If history is any indication of the future, then no, sex offenders won't be the last.
08/20/2011
By ROGER N. LANCASTER
FAIRFAX - Starting in the 1970s, lawmakers across the United States enacted punitive “lock ’em up” policies. The prison population more than quadrupled, and the United States became first in the world in both the total number of prisoners (about 2.3 million) and the rate of imprisonment (1 of every 100 adults is behind bars).
Now, budget pressures, court orders and a recognition of the social costs of incarceration have prompted America to reconsider some of these draconian laws. Incarceration rates may be topping out.
But most criminal justice advocates have been reluctant to talk about sex offender laws, much less reform them. The reluctance has deep roots. Sex crimes are seen as uniquely horrific. During the Colonial, antebellum and Jim Crow eras, white Americans were preoccupied with tales of sexual dangers to white women and children. McCarthy-era paranoia, stories of Satanic ritual abuse and other sex panics stirred pervasive anxieties about lurking strangers. Sexual predators play a lead role in the production of a modern culture of fear (See Also: Mass Hysteria, Moral Panic).
In fact, the crimes that most spur public outrage — the abduction, rape and murder of children — are exceedingly rare. Statistically, a child’s risk of being killed by a sexual predator who is a stranger is comparable to the chance of being struck by lightning. The reported incidence of most forms of child abduction, including the most serious, has declined since the 1980s.
The most intense dread, fueled by shows like “America’s Most Wanted” and “To Catch a Predator,” is directed at the lurking stranger, the anonymous repeat offender. But most perpetrators of sexual abuse are family members, close relatives, or friends or acquaintances of the victim’s family. In 70 to 80 percent of child deaths resulting from abuse or neglect, a parent is held responsible.
No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so.
A 1994 federal law named for Jacob Wetterling, an 11-year-old Minnesota boy who was abducted, requires convicted sex offenders to register with authorities. Under an amendment to that act, all states adopted statutes collectively known as Megan’s Law — named for a 7-year-old girl who was raped and murdered in New Jersey in 1994 — that require local law enforcement authorities to notify neighbors about a sex offender’s presence in their community. And although registration and notification requirements vary, all states now post searchable online lists of at least some categories of registered sex offenders.
Advocates for laws to register, publicize and monitor sex offenders after their release from custody typically assert that those convicted of sex crimes pose a high risk of sex crime recidivism. But studies by the Justice Department and other organizations show that recidivism rates are significantly lower for convicted sex offenders than for burglars, robbers, thieves, drug offenders and other convicts.
Only a tiny proportion of sex crimes are committed by repeat offenders, which suggests that current laws are misdirected and ineffective. Indeed, a federally financed study of New Jersey’s registration and notification procedures found that sex offense rates were already falling before the implementation of Megan’s Law. The study also found no discernible impact on recidivism and concluded that the growing costs of the program might not be justifiable.
Contrary to the common belief that burgeoning registries provide lists of child molesters, the victim need not have been a child and the perpetrator need not have been an adult. Child abusers may be minors themselves. Statutory rapists — a loose category that includes some offenses involving neither coercion nor violence — are covered in some states. Some states require exhibitionists and “peeping Toms” to register; Louisiana compelled some prostitutes to do so. Two-thirds of the North Carolina registrants sampled in a 2007 study by Human Rights Watch had been convicted of the nonviolent crime of “indecent liberties with a minor,” which does not necessarily involve physical contact.
Culpability and harm vary greatly in these offenses. Some would not be classified as criminal under European laws, which set lower ages of consent than do American laws. And because sex crimes are broadly defined and closely monitored, the number of people listed in public sex offender registries is growing rapidly: 740,000 at latest count, more than the population of Boston or Seattle. The registration and notification rules — the result of efforts by victims’ rights advocates, crusading journalists and tough-on-crime politicians — violate basic legal principles and amount to an excessive and enduring form of punishment.
Newer laws go even further. At last count, 44 states have passed or are considering laws that would require some sex offenders to be monitored for life with electronic bracelets and global positioning devices. A 2006 federal law, the Adam Walsh Act, named for a Florida boy who was abducted and killed, allows prosecutors to apply tougher registration rules retroactively. New civil commitment procedures allow for the indefinite detention of sex offenders after the completion of their sentences. Such procedures suggest a catch-22: the accused is deemed mentally fit for trial and sentencing, but mentally unfit for release.
Laws in more than 20 states and hundreds of municipalities restrict where a sex offender can live, work or walk. California’s Proposition 83 (PDF) prohibits all registered sex offenders (felony and misdemeanor alike) from living within 2,000 feet of a school or park, effectively evicting them from the state’s cities and scattering them to isolated rural areas.
Digital scarlet letters, electronic tethering and practices of banishment have relegated a growing number of people to the logic of “social death,” a term introduced by the sociologist Orlando Patterson, in the context of slavery, to describe permanent dishonor and exclusion from the wider moral community. The creation of a pariah class of unemployable, uprooted criminal outcasts has drawn attention from human rights activists; even The Economist has decried our sex offender laws as harsh and ineffective.
This should worry us, in part because the techniques used for marking, shaming and controlling sex offenders have come to serve as models for laws and practices in other domains. Several states currently publish online listings of methamphetamine offenders, and other states are considering public registries for assorted crimes. Mimicking Megan’s Law, Florida maintains a Web site that gives the personal details (including photo, name, age, address, offenses and periods of incarceration) of all prisoners released from custody. Some other states post similar public listings of paroled or recently released ex-convicts. It goes without saying that such procedures cut against rehabilitation and reintegration.
- They don't want either, they want to continue the merry-go-round, so ex-criminals continue to help the prison business.
Our sex offender laws are expansive, costly and ineffective — guided by panic, not reason. It is time to change the conversation: to promote child welfare based on sound data rather than statistically anomalous horror stories, and in some cases to revisit outdated laws that do little to protect children. Little will have been gained if we trade a bloated prison system for sprawling forms of electronic surveillance that offload the costs of imprisonment onto offenders, their families and their communities.
Roger N. Lancaster is a professor of anthropology and director of the cultural studies program at George Mason University, and the author of “Sex Panic and the Punitive State
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