Sexual offender legislation and policy frameworks

Criminal Justice

Sexual Offender Legislation

Sex Offender laws have encountered constitutional challenges for as long as they have been around. They have withstood these challenges on the idea that sex offender laws are civil or regulatory in nature and not criminal or punitive. Criminal laws are regulated by the U.S. Constitution while civil laws are not. It is believed that legislators have successfully circumvented the Constitution by declaring sex offender laws civil in nature (How Sex Offender Laws Circumvent the Constitution: Civil / Regulatory vs. Criminal / Punitive, 2007).

When looking at this argument it is important to remember that laws are punitive in regards to the nature of the effects that they have on offenders. Residency restrictions are regarded as civil sanctions, but even a civil sanction can be considered a punishment if the sanction cannot be said to serve a remedial purpose (How Sex Offender Laws Circumvent the Constitution: Civil / Regulatory vs. Criminal / Punitive, 2007).

Sex offender laws can be classified into three categories: residency restrictions, community notification and registration. Although these laws are endorsed as ways to protect children, they typically apply to anyone who has committed any kind of sex-related offense and can include teenagers having consensual sex, streakers and others committing nonviolent crimes. Those convicted as juveniles are also subject to these same laws. There's a lot of evidence to suggest that these laws don't protect children and may even increase the risk by aggravating the factors that lead people to re-offend (Fellner, 2007).

In looking at the residency restrictions, it is important to look at Jessica's Law. This law says that sex offenders that are released from prison are forbidden from living within 2,000 feet of any school or park. Given the amount of schools and parks in many areas, the residency restriction effectively banishes them for life from living in many cities and towns, often far from their homes, families, jobs and treatment. This makes it almost impossible for offenders to return to society successfully. It also makes supervision by the police very difficult. Studies have shown that found that residential proximity has little effect on the choice of victim, repeat offenders usually know their victims through social and familial relationships (Fellner, 2007).

Online registries, which are very popular with the public, have been found to not be very effective. They can be accessed by anyone with an Internet connection and contain many personal details of offenders. The registries identify the law under which an offender is convicted, but the language that is used, doesn't give the average person a clue as to the actual offense, or whether an offender remains dangerous. It is one thing to ensure that parents know if someone who poses a threat moves in and quite another to let anyone browse the registries, regardless of any need to know. Opponents feel that registries are not necessary because police have the authority to notify neighbors. Those in favor of registries are not able to point to evidence that the registries have reduced sexual violence. But there is ample evidence, as documented in our recent report that unfettered access to registries can and does lead to extensive harassment and sometimes violence against former offenders (Fellner, 2007).

Highly publicized cases that deal with the abduction, rape, abuse, and murder of young children have led federal and state governments to introduce new laws that require stricter punishments, requirements, and prohibitions for sex offenders. Increasingly rigorous and over-inclusive necessities for sex offenders are almost unanimously accepted and easy for legislators and politicians to support because they are popular among the general public. As Congress passes law after law cracking down on sex offenders, experts and officials question whether the requirements of those acts even work to achieve the goals of legislators (Farley, 2008).

The most recent act, the Adam Walsh Act (AWA), raises many questions as Congress again expands punishments and requirements of sex offenders. The AWA contains over-inclusive sex offender registration requirements and punishment. The AWA is an unfunded order that overly burdens the state governments and places severe and unfair requirements and punishments on sex offenders. In addition, the AWA does not differentiate between violent and non-violent crimes when determining whether an offender must register as a sex offender. This ends up stigmatizing many non-violent offenders who are unlikely to recidivate but are required to register (Farley, 2008).