two parts to any criminal sentence for any crime involving sex.
the standard sentence: prison time or probation. As soon as the first sentence
ends, the second one begins.
getting released from prison, an ex-offender has to sign up for his state’s sex
offender registry. If he moves to another state, he’ll have to sign up there
too. Depending on the state and the seriousness of the crime, his name,
picture, and information will be publicly listed for all to see — permanently.
seem like an appropriate punishment for someone like Brock Turner, who received
only a few months in prison for
sexually assaulting an unconscious woman earlier this year.
sex offender registry wasn't designed to punish people like Brock Turner. It
wasn’t designed to punish people at all.
registry was designed for "sexual predators" who repeatedly preyed on
children (at least according to the fears of 1990s policymakers). The purpose
was supposed to be not punishment but prevention. The theory: Sexual
predators" were unable or unwilling to control their urges, and the
government could not do enough to keep them away from children, so the job of
avoiding "sexual predators" needed to fall to parents.
words, it’s a 1990s tool with a 1990s sensibility. If criminals can’t control
their criminal urges, law-abiding citizens must modify their own behavior to
years later, the focus on sex crimes has shifted from sexual abuse of children
to sexual assault and rape. The idea that criminals can’t control their
behavior has been replaced by attention to the cultural and institutional
failures that allow rapes to happen and go unpunished; the idea that it’s up to
potential victims to change their behavior is usually criticized as victim
sex offender registry is still going strong.
worked as a preventive tool. Instead, it's caught up thousands of people in a
tightly woven net of legal sanctions and social stigma. Registered sex
offenders are constrained by where, with whom, and how they can live — then
further constrained by harassment or shunning from neighbors and prejudice from
the people on the sex offender registry have had their lives ruined for
relatively minor or harmless offenses; for example, a statutory rape case in
which the victim is a high school grade younger than the offender.
are people like Brock Turner — people who have committed serious crimes that
are nonetheless very different from the ones the registry was supposed to
prevent, and which the registry might, in fact, make harder to fight.
happens often in the criminal justice system: Something designed for one
purpose ends up getting used for something else. As usual, it happened because
people can't agree on what society wants to do with criminals to begin with.
point of the sex offender registry to punish people for what they've done? Or
is it to ensure that they don't do it again?
Sex offender registries
were designed to protect children from pathological "sexual
sex offender registries — the Jacob Wetterling Act and Megan's Law of the
1990s, and the Adam Walsh Act of 2006 — are all named after children who were
victims of violent crimes. Adam Walsh and Megan Kanka were both raped and
murdered by adult men; Jacob Wetterling was abducted and has never been found.
were exactly the scenarios the registries were supposed to prevent, by allowing
not only law enforcement but parents and others to know if any sex offenders
lived or worked nearby.
lot of other "seemed like a good idea at the time" tough-on-crime
laws, the sex offender regime was built in the 1990s under President Bill
Clinton (who signed Megan's Law in 1996). And just as other tough-on-crime laws
relied on stereotypes like the "child superpredator," laws like
Megan's Law were designed to contain a stereotypical "sexual
"predator" panic had been raging since the early 1980s, when several
communities around the US
got caught up in allegations of widespread child molestation at schools, often
after children "recovered" supposedly repressed memories. (Richard
Beck's 2015 book We Believe the Children is a very good
critical history of this period, if you're interested.) It thrived on the
anxieties of middle-class, suburban parents — who didn't live in high-crime
areas themselves (even during the height of the late-20th-century crime wave)
but still didn't exactly feel safe.
to the stereotype, sexual predators preyed exclusively and deliberately on
children — and, most importantly, they were pathological about it.
offenders are different," Sen. Chuck Schumer (D-NY) said during the congressional debate over Megan's Law.
"No matter what we do, the minute they get back on the restless and unrelenting
prowl for children, innocent children, to molest, abuse, and in the worst
cases, to kill."
lawmakers' eyes, sex offenders could not be reformed. The only thing the
government could do was help the public protect itself from them — depriving
them the opportunity to commit future crimes.
Registries are not
designed for rapists
worth noting that most sex offenses are still committed against minors(though
that's partly because there are more crimes involving minors that count as sex
offenses). But the definition of "sex offender," both legally and
popularly, covers not just people who victimize children but a wide degree of
crimes involving sex — including sexual assault and rape.
of what kind of sex offense is committed, though, all the perpetrators end up
on the same list.
the activists who inspired registry laws to begin with, like Nancy Wetterling
(the mother of Jacob Wetterling), have since turned against them. Those
advocates say they never intended for the registry to expand so far beyond
child molesters — and that they certainly didn’t intend for so many people to
be registered for having consensual sex as teenagers, or for pulling down their
siblings’ pants as children.
everyone who’s been caught up in the sex offender registry has committed a
nonviolent or minor crime. Some of them are people like Turner — whose crime is
arguably seen as more heinous to the public (or at least some members of the
public) than it might have been when Megan's Law was passed 20 years ago.
not think it's exactly tragic that Turner will end up suffering from unintended
consequences because he's on the registry. That doesn't change the fact that
the policy was designed for a totally different kind of case: Preventing a
rapist from living near an elementary school doesn’t prevent him from
committing another rape. Nor does preventing him from working as a hearing aid
backbone of sex offender registries — the fact that they're publicly available
for community notification — makes sense in the context of serial child
molestation, but not in the context of serial rape. Knowing what sort of adults
live next door might help you protect your kid from getting kidnapped. But you
can't Google your way to safety if — as Brock Turner's victim didn't — you
don't know your assailant's name.
way for law enforcement to monitor people after they’ve returned from prison,
with individualized attention (and different conditions) for each individual
case. It’s called parole — and more than 850,000 Americans were on it in 2014.
someone from reoffending depends on what he's done and who he is. A
one-size-fits-all registry makes that impossible.
Being a registered
sex offender often means the public has a right to know who you are and where
state (as required by federal law) keeps a database of people living in the
state who've been convicted of sex offenses. Every state puts at least some of
that database online for the public to check.
vary in terms of how many sex offenders are publicly listed and how much
information is provided. In California,
for example, someone who's committed "assault with intent to rape"
(like Brock Turner) gets his name, picture, and the town where he's living
listed on the site, but not his address or workplace. (Sex offenders convicted
of more serious crimes in California,
however, do get their addresses listed.)
states and cities, police officers are allowed or required to notify the
neighbors whenever a sex offender moves into the neighborhood. When they
aren't, neighbors often step in to do the job — and, often, encourage the
person to move elsewhere. (It's theoretically illegal to use the sex offender
registry to discriminate against sex offenders in things like housing or jobs,
but there's an exception if you're protecting the safety of a "person at
risk.") Offenders are also required to change their registration within a
few days of moving elsewhere or changing jobs.
federal Adam Walsh Act set a minimum period of time that offenders had to stay
on the registry, depending on the seriousness of their offense. But plenty of
states require offenders to stay on for longer — many of them for life.
all that's officially required, at least at the federal level. But because of
concern about child predators — and the sex offender registry is such a
visible, readily available tool — sex offenders also have to deal with a raft
of "collateral consequences": restrictions they face above and beyond
their official punishment.
Laws can make it
impossible for sex offenders to find housing or get a job, years after they've
completed their sentences
sex offenders are still characterized as child predators, states and cities
commonly ban them from living within a certain distance of schools, parks, day
cares, or "other place(s) children may gather," in the words of the
Council on State Governments. (The same logic has led dozens of states to
require GPS monitoring for sex offenders.)
2010, 27 states had passed some form of
residency restriction on sex offenders. Hundreds of cities have done the same.
laws are a classic case of unintended consequences, especially in urban areas
where it might be hard to find housing that isn't within 2,000 feet of anywhere
children may "gather."
In San Diego, a federal judge ruled that a California residency restriction law was
unconstitutional in 2015. Residency restrictions consumed "huge swaths of
urban and suburban San Diego"
(according to the district attorney's office).
Restrictions covered more than 97 percent of "multifamily" housing
like apartment buildings and long-resident hotels — the places where sex
offenders, who often don't have families or earn enough to live in
single-family homes, tend to live.
over and above the typical sorts of collateral consequences — laws restricting
whom sex offenders can live with, where they can be licensed to work, and what
sorts of benefits they can get.
pass all sorts of restrictions like this on people with criminal records.
Individually, they often make sense — or at least they aren't objectionable.
The problem is in the aggregate: They end up making it much more difficult for
ex-offenders to earn a living and reintegrate into their communities. And
because the sex offender registry is right there in the public eye, it's more
likely to be the target of collateral consequences than most.
In California, for example,
there are 239 mandatory restrictions on sex offenders. Most, again, have to do
with children: Offenders can't live with an adopted child (which can preclude
them from staying with relatives), can't work in public parks, and can't enter
school grounds without "lawful business." But they also can't live in
facilities for the chronically ill, can't drive tow trucks, and can't sell
course, it's legal for employers to refuse to hire sex offenders even when
there's no law mandating it. In a 2014 study of sex offenders in Pennsylvania, Wisconsin,
more than half of offenders said they'd lost a job due to their status; one
said that he'd gotten a call from an employer telling him never to send them a
The purpose of the
registry is to use social stigma to buttress the law — which can often tip over
need a sex offender registry to pass any of these laws (though the presence of
a registry arguably encourages it). There are plenty of people who, after
completing terms in prison, report to law enforcement on a regular basis, are
monitored, and live under restrictions on where they can go and whom they can
makes the registry different is that it's public — you can't identify a parolee
just by Googling him, but you can identify a sex offender. That's the entire
purpose of the registry: it was supposed to give parents the tools they needed
to protect their children in the face of a threat so (supposedly) rapacious
that law enforcement couldn't be trusted to keep it at bay.
illegal for people to use sex offender registries for harassment. But they're
encouraged to use them for social stigma.
is often crossed. The 2014 study found that more than 40 percent of offenders
had been harassed in person; many had also gotten harassing mail or phone
calls. Several offenders reported their families had been harassed or shunned.
"People pick on my children," one respondent said. "They make
jokes about me being an easy lay to my teenage sons."
sometimes it's hard to tell the difference between harassment and a
neighborhood protecting itself — just as the law says it's supposed to do. Take
this one from February: A Mesa, Arizona, woman tried to start a halfway house
for sex offenders, and her neighbors responded by offering to buy
the house from her to keep the sex offenders out of the neighborhood; putting
up "Sex Offenders, Felons and Pedophiles" signs pointing to the
house; and siccing the county government on her for a licensing violation. Is
that an unintended consequence, or the point of the law?
Registries don't do
what they're supposed to
is always a trade-off. The question is whether the benefits are worth the
risks. The intended benefit of sex offender registries was supposed to be
greater protection of children — with fewer opportunities for recidivist sexual
predators to attack children, there were supposed to be fewer sex crimes
hasn't happened. The evidence on registries' ability to prevent sex crimes is mixed at best. The evidence that residential
restrictions prevent sex crimes is nonexistent.
registered sex offenders go on to commit another sex crime — studies have
estimated recidivism rates between 5 and 15 percent, which sounds high but is
relatively low compared with other crimes. Barring sex offenders from living
near children, for instance, doesn't stop the recidivists from recidivating.
And most new sex crime convictions involve people who aren't registered sex
more about sex crimes now than policymakers did in 1996. The "stranger
danger," child-focused predator isn't as common as people think. Sexual
abuse at the hands of intimate partners and family members is far more common —
and there's evidence that strict registry laws might
make victims less likely to report their relatives as abusers, since they might
not want the "permanent banishment" that entails.
risks, on the other hand, have been huge. It's not an exaggeration to say that
the combination of legal restrictions and social stigma destroys lives. Sarah
Stillman wrote a New Yorker feature earlier this year that is a must-read if
you want to understand the booby-trapped world in which sex offenders live:
One morning during her junior year, (Leah) DuBuc returned
to her room from psychology class to find a yellow Post-it on her door:
"We know you’re a sex offender. GET OUT OF OUR DORM. You’re not
wanted here." She tore it up, and told no one. A few days later, as she
sat in her room working on a paper for class, she heard a ping from her
AOL Instant Messenger account. The sender was anonymous. "We know you’re a
sex offender," DuBuc read. "Get out."
She no longer felt safe in the dorm. But in order to rent
her own apartment she’d need a decent income. She applied for jobs that
interested her—working with the homeless, helping out an urban ministry—without
success. Then McDonald’s, Burger King, and Subway turned her down because of
her offender status.
offender registries don't prevent crimes. They simply punish them.
Registries put the
burden on everyone else to protect themselves from rapists
importantly, the way we think about rape now is nothing like the way people
thought about child abuse two decades ago.
offender registries were supposed to be necessary because sexual predators
could not be controlled or rehabilitated. The best way to stop predation was
for parents to control their own behavior (and their children's) and ensure
they stayed out of harm's way.
exactly the kind of thinking anti-rape activists have tried to fight in other
arenas. They think the onus ought to be on society and institutions to teach
people not to rape — not on women to learn how not to get raped.
punishing people who commit sexual crimes by putting them on a permanent list,
critics like Allegra McLeod of Georgetown Lawhave
pointed out, the law isn’t just claiming that they’re incapable of controlling
their own sexual urges (which is exactly the same thing that many rape
apologists say). It’s also closing off "the varied array of other, more
specific structural and institutional reformist responses that might better
address the reality of sexual harm."
existence of sex offender registries, critics point out, doesn’t change the
fact that police often treat rape survivors more skeptically than victims of
other crimes. It doesn’t address the failures of institutions (like
universities and the military) to treat sexual assault cases with criminal
seriousness. And it reinforces the very attitude that Turner, his family, and
his friends demonstrated in the wake of his conviction: that a normal American
man couldn’t possibly be a rapist.
The real question:
What's the goal for criminals?
comes to people like Brock Turner, though, the question isn't really whether
registering him as a sex offender will prevent future rapes. The reason people
tend to believe he ought to be on the sex offender registry is that he's done
something very wrong and he deserves to be punished for what he's done.
important function of the criminal justice system: setting norms by setting
penalties for violating them.
about criminal justice reform often focus solely on incapacitating and
rehabilitating criminals — preventing future crimes — and treat
"punitiveness" as a bad goal to have. But it's totally acceptable to
believe that because rape is wrong, Brock Turner must be punished.
because the sex offender registry is better at punishing people than it is at
preventing crime doesn't mean it's the right way to punish people, either.
light a punishment. The fact that Turner will become a registered sex offender
when he leaves prison hasn't stopped people from being outraged at how little
time he's spending there. Prison is typically how people are punished for
serious crimes in the US; if the purpose of punishment is to signal that
someone's done wrong, not putting him in prison kind of undermines that.
too harsh a punishment. Most people aren't sentenced to prison for life; their
punishments are only supposed to last a certain amount of time. Having your
life constrained and restricted even after your sentence is over might be a
fact of life in our current criminal justice system, but that's not the way
punishment is supposed to work.
the appropriate punishment for sexual assault — and when can assaulters get the
chance to learn their lesson?
the appropriate punishment for other sex offenses? And how can we effectively
prevent rape? These are good questions. But they're different questions from
each other. The sex offender registry, with its one-size-fits-all approach, has
pretended to answer all of them — by, in reality, answering none.