[Note: This is Part 1 of a two-part post about sex offender registries. Part 1 discusses how non-pedophiles end up on a registry intended for pedophiles. Part 2 discusses the complications of the registry itself.]
The premise of sex offender registry laws is sound: protect our children from sexual predators. After they serve their time, the criminal must report his or her address, be barred from living near places where children congregate, and register with the state they reside in. We can all agree this is just, especially in comparison to the crime they committed. But what happens when the definition of "sex offender" is stretched beyond its original intent - so far that it damages the lives not just of persons whose crimes are completely unrelated to children, but of children themselves?
Most adults would agree, for example, that sexting, (sending naked or near-naked photographs of each other over their cell phones), especially among teenagers, is incredibly stupid. One naughty photograph could have (and has) been sent out to the entire Internet, which is known for soaking up nude photos like a hyperactive sponge. Yet teenagers, being teenagers, don't always understand this: indeed, a survey put out by the National Campaign to Prevent Teen and Unplanned Pregnancy found that one out of every five teenagers admitted posting or sending nude or semi-nude photos of themselves. But does this stupidity, although admittedly illegal, merit the punishment that would normally await the provider and creator of child pornography?
In February two kids, a 13-year-old girl and a 12-year-old boy, were charged with child exploitation and possession
of child pornography for "sexting." If the
charges were pursued and the two found guilty, they would be required to
register as sex offenders. Under Indiana law, they would remain on the
registry for ten years.
Sexting teenagers are not the only ones in the country whose misdeeds could place them on the same list as pedophiles: many convicted prostitutes in New Orleans must register as sex offenders, based on an over 200-year-old law banning "unnatural copulation," that is, anything other than genital/genital sex. In 29 states, teenagers can likewise be forced to register as sex offenders for having consensual sex with their partners. Indecent exposure can get one on the sex offender registry, which makes sense, but some states like Arizona and Delaware have such a broad interpretation of what constitutes "indecent exposure" that it can include non-sexual acts as mooning or public urination.
Then there is the story of Janet Allison. Ms. Allison did not actually have illicit sex with anybody. In 2000, the Georgia mother of five allowed her pregnant 15-year-old daughter's 17-year-old boyfriend to stay at her abode for a short time. When an underage sex act occurred in her home, it led to a conviction against Ms. Allison on charges of being an accomplice to statutory rape and child molestation. As part of the conviction, she had to register as a sex offender. Because she was a convicted sex offender, her other children were moved to foster care. She was later forced to move when a law was passed in the state banning sex offenders from residing or working within 1000 feet of a church (which in Georgia is nearly impossible) and she was barred from seeing her daughter or her grandson.
Whether or not one agrees about the criminality (or morality) of prostitution, statutory rape, or even sexting, what is true is that these acts are illegal within the vast majority - if not all - of the nation. Those who commit illegal acts should accept the consequences of said acts. However, to punish these persons further by placing them in the same category as those who prey upon children is more than a grave injustice: it equalizes both the crimes and the status of the criminals in question.
The cost of ending up on a sex offender registry, deserved or not, is steep. In Illinois - my home state - for example, sex offenders on the registry cannot reside nearer than 500 feet from a school, nor can they loiter near playgrounds. They cannot use any social networking programs such as Facebook or MySpace. They
cannot volunteer or work with youth groups. Sex offenders here cannot use computer "scrub" software to wipe out their internet histories. They cannot drive ice cream trucks or rescue vehicles such as ambulances. And as in all states, Illinois sex offenders must register with the state (in Illinois, for ten years), and the registry is accessible to anyone on the Internet.
To punish a pedophile like this is certainly logical - and just - but what of a former
prostitute trying to rebuild her life, or two high school seniors a shade under eighteen whose hormones got the better of them? To punish these people for ten years is not an attack on sexual predators or sex crimes: it's an attack on sex, pure and simple.
This was not the original intent of the sex offender registry. In 1947, California was the first state to require convicted sex offenders to register with state police when their prison sentence was complete. Since the aim of the registry was solely to assist law enforcement, access to the registry was limited to the police. In 1994, seven-year-old Megan Kanka was raped and murdered by a convicted child molester who lived across the street from the girl. That same year, New Jersey (where Megan was killed) passed the first Megan's Law, requiring law enforcement to open their sex offender registries to the public. Subsequent legislation required sex offenders to inform law enforcement of address and employment changes. Within two years, most states and the federal government followed suit. Although the aim of the legislation was protect communities from pedophiles, the question of who constitutes a "sex offender" was determined by states, whose definitions vary widely.
Prostitutes, as a group, do not prey upon children. They do not sexually assault children, or record the assaults and place them on the Internet. Nor, as a group, do those who procure sex from adult prostitutes. One can debate the morality of prostitution until the end of time, but it cannot be directly connected to crimes against children unless the prostitutes (or johns) in question are children. If a 16-year-old boy and his 15-year-old girlfriend sleep with each other, we can convict them of lack of common sense, or plain stupidity, and we can even punish them legally. But are those kids the equal of Thomas James Leggs Jr., a registered sex offender indicted for assault and murder of an 11-year old girl? Should Janet Allison inhabit the same list as Jeremy J. Williams, convicted last month of accessing a child pornography network over 500 times and chatting online with who he thought was a 13-year-old? To lump fornicating teenagers and prostitutes in the same registry as child rapists brutally brands the former and cheapens the crimes of the latter.
We should have laws restricting pedophiles, even beyond their prison sentences. However, we must be careful not to catch in our nets those who pose no danger to children. A person who commits rape against an adult, for example, has certainly committed a sex crime, but is he necessarily a risk to children? A 17-year-old boy who has sex with a 15-year-old girl should only be considered a risk to other children if the act was coercive. (Some would question the wisdom of placing a minor on the registry regardless of the crime; Texas includes on its sex offender registry a 10-year-old boy.) The child sex offender registry, in my opinion, should be limited to those persons who:
- commit a crime of coercive sexual assault upon a minor.
- record said crimes, or who purchase, sell, or otherwise transfer said recordings, particularly of victims under the age of 18.
- pretty much every crime on this list.
Federal law helped the process along with the passage of the Adam Walsh Child Protection and Safety Act of 2006, splitting sex offenders into three tiers. Tier III offenders, the most dangerous of sex offenders, must remain on the register for life (unless he or she is a minor), while Tier II offenders must register for 25 years and Tier I offenders, fifteen years. However, the law has come under considerable scrutiny. Other than questions concerning the constitutionality of some of the law (which others with far more legal expertise than I have already covered), the federal
law does not resolve the problem of non-pedophilia sex offenders. Under Section 111 of the law, a sex offender is defined only as "an individual convicted of a sex offense." Moreover, unlike Tiers II and III, both of which include clearly-defined sex crimes against children, a Tier I sex offender is defined merely as "other than a Tier II or Tier III sex offender." This vague definition does little to eliminate from the registries those whose crimes are unconnected to children.
What Congress should do is clarify the law: define Tier I sex offenders as those whose illegal acts endangered children, sifting out all others. The result should reduce the size of the registries, eliminating those persons not a risk to children. This would also make the registries more manageable (and less expensive) for state law enforcement.
Some states are beginning to fix this problem on their own. Several states, including Illinois, Indiana, and Kentucky, are currently attempting to decriminalize (or least lessen the potential penalties of) teenagers sexting each other. Violators could still be punished with fines or community service, but they would be spared the sex offender registry. This is a step in the right direction, but states need to do more to separate those who prey on children from those who did not, or who are children themselves.
