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August 12, 2014

"Sex Offender Laws Have Gone Too Far"

The title of this post is the headline of this notable new Slate commentary authored by Matt Mellema, Chanakya Sethi, and Jane Shim which appears to be the first in a series. Here are excerpts:

[The] Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, signed by President Bill Clinton in 1994, ... used federal dollars to push every state to create a [sex offender] registry.  It worked.  Today, all 50 states and Washington, D.C., have them. Since then, Congress has also passed several related pieces of legislation, including two major statutes. Megan’s Law, enacted in 1996, required that the police give the public access to some sex offender registry data, such as an offender’s name, photograph, and address.  In 2006, the Sex Offender Registration and Notification Act toughened the standards for who must register and for how long, and it upped the consequences of registration by requiring, for example, periodic in-person visits to police.

The upshot, experts say, is that the United States has the most draconian sex registration laws in the world.  As a result, the number of registrants across the nation has swelled—doubling and then doubling again to 750,000 — in the two decades since Jacob’s Law passed, according to data collected by the Center for Missing and Exploited Children....

Is the American approach to sex registration working?  Who goes on the registries, for how long, and for what kinds of crimes?  Do the answers suggest that they are helping to keep kids safe — or sweeping in too many people and stoking irrational fears?

In seeking answers to those questions, over the last several months, we were surprised to find that one of the sharpest — and loudest — critics of the ballooning use of registries is [Jacob's mother] Patty Wetterling.  “These registries were a well-intentioned tool to help law enforcement find children more quickly,” she told us.  “But the world has changed since then.”  What’s changed, Wetterling says, is what science can tell us about the nature of sex offenders.

The logic behind the past push for registries rested on what seem like common sense assumptions.  Among the most prominent were, first, sex offenders were believed to be at a high risk for reoffending — once a sex offender, always a sex offender.  Second, it was thought that sex offenses against children were commonly committed by strangers. Taken together, the point was that if the police had a list, and the public could access it, children would be safer.

The problem, however, is that a mass of empirical research conducted since the passage of Jacob’s Law has cast increasing doubt on all of those premises.  For starters, “the assumption that sex offenders are at high risk of recidivism has always been false and continues to be false,” said Melissa Hamilton, an expert at the University of Houston Law Center, pointing to multiple studies over the years.  “It’s a myth.”

Remarkably, while polls show the public thinks a majority, if not most, sex offenders will commit multiple sex crimes, most studies, including one by the Department of Justice, place the sexual recidivism rate between 3 and 14 percent in the several years immediately following release, with those numbers falling further over time.  Which number experts prefer within that range depends on how they define recidivism.  If you count arrests as well as convictions, for example, the rate is higher, because not all arrests lead to convictions.  And if you distinguish among sex offenders based on risk factors, such as offender age, degree of sexual deviance, criminal history, and victim preferences — instead of looking at them as a homogenous group — you may find a higher or lower rate.  Rapists and pedophiles who molest boys, for example, are generally found to have the highest recidivism rates.  Nevertheless, the bottom line is clear: Recidivism rates are lower than commonly believed.

And in contradiction of the drive to crack down after a random act of sexual violence committed by a stranger, the data also shows that the vast majority of sex offenses are committed by someone known to the victim, such as a family member....

In a series for Slate, we’ll spotlight three areas in which the growth of registries has been unexpected — and, we suggest, unwise.

August 12, 2014 at 08:35 AM | Permalink

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Comments

"Second, it was thought that sex offenses against children were commonly committed by strangers."

This has never been true and it was widely known among researchers and law enforcement back when the laws were enacted.

“the assumption that sex offenders are at high risk of recidivism has always been false and continues to be false,”

The likely reason that the detected recidivism rate is so low is linked to the first: sex offenders offend mostly within families and once detected, lose access to their victims. FWIW, the data also shows that sexual deviance, in terms of interest and fantasy, persist

Posted by: Steve Erickson | Aug 12, 2014 8:51:49 AM

@ Steve Erickson:

The likely reason that the detected recidivism rate is so low is linked to the first: sex offenders offend mostly within families and once detected, lose access to their victims.

Two big problems with your reasoning here. Firstly, sex offenders are a pretty heterogeneous group. Intrafamilial contact offenders are certainly one sub-group of sex offenders, but it's a pretty big tent and yet recidivism is low across the board (even for rapists and same-sex stranger-attracted child molesters, the recidivism rates are lower than for other classes of crime IIRC).

So, in other words, how then do you account for low recidivism amongst non intrafamilial offenders? Additionally, even in cases of intrafamilial offending in the vast majority of cases that I am familiar with the offender does not lose access to their victims indefinitely (nor, indeed, if they were sufficiently motivated to reoffend would they be prohibited from finding new victims).

FWIW, the data also shows that sexual deviance, in terms of interest and fantasy, persist

I'm skeptical of this, and assume like your prior point you're likely referring to a distinct sub-group of sex offenders as opposed to sex offenders as a class. Even still, taken at face value, isn't this proposing that we punish people for their thoughts? Even if we're on board that we should punish people for their thoughts, how does the sex offender registry accomplish that? Sex offenders are a heterogeneous group -- maybe some people have deviant thoughts, but maybe others don't. How does a one-size-fits-all solution make anyone safer or comport with notions of fairness and justice?

Posted by: Guy | Aug 12, 2014 9:27:45 AM

@Guy

I'm not disputing the fact that recidivism rates among sex offenders are low based on available data, although let's admit that it's low *as compared* to most other crimes if we're going to use such terminology.

I'm not sure what your experience is given your anonymous cloak, but as it pertains to children, prosecution often does end an offender's access to victims. Of course, there are always exceptions, but gaining access to children outside of family and friends is no easy task. Of course, I'm using the folk psychological meaning of children here, not the phony Atkins notion that includes teenagers.

As to your last point, I'm at a loss - you are attributing to me arguments I've never made. Indeed, I'm not sure who, if anyone, is seriously arguing for that prescription.

Posted by: Steve Erickson | Aug 12, 2014 11:07:36 AM

Guy,

There are thousands upon thousands of variables, to be sure. One thing that is for sure is that a "one size fits all" solution doesn't make anyone safer, nor does it meet notions of fairness and justice. Additionally, you only get as much justice as you can afford. The cost goes up exponentially when the alleged predator is tried in the court of public opinion.

Steve,

I wonder how many of the 750,000+ on the registry reacted to the shock of arrest, conviction, probation and/or incarceration, especially if they had never been in trouble with the law before the allegations? I, for one, will never allow myself to be alone with a minor child, for any reason, ever again.

Posted by: Oswaldo | Aug 12, 2014 11:09:59 AM

I'm not disputing the fact that recidivism rates among sex offenders are low . . .

Good. I'm glad you're not making that argument or implying otherwise.

I'm not sure what your experience is given your anonymous cloak, but as it pertains to children, prosecution often does end an offender's access to victims.

I'm not sure what your experience is given your anonymous cloak either, "Steve Erickson." Such is the nature of the internet. Such a happy thing it is that our personal experiences don't really matter when discussing data.

Reunification amongst sex offenders and family member victims is not unheard of. Even if an intrafamilial offender is forever separated from his family, though, its not like that "end[s] an offender's access to victims." Children live in society. So do people. So do sex offenders.

The bottom line is simply this: an offender who wants to reoffend will do so, and it doesn't much matter if you put him or her on a list or not. Just because you put someone on a list doesn't mean you don't have access to children, or couldn't get access were one so motivated by their "interest and fantasy." That's why, after all, there are repeat offenders even despite the myriad patchwork of local, state, and federal laws that represent the sex offender registry. The registry is mostly about making people feel safer, not about actually making them safer, at the expense of the human and civil rights of a hugely unpopular group of people who have served their time.

Of course, there are always exceptions, but gaining access to children outside of family and friends is no easy task. Of course, I'm using the folk psychological meaning of children here, not the phony Atkins notion that includes teenagers.

Why do you exclude the "phony Atkins" notion? The law certainly doesn't. The sex offender registry is chock full of people whose crimes involve teenagers, non-contact offenses, inchoate offenses, etc. If you want to talk about stranger, same-sex child molesters and the threat that they represent we can certainly do that, but you also have to recognize that is a discrete and small subset of what the term "sex offender" has come to represent in modern day America.

As to your last point, I'm at a loss - you are attributing to me arguments I've never made. Indeed, I'm not sure who, if anyone, is seriously arguing for that prescription.

You wrote FWIW, the data also shows that sexual deviance, in terms of interest and fantasy, persist. Now, it is true that you did not tack a formal conclusion onto the end of that. Rather, you left dear reader to fill in the blanks. I am making the assumption that you did not include that bit of info at the end of your post for the lulz, but rather as support for your more general argument in approval of the registry.

If that assumption is incorrect, I'd be more than happy to have you correct me. If not, I'd simply restate the questions I asked above. Should we have a thought-crime registry? A deviant fantasy registry? How does that comport with notions of fairness and justice? How does that make anyone safer? I guess technically we already do that in the form of placing non-contact child porn possession offenders onto the sex offender registry because they might be a danger. Then again, they might not.

I'm not saying that the point isn't fair that people who do these sorts of things aren't obviously in need of some kind of treatment, but the powers that be are also notoriously bad at risk prediction and the tendency seems to be to sweep everyone into the dangerous category without consideration for individual factors or the context of the offense.

Posted by: Guy | Aug 12, 2014 12:31:25 PM

@Guy

Just because interfamilial reunification is not unheard of doesn't mean that it's common nor a frequent occurrence. I would think that's rather obvious. Indeed, children are a part of society, no doubt, but getting access to them to commit sex crimes is not easy outside of family and friends. That's the best reason why most victims know the perpetrator.

The Slate article begins with the story of Jacob Wetterling, a young boy, and discusses how registries were born from tragedies such as his. But like everything else these days that deals with age, the lines became blurred as time went on. As you point out, registries now apply to crimes involving teenagers, which the law, likes to call children, but whom are not really childlike. The law shouldn't do this, just like it shouldn't in Atkins cases. It's silly, disingenuous, and furthers the latency of adulthood.

Sexual deviancy is relevant insofar as some may wrongly attribute low recidivism with waning pedophilia over time, rather than the better conclusion of reduced access. To take it further than that is up to you (and as I mentioned, by you alone).

Posted by: Steve Erickson | Aug 12, 2014 1:15:02 PM

@Steve:

Just because interfamilial reunification is not unheard of doesn't mean that it's common nor a frequent occurrence. I would think that's rather obvious. Indeed, children are a part of society, no doubt, but getting access to them to commit sex crimes is not easy outside of family and friends. That's the best reason why most victims know the perpetrator.

Do you have any evidence to support your claim that registration in and of itself limits access to children? If that were the case, why is it that there are sex offenders who reoffend? The research that I am familiar with supports the conclusion that SORNA has negligible effects on sex abuse rates. Your argument sounds like your own personal conjecture, but if you have data I'd be interested in seeing it.

The Slate article begins with the story of Jacob Wetterling, a young boy, and discusses how registries were born from tragedies such as his. But like everything else these days that deals with age, the lines became blurred as time went on. As you point out, registries now apply to crimes involving teenagers, which the law, likes to call children, but whom are not really childlike. The law shouldn't do this, just like it shouldn't in Atkins cases. It's silly, disingenuous, and furthers the latency of adulthood.

I think we're in agreement there. The registry should be for people who are, you know, actually dangerous and not anyone and everyone who has ever broken some kind of sexual more or norm -- which is what it's turned into.


Sexual deviancy is relevant insofar as some may wrongly attribute low recidivism with waning pedophilia over time, rather than the better conclusion of reduced access. To take it further than that is up to you (and as I mentioned, by you alone).

You still haven't answered the questions that I posed, though. Leaving aside the glaring conflations in the reasoning here (e.g., that sexual deviancy != pedophilia, or that someone convicted of a sex offense != pedophile), pedophilia is a mental illness. Are you saying that, on the basis of a diagnosis of pedophilia someone should be registered and have their liberty curtailed? It isn't a difficult question -- at least I don't think it is. How else would the question of "deviancy" be relevant to the question of whether registration is a good thing? If that isn't your argument, then please, tell me what your argument is because I honestly do not understand why you bring up deviancy and fantasies within this context if not for supporting continued registration of said "deviants."

Posted by: Guy | Aug 12, 2014 1:50:20 PM

@ Guy

I need not provide any proof from the assertion that registries limits access to children since I made no such claim. Please reread what I said. Indeed, if you read what I said closely, the value of registries is questionable as it is currently practiced.

Pedophilia is not a mental illness; we have very little evidence that this is the case. Let me ask you this question: What part of the diagnostic criteria gives your confidence that it is a mental illness?

Posted by: Steve Erickson | Aug 12, 2014 6:18:38 PM

Common sense based on truth and stats. Who would have thought.

Posted by: Book | Aug 12, 2014 6:37:21 PM

@Steve

Pedophilia is not a mental illness; we have very little evidence that this is the case. Let me ask you this question: What part of the diagnostic criteria gives your confidence that it is a mental illness?

Well, I am not a psychologist or psychiatrist, so the best way that I can answer this question is to point out that it was in the DSM-IV-TR and continues to be in the DSM-V (albeit renamed pedophilic disorder, with essentially the same diagnostic criteria).

We can get into a meta discussion about what is and what is not a mental illness, or we can take the Szasz route and talk about whether mental illness is actually even a thing. But, for these purposes, the APA considers it to be a mental illness, so if you're contesting whether it should be classified as such I'd guess you would need to take it up with them.

Posted by: Guy | Aug 13, 2014 8:38:43 AM

I was so excited by the first Slate.com installment (August 11th) that I shared it with all the Virginia State and Federal Legislators that evening.

Sadly I found an error in both the second and third installments of the Slate series when it comes to Virginia and so I couldn’t share those articles knowing the lawmakers would also see the errors and then ignore everything else in the series.

In yesterday’s (August 12th) installment the first map of underage consensual sex Virginia is marked as NOT putting people on the registry that is entirely incorrect. In Virginia if a 15 year old and another 15 year old have consensual sex that is not a crime, but just about any other combination of ages would be a crime

Virginia does not have a statutory rape statute. But if a 13 and a 16 year old or a 14 and a 17 year old or a 16 and an 18 year old have ANY consensual sexual conduct the older participant will be charged with one or more of the following crimes, rape, carnal knowledge of a minor, object sexual penetration, crimes against nature (sodomy), taking indecent liberties with a minor, indecent liberties by children, sexual battery and/or sexual assault. ALL registerable offenses if the “victim” is a minor.

As for the second map for public urination. Virginia may not charge that as a crime and put someone on our registry, but it should be noted in the article that IF someone from a state that does register “urinators” moves to Virginia the Commonwealth will not give them amnesty, they will remain a registered sex offender in VA for something that is NOT a crime. Otherwise all the "urinators" required to register would just move to a state that is gray on the map and shed themselves of the public shame.

I know both Alabama and Florida did register public urinators, but the map has them in gray. If either state has changed their laws since the 2008 or 2009 examples that I know of and no longer convicts for public urination that’s great news but there would still be previously convicted offenders stuck on their two registries and others (for those who moved)for pee’ing in public.

In today’s (August 13th) installment the map of minimum registration time for Virginia shows lifetime. That is incorrect. The majority of RSO’s in Virginia is in fact “lifers” BUT 17% of our registry is classified as Non-Violent and they can petition for removal after 15 years and then a very small group of the Violent Offenders (83% of our registry) can petition after 25 years. For more information on petitioning for removal in Virginia go here http://goo.gl/drcQ5y .

If these errors exist for the Virginia data I suspect there are issues within the second and third articles in other states too.

Posted by: Mary Devoy | Aug 13, 2014 1:41:15 PM

"Interfamilial reunification" is how I myself got involved with sex offender issues back in the early nineties. Back then, we just called it "family reintegration," which in this case is a synonym in name. For the most part, treatment involved taking each case on its merits, then establishing parameters for offender, victim, and other family participants. Usually, this involves fathers/daughters, grandfather/grandaughter, or uncle/nieces, with mother involvement, or sibling to sibling offenses, which were surprisingly more complex to deal with than with parental offending. (I never had a case which involved homosexual / same sex or female to male offense.)

The key to our success (our team never had a recidivist) was the combination of assertive actions on the part of the offender and the support people, coupled with trust and boundary issues we helped the victims with. In addition, all treatment was relatively private, mainly because the victims' treatment demanded less public scrutiny. NOTE: At NO TIME was there ever any slack given to the offender due to pre-Internet non-public scrutiny, as we always had their treatment in mind.

Usually, treatment lasted from three to six months of frequent monitoring, along with less frequent followups. This treatment method was used until 1996, when abrubtly the model changed to render more punitive actions to offenders, as well as the segregation, not integration, of offenders and victims even for most offenses in which we've had 100% success.

Now with full Internet disclosure, it is impossible for any real family treatment to be conducted, which is very sad. Invariably, the family is most often forced to break off with mandatory separation between offender and victim, with far more problems that result in upheaval of the inevitable financial and emotional problems that result from THAT. Those problems are just as hard, in many cases, than the actual offense which precipitated everything in the first place, and now create an INCREDIBLE INCENTIVE for offenses to NOT be reported in the first place.

Posted by: Eric Knight | Aug 13, 2014 4:06:46 PM

No surpise here. The feds take the same blanket approach towards this as they do security threats, create a system that doesn't differentiate between true threats and penalize all through restrictions of movement. Also known as the 'Nanny State' approach with the reality that nobody is really any safer in the long run with the cost being tremendous taxpayer expense.

Posted by: ed | Aug 13, 2014 7:28:12 PM

Sex offender registries are stupid. None would have saved the little girls after which two laws were named. 123D would have, starting that count at the age of adulthood, 14. The dumbass lawyer protected the life of the serial child rapists and murderers. The the dumbass lawyer comes up with a worthless remedy, paperwork.

The stupidity of the dumbass lawyer appears to have a bias, and is not random in direction. It always heads toward more government make work jobs.

Posted by: Supremacy Claus | Aug 14, 2014 7:10:06 AM

Ed. Obviously not a dumbass lawyer.

Excellent insight.

Posted by: Supremacy Claus | Aug 14, 2014 7:13:12 AM

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