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Thursday, February 25, 2016

International Megan’s Law: Bad Public Policy



Update: 

Judge tosses out challenge to sex offender passport law, April 13, 2016
 

Original Post:

International Megan’s Law: Bad Public Policy, February 25, 2016

On Monday, February 8, 2016, President Obama signed HF 515, and it became Public Law 114-119, known casually as “International Megan’s Law” (IML).  The very next day, Janice Bellucci, a civil rights attorney and President of CA-RSOL, filed a legal challenge in Federal Courts in California, citing constitutional violations of the First and Fifth Amendments, and the Ex Post Facto Clause.  After careful review of the intent and apparent effect of this new Public Law, and the arguments raised in the legal challenge, it seems IML is not only unwarranted, but establishes a dangerous precedent.      
 

The stated intent of IML is:  “To protect children and others from sexual abuse and exploitation, including sex trafficking and sex tourism, by providing advance notice of intended travel by registered sex offenders outside the United States to the government of the country of destination, requesting foreign governments to notify the Unites States when a known sex offender is seeking to enter the United States, and for other purposes.”  It seems the intent of IML was honorable enough for Congress to support it and the President to sign it, but lawmakers might have been unaware of the real consequences.   

IML extends the work of Operation Angel Watch, functioning for several years to monitor child sex trafficking and tourism between the US and foreign countries.  With the US Marshal’s Service and international coordination, Operation Angel Watch has facilitated numerous international arrests for child sexual abuse.  With evidence lacking that the 840,000 current US registered sex offenders are engaged in an international child sex trade, IML has turned the noble intentions of Operation Angel Watch into a blacklist for US registered sex offenders.   

IML creates the Angel Watch Center within the US Department of Homeland Security (ICE-CEIU).  Teamed with the US Marshal’s Service National Sex Offender Targeting Center (NSOTC) as its investigative and enforcement partner, the Angel Watch Center will become something of a clearinghouse for both US citizens and foreign nationals who have sex offenses, and are traveling in or out of the US.  IML creates the authority for Angel Watch Center and NSOTC to share information with the US Department of Justice (Federal law enforcement), the US State Department (controls passports), INTERPOL, and foreign governments regarding registration and international travel of US citizens who, under IML, meet various equivocal definitions of “sex offender.” (IML, Sec. 6) 

IML requires notification of international travel for most US sexual offenders, regardless of whether they are currently on a sex offender registry (inconsistent with the stated intent).  Perhaps the most disturbing provision for IML is for registered sex offenders who have an offense involving a minor: if those offenders have a passport, it will be revoked. (IML, Sec. 8)  If a member of that group applies for a new passport, it will be issued with a yet to be determined “unique passport identifier” – seemingly to alert authorities that the bearer is not just a sex offender but, at least by implication, at risk for molesting children. 

When a covered registrant plans to travel outside the US, destination countries and INTERPOL will be notified.  IML does not provide for registrants to know what information has been collected and shared between federal agencies or conveyed to foreign governments.  Registrants might mistakenly believe notification results in being “cleared” to travel, and be surprised to find their travel plans suddenly interrupted.  Whether traveling for business or pleasure, disruptions are likely to be unnecessarily embarrassing and economically damaging.  (Challenge, p. 16-20)   Inconvenience is just the beginning.   

Violations of IML have severe penalties.  When a registrant applies for a passport, they will be required to disclose their registration status. (IML, Sec. 8 (e))  A registrant who knowingly fails to provide information required for international travel, and engages or attempts to engage in the intended travel, in violation of IML, is subject to fines and/or imprisonment for up to ten years. (IML, Sec. 6, (b))   

When the US has never before flagged passports for dangerousness, will the world think that US authorities are overreacting?  Or believe targeted offenders really ARE dangerous?  Registrants should be prepared to be questioned by customs when leaving the US and by enforcement authorities in every destination country.  Depending on how passports are marked, registrants may have problems boarding airplanes, renting cars, or checking into hotels.  If a registrant is traveling with minor children, they should expect to be stopped and questioned by foreign authorities, as intended - the Angel Watch Center will have alerted international authorities that a known sex offender might be engaged in child sex trafficking.  Can foreign authorities ignore such dire warnings? 

Travel disruptions might not be the worst outcome for registrants traveling abroad.  Even if passports are marked in a manner only intended for enforcement authorities, it is not just third world countries where local law enforcement might not be professionally respectful of identified ‘child molesters.’  Bellucci cites a dozen cases of registrants in the US who were injured or murdered when vigilantes discovered their status.  Bellucci argues that registrants identified as sex offenders, regardless of how discretely passports are marked, puts registrants and their traveling companions in grave danger. (Challenge, p. 13-16)   

Failure-to-register (FTR) violations are frequent in the US – perhaps more likely the result of carelessness than deliberate willfulness.  If offenders don’t comply with every requirement of IML, it would seem that, on a single trip abroad, a traveling registrant could have multiple opportunities for felony violations of IML.  Each potential violation could be cause for international authorities to arrest, detain, and charge registrants.  With the possibility of prison time, in the US or in a foreign country, some registrants might be intimidated into a plea agreement; others will just be grateful to get back home.   

Because most US registered sex offenders are already closely monitored, it is unlikely that IML will have much effect on its stated goal of protecting children from international sexual predators, but IML very likely will be counterproductive for the vast majority of offenders who are truly in recovery.  Some registrants might decide that a stigmatizing passport and onerous travel requirements carry too much personal risk, and choose to forego international travel. 

On February 9, 2016, for the first time in US history, the US government ordered passports for an underclass of US citizens to bear a “unique passport identifier.” (Challenge, p. 2)   But it’s not the first time in world history that citizens have been stripped of civil rights based only on status.   On October 5, 1938, the German government invalidated all passports for Jewish citizens and ordered a unique passport identifier: a “J”.  It was 74 years ago that Executive Order 9066 authorized the unwarranted but popular roundup of Japanese Americans during WWII.  

Lest anyone thinks relating sex offenders in the US to Japanese Americans or Jews in Nazi Germany seems like an ugly comparison or overreaction, that is exactly the point…  If Japanese Americans and Jewish citizens can be stripped of citizenship rights by their own governments, under the pretense of public safety or national security, we should not overlook the possibility that fear, anger, hate, and misinformation could lead to a similar fate for other unpopular minorities in the 21st Century.  IML results in the unwarranted suspension of civil rights - not for punishment or veritable dangerousness, or through due process, case by case, in the criminal justice system, but simply by status through civil law.   

Concerns about the effects of IML should not be misconstrued as indifference to child sex trafficking.  IML misrepresents a valid public concern regarding sexual violence, and launches an unprecedented attack on the civil rights of US citizens.  Proponents of this sweeping, misguided law, have overstated both offender risks and public benefits.  IML is contrary to credible research that should guide informed public policies.  With more than 95% of sexual offenses committed by first-time offenders, broadly targeting known sexual offenders detracts from effective prevention efforts.   

The “war on drugs” and the “war on terrorism” demonstrably have international roots, yet Americans who have been identified for risk of drug trafficking or acts of terrorism don’t have marked passports.  The valiant war against sexual abuse has shifted to a popular war against sexual offenders.  In a country founded on constitutional principles of civil liberties, we don’t have to choose between zealously protecting children and avidly guarding the civil rights of all our citizens.  We can be advocates for both.    

Jon Brandt, MSW, LICSW