Sex offenders: How should the legal system deal with them?
Dealing with the problem of sex offenders is one of the most serious and emotional issues any criminal justice professional can confront. Even otherwise rational people often become irrational when the subject of sexual abuse arises. This fear that sex offenders could be anywhere and everywhere is terrifying for parents and the public at large. The idea that a sex offender could be released into the community is so abhorrent for many it has led to calls for additional legislation to limit sex offenders' movements and whereabouts long after they have served their time in jail. "One of the most hotly-debated issues in criminal law today is how to manage the perceived risk of sex offenders loose in the community. Beyond mandatory registration and community notification, over a dozen states, including Illinois, have enacted residency restrictions that forbid sex offenders from living within a certain distance of schools, parks, day care centers, or even 'places where children normally congregate'" (Durling 2006).
Even criminal justice professionals admit that profiling likely sexual criminals is difficult. "Sex offenders are heterogeneous in personality and behavioral characteristics" (Shealy et al. 1991). A study of 90 men using the Minnesota Multiphasic Personality Inventory (MMPI) found that "while two subgroups presented mean profiles within normal limits, the patterns indicated differences in personality functioning: one presenting signs of sociopathy and the other emotional disturbance. In contrast, the other two profile subgroups presented several scale elevations: One subgroup indicated anger and aggression and the other severe psychopathology" (Shealy et al. 1991). Profiling defies easy characterization. Additionally, crimes considered 'sexual' run a wide gamut, spanning from pedophilia and rape to consensual sexual activity such as statutory rape, which is when an adult engages in consensual sexual activity with a minor, even though the minor too young to give his or her consent.
Residency restrictions and laws which publically list the names of convicted sexual predators in the community are often called 'Megan's Laws,' after a young child who was killed by a two-time sex offender that residents did not know was living amongst them. "Megan's Laws, also known as sex offender registration acts (SORAs), require offenders to register promptly when they are released from prison, and also mandate that sex offenders convicted in the past now register themselves with their local police department" (Durling 2006). Although the laws vary by state, they are effectively mandatory, given that federal law makes 10% of all federal law enforcement aid to states contingent upon having an acceptable sex offender registration law (Durling 2006).
Lists that make the names of sex offenders public have frequently resulted in violence against the offenders and the convicted offenders becoming sexual pariahs wearing a kind of 'Scarlet Letter.' "A sex offender in California who completed the state sex offender treatment program and then underwent voluntary castration while in prison was still turned down by at least 120 rehabilitation facilities upon release, and neighbors refused to allow him to move in with his father in the State of Washington" (Durling 2006). Although there have been calls for greater leniency for some crimes, such as drug crimes and crimes committed by juveniles, for sexually-related crimes, there is little sympathy and judges have been able to 'get away' with passing down extremely harsh sentences, even for relatively minor sexual crimes. For example, a "federal district court judge in Arizona was twice overruled by the Ninth Circuit for imposing rigorous probation restrictions on a man facing marijuana charges who had been convicted fifteen years earlier of sexual contact with a teenage female," on a charge of statutory rape (meaning that the sex was consensual even though the girl was under age). In another instance,
"a twelve-year-old boy in Illinois was permanently banished (along with his family) from his community, and made to register as a sex offender for the rest of his life, a shockingly harsh sentence handed out by a juvenile court and upheld by the state's supreme court" (Durling 2006).
Critics of these laws state that they are based upon faulty assumptions, first and foremost of which is that sexual offenders primarily target children who are strangers. In fact, a child is far more likely to be assaulted by an adult he or she knows well. "80% of abused girls and 60% of abused boys are harmed by people that they know, either a friend or a family member" (Durling 2006). The idea that not being near children in a 'temptingly' close area is also not borne out by scientific evidence. "Studies have not shown a correlation between a sex offender's "residence ['s] distance from a school or child care facility, and an increased likelihood of recidivism" (Durling 2006). Proponents of the laws counter that they make it easier to 'keep track' of offenders and ensure that they do not obtain; opponents counter that the laws merely give a false sense of security: a scoutmaster, priest, teacher or relative is statistically more likely to be an abuser than a shadowy man in a raincoat sitting on a park bench.
The commonly-cited idea that sex offenders have higher rates of recidivism than other types of offenders is not supported by actual data. A 2003 Department of Justice (DOJ) study found that of the sex offenders and rapists released from prison in 1994, only 14% were recidivists while 39% of released sex offenders were rearrested within three years "half of those arrests were for 'public order offenses' like parole violations or traffic infractions" (in other words for violating the restrictions put upon them by Megan's laws, rather than actual sexual crimes themselves) (Durling 2006). Rates of recidivism of sexual criminals are actually lower than for other types of crimes.
"Some critics have responded by arguing that stated sex offender recidivism rates are artificially low because sex crimes are underreported, especially within families… but the level of underreporting would have to be quite high for sex crimes to make up the current gap between sex offenders and other criminals" (Durling 2006). And once again, residency restrictions would do little to prevent recidivism in such instances. In fact, the evidence suggest that recidivism is lowest when criminals on parole can find stable jobs and places to live, and become integrated into support structures such as Alcoholics Anonymous. The limits of residency restrictions forces sex offenders to live far away from most central areas of town, given that is where schools are located. "These 'reasonable' residency restrictions most harshly affect low-income offenders, who return to society ostracized and without resources, such as a car, after spending several years in prison. As these isolated offenders live far from work opportunities and without the means to get there, scholars have concluded that they become even more marginalized and less integrated into society" (During 2006).
As well as ineffective, residency restrictions place additional burdens on communities. The first is the expense. "Wisconsin considered enacting a residency restriction law, but concluded it would have cost at least $17 million to create sufficient housing for displaced sex offenders in rural areas outside restricted zones" (Durling 2006). When known sex offenders live within a particular community's borders, the property values of all residents are impacted. Thus, the entire community is punished for an act it did not commit, not simply the offender. Also, when a known offender is present, the community can make life very difficult for him or her, creating an uncomfortable, polarized environment.
Another troubling aspect of the laws is their constitutionality. The laws have been allegedly put in place to protect the community, not as retribution after sentencing. The U.S. Supreme Court has not officially passed judgment on residency laws, although it has upheld the first Megan's Laws requiring public notification by a narrow majority (Totenberg 2003). The…