wetterling Resource Center, which has a focus on training law enforcement, teachers, and professionals in prevention and aiding survivors.
However, one must question if the policies we have put in place under the mask of prevention do any such thing, and if not, how we can improve our efforts to protect children and be effective in doing so.