Sex Offenders

Sections within this essay:

Background

Society and policy makers have long struggled with finding effective ways to protect the public from sex offenders. A sex offender is a person who has been convicted of certain sex offense crimes. Examples of sex offenses include:

• Sexual conduct with a minor
• Sexual assault
• Sexual assault of spouse
• Molestation of a child
• Continuous sexual abuse of a child
• Infamous crimes against nature
• Lewd and lascivious acts
• Indecent exposure and public sexual indecency
• Taking a child for the purpose of prostitution
• Sexual exploitation of a minor
• Incest
• Kidnapping, aggravated assault, murder, unlawful imprisonment, and burglary (when the offense includes evidence of sexual motivation)
• Failure to register as a sex offender
• Violation of Sex Offender Registration statutes

Most offenses involving criminal sexual conduct fall within the jurisdiction of state law, but federal law also includes a number of sexual offenses. The offenses are found in Title 18 of the United States Code. Some of the federal offenses specifically apply to sexual offenses committed within the territorial jurisdiction of the United States or in a federal prison. Other crimes involve offenders who cross state or international borders to commit, or in the commission, of a sexual offense. For example, 18 U.S.C. section 2251 makes it illegal to knowingly print, publish, or cause to be made, "any notice or advertisement seeking or offering to receive, exchange, buy, produce, display, distribute, or reproduce any visual depiction involving the use of a minor engaging in sexually explicit conduct. This statute also applies when such person knows that such notice or advertisement will be, or has been, transported in interstate or foreign commerce by any means, including by computer."

Federal sexual offense include:

• Selling or buying of children (Section 2251A(a)(b))
• Certain activities relating to material involving the sexual exploitation of minors, includ-ing both distribution and receipt of visual depictions in books, magazines, periodicals, films, and videotapes (Section 2252)
• Certain activities relating to material constituting or containing child pornography (Section 2252A)
• Production of sexually explicit depictions of a minor for importation into the United States (Section 2260)
• Transporting an individual in interstate or foreign commerce with the intent that the individual engage in prostitution or other illegal sexual activity (Section 2421)
• Transportation of minors in interstate or foreign commerce, with intent to engage in criminal sexual activity (Section 2423(a))
• Interstate or foreign travel with intent to engage in a sexual act with a juvenile (Section 2423(b))
• Use of interstate facilities to transmit information about an individual under the age of 16, with "the intent to entice, encourage, offer, or solicit that minor to engage in any sexual activity that can be charged as a criminal offense." (Section 2425)

The Impact of Jacob Wetterling

On October 22, 1989, eleven-year-old Jacob Wetterling was abducted as he, his brother, and a friend rode their bikes home from a convenience store in St. Joseph, Minnesota. Law enforcement authorities arrived on the scene within minutes. No sign of Wetterling or his abductor has ever been found, despite the involvement of local authorities, the Federal Bureau of Investigation, hundreds of volunteer searchers, and more than 50,000 leads.

Jacob's disappearance spurred his family and supporters to found the Jacob Wetterling Foundation (JWF) in January 1990. The Foundation's mission is to protect children from sexual exploitation and abduction, through prevention education, victims' assistance, and legislation aimed at sex offenders. In 1991 JWF saw its first success with Minnesota's State Sex Offender Registration Act. The law provided law enforcement authorities with a comprehensive list of sex offenders in the state, something authorities lacked when Jacob was abducted.

JWF's agenda has included both state and federal legislative changes. In 1994, Congress passed the Omnibus Crime Bill. This legislation included the Jacob Wetterling Crimes Against Children and Sex Offender Registration Act. The law mandated that each state create a specific program to register sex offenders.

In 1996, the Wetterling Act was amended by Megan's Law (discussed below), and the Pam Lychner Sex Offender Tracking and Identification Act. The Lychner Act called upon the FBI to establish a national database of names and addresses of sex offenders who are released from prison. It also required lifetime registration for certain offenders. Its purpose is to make it easier for authorities to track the movements of convicted sex offenders throughout all 50 states. The National Sex Offender Registry can be found at http://www.nsor.net.

In 1997 other changes were made to the Wetterling Act. Changes included heightened registration requirements for sexually violent offenders such as members of the U.S. Armed Forces. Additional registration requirements were imposed for sex offenders who live in one state but go to school or work in another state.

Community Notification Laws

The original impact of the Wetterling Act was to provide law enforcement authorities the means to track and locate convicted sex offenders. Community notification laws have adapted the idea to make information about sex offenders available to the public. Community notification laws, commonly referred to as sex offender registries, are most often associated with the 1994 rape and murder of seven-year-old Megan Kanka. She died just thirty yards from her own front door in Hamilton Township, New Jersey. On July 29, 1994, a neighbor lured the little girl to his house with the promise that she could see his new puppy. The neighbor was a convicted sex offender who had served time in prison for aggravated assault and attempted sexual assault against a child.

The outcry over Megan's death spurred the New Jersey Legislature to quick action. Within three months, the legislature passed the community notification law known as Megan's Law. Less than two years later, on May 17, 1996, President William Jefferson Clinton signed a federal version of the law, amending the Wetterling Act. The amendment required each state to provide public notification and information about sexual offenders living in the area. The law applies to all sex offenders—whether their victims were children or adults.

Sex offender registry requirements vary by state, but share common characteristics. Convicted sexual offenders are required to register with their local law enforcement or corrections agency. This information is forwarded to a central location, such as the state police or state bureau of investigation. Information required for the registry typically includes name, address, date of birth, social security information, physical description, fingerprints, and photographs. Conviction information may also be required, as well as samples for DNA identification.

A court or registering agency informs offenders of their duty to register. Offenders typically must register within days of their release from prison or placement on supervision. Placement on the registry usually lasts ten years. Lifetime registration may be required, particularly if an offender has been denominated a "sexual predator" or where an offender has been convicted of a subsequent sexual offense.

According to the Department of Justice's Bureau of Justice Statistics, in February 2001, approximately 386,000 convicted sex offenders were registered in 49 states and the District of Columbia (excluding Massachusetts). In April 1998, 277,000 offenders were registered. California led the way with more than 88,000 registrants; Texas was next with almost 30,000. Thirty-two states collected DNA information from registrants. The FBI maintains a web site with links to all state sex offender registry web sites. The site is located at http://www.fbi.gov/hq/cid/cac/states.htm.

Every state has a sex offender registry, but states vary greatly in how they release information to the public, and what information is released. Some states require interested citizens to access registry information at their local law enforcement agencies. For example, in South Dakota only a few communities have placed specific offender information online; in most communities interested citizens must request the information from authorities. In the neighboring state of Iowa, anyone can access information online about any person on its sex offender registry in a number of ways. Searches can be conducted by name, geographic location, or gender of the offender or victim. Iowa provides photos, physical descriptions, addresses, and details of convictions.

Law enforcement authorities may also have the obligation to disseminate information about registered sex offenders. Notification may extend to prior victims, neighbors, schools, youth organization, and other relevant individuals or groups. In some cases, community-wide notification may be required. Newspapers, television, radio, and community meetings are some of the methods used to provide community notification.

Critics of sex offender registries claim that they do little to protect the most victims of sexual offenses, because most victims know the perpetrator. According to the Department of Justice, about seven of every ten female rape or sexual assault victims reported that the perpetrator was an intimate, relative, friend, or acquaintance.

The U.S. Supreme Court has addressed the constitutionality of sex offender registries. In Connecticut Department of Safety v. Doe, and in Smith v. Doe, both decided March 5, 2003, the court found that sex offender registries do not violate sex offenders' constitutional rights.

Residency Restrictions for Sex Offenders

Residency restriction laws are a fairly new method some jurisdictions are using in an attempt to curb the actions of sex offenders. Alabama passed the first residency restriction law in 1996. The law was part of the states' Community Notification Act. It prohibited child molesters from living within 1,000 feet of a school. By January 2006, approximately 14 states had enacted residency restrictions. Moreover, some local governments have implemented their own residency restrictions.

Critics and supporters of residency restriction laws have watched Iowa's law with interest since its passage in 2002. The Iowa law applies to a "person who has committed a criminal offense against a minor, or an aggravated offense, sexually violent offense, or other relevant offense that involved a minor." According to the law, "A person shall not reside within two thousand feet of the real property comprising a public or nonpublic elementary or secondary school or a child care facility." The law does not apply in certain circumstances, including where the "person has established a residence prior to July 1, 2002, or a school or child care facility is newly located on or after July 1, 2002," or where the person is a minor or a ward under a guardianship. It is an aggravated misdemeanor to reside within 2,000 feet of a school or child care.

The Iowa law took effect on July 1, 2002, but was almost immediately challenged in federal district court. The plaintiffs were three named sex offenders who contended that the law was unconstitutional on its face. The case was certified as a class action, on behalf of other sex offenders to whom the law would apply. At trial, the plaintiffs presented evidence regarding the scope of the law. In many cities, the law would effectively limit sex offenders to small areas of residency. In small towns, a single school or child care center could mean that the entire town was off limits. Expert witnesses on both sides testified to their beliefs in the expected efficacy of the law.

The district court enjoined enforcement of the law, and ruled that it was unconstitutional on several grounds, including:

• The law was unconstitutional because it was an ex post facto law for anyone convicted before July 1, 2002;
• It violated plaintiffs' rights to avoid self-incrimination, because registrants would be required to report their addresses, even when the addresses were not in compliance with the law;
• It violated plaintiffs' procedural due process rights;
• It infringed on fundamental rights to travel and decide how to conduct their family affairs; and
• It was not tailored narrowly enough to serve a compelling state interest.

In a ruling dated April 29, 2005, three judges from the United States Eighth Circuit Court of Appeals unanimously voted to reverse the district court's decision. The appellate court dispensed with each ground relied upon by the district court, and ruled that the law was not unconstitutional on its face. The court ruled that there exists no constitutional right to "live where you want." Therefore, the state only needed to show that the statute rationally advanced some legitimate governmental purpose. Plaintiffs acknowledged that the law was enacted to promote the safety of children, and that this was a legitimate legislative goal. They argued, however, that the law is irrational because there is no scientific evidence to support the conclusion that residency restrictions will enhance the safety of children. The court rejected this argument as well, noting that state policymakers are entitled to employ "common sense" when making a determination that "limiting the frequency of contact between sex offenders and areas where children are located is likely to reduce the risk of an offense."

Two judges agreed that the law did not amount to an ex post facto punishment. They ruled that plaintiffs did not establish by "clearest proof" that the law's punitive effect overrides the legislature's "legitimate intent to enact a nonpunitive, civil regulatory measure that protects health and safety" of the state's citizens.

Municipalities and counties have enacted their own versions of residency restrictions. For example, in Des Moines, Iowa, the state's largest city, officials added parks, libraries, swimming pools, and recreational trails to the list of protected buffer zones.

A report in the Des Moines Register on January 22, 2006, reported that since the state's residency law took effect, more sex offenders are eluding tracking by authorities. The paper reported that 298 sex offenders were unaccounted for in January 2006, compared to 142 on June 1, 2005. Critics charge that the law has forced some sex offenders to become homeless; others may lie and say that they are homeless to hide the fact that they are not complying with the law. Iowa has approximately 6,000 registered sex offenders.

Other Methods to Deal with Sex Offenders

Chemical and Surgical Castration

A few states, including California and Florida, permit convicted sex offenders to be injected with Depo Provera, an FDA-approved birth control drug. Often called "chemical castration," Depo Provera is meant to quell the sex drive of male sex offenders by lowering their testosterone levels. The drug does not render any permanent physical change to the body. The treatment is believed to be most effective on sex offenders who possess uncontrollable biological urges that take the form of sexual fantasies that are usually only satisfied by acting on the fantasy.

Both the California and Florida statutes provide for mandatory injections for repeat sex offenders, as well as discretionary injections for first-time offenders. Despite the mandatory language in the Florida law, the law has apparently been invoked only a few times since its passage in 1997.

Critics, including the American Civil Liberties Union (ACLU), charge that chemical castration violates sex offenders' constitutional rights. The ACLU contends that chemical castration violates an offender's implied right to privacy under the Fourteenth Amendment, rights of due process and equal protection, and the Eighth Amendment's ban of cruel and unusual punishment.

Pursuant to a 1997 law, Texas permits surgical castration of offenders. By May 2005, three men had undergone the voluntary procedure. Candidates must be at least 21 years of age, have had at least two sex offense convictions, and have undergone at least 18 months of sex offender treatment, including Depo Provera injections, to understand how their bodies might react with less testosterone.

Civil Commitment

Some states have used civil commitment proceedings to remove habitual sex offenders from society for extended periods of time. The United States Supreme Court ruled in Kansas v. Hendricks (1997) that such laws do not violate the Constitution's double jeopardy or ex post facto clauses.

Minnesota's civil commitment law for habitual sex offenders is fairly typical. Under Minnesota law, a person classified as having a "sexual psychopathic personality" or denominated a "sexually dangerous person" may be committed indefinitely in a secure treatment facility. The commitment is intended to reduce the risk of future dangerous sexual behavior. It is not meant to serve a punishment for past crimes. Civilly committed sex offenders may be held for an indeterminate amount of time. In other words, they may be held as long as warranted to successfully treat them and to satisfy public safety concerns.

According to Minnesota's law, a person with a sexual psychopathic personality is one who:

• Has engaged in a "habitual course" of misconduct in sexual matters
• Suffers from an "utter lack of power to control" sexual impulses
• As a result of this inability to control behavior is "dangerous to other persons"

A sexually dangerous person is defined as someone who has "engaged in a course of harmful sexual conduct." This conduct creates a "substantial likelihood" of serious physical or emotional harm to another. Moreover, the person must be diagnosed with a sexual, personality or mental disorder, and found likely to engage in harmful sexual conduct in the future.

A commitment hearing is held to determine whether civil commitment is warranted. This hearing is usually held shortly before a sex offender is to be released from prison. Commitment proceedings could also be commenced as part of a plea agreement. A petition may also be filed after a person has been released from prison on a conditional or supervised release. It is not necessary that a person have committed any further sexual offenses after the release from imprisonment.

A judge makes commitment determinations in Minnesota. The judge listens to evidence on both sides, which may include evidence of past sexual misconduct that did not result in an arrest or conviction. The state has the burden to prove that commitment is necessary, but its burden of proof is not as high as in a criminal case. If the judge finds by clear and convincing evidence that the individual is a sexual psychopathic personality or a sexually dangerous person, the person will be committed to a secure treatment facility operated by the Minnesota Sex Offender Program.

Officials generally have 60 to 90 days to evaluate the inmate and report back to the court once a person has been committed. The court then holds a second hearing to determine whether an indeterminate commitment is required.

Minnesota mainly relies on group therapy to treat civilly committed sex offenders. The offender progresses through three stages: the evaluation stage, the inpatient treatment stage and the transition stage. The inpatient treatment stage consists of four parts; an offender must pass each before progressing to the next stage. The parts are accountability, insight, integration/behavior change, and preparation for the transition stage.

A review board determines when discharge, transfer, or other change in status is appropriate. Requests for such a hearing may come from the patient, the patient's attorney, or the facility medical director. After a hearing, the review board recommends a course of action to the Commissioner of the Minnesota Department of Human Services. The Commissioner then issues an order denying or granting the petition. The Commissioner's order is subject to appeal, ultimately by the Minnesota Supreme Court.

Amber Alerts

Although not specifically targeted only at sex offenders, the Amber Alert system is intended to quickly and widely disseminate information about child abductions. AMBER is an acronym for "America's Missing: Broadcast Emergency Response." The sys-tem takes its name from nine-year-old Amber Hagerman, who was abducted and murdered in Arlington, Texas, in 1996. It uses various media outlets to inform the general public that a child has been abducted. Alerts go out over radio, television, e-mail, electronic traffic-condition signs, and SMS text messages. Law enforcement typically broadcast the name and a description of the abducted child, and a description of the suspected abductor and the abductor's vehicle, and license plate number, when available.

On April 30, 2003, President George W. Bush signed into law the PROTECT Act, which established the federal government's role in the Amber Alert system. The law appropriated $20 million for the National Amber Alert Network for grants to the states for the development or enhancement of notification systems. Every state has an Amber Alert system. According to the Department of Justice, 71 children were recovered in 2004 due to the Amber Alert system.

Additional Resources

Sexual Violence: Opposing Viewpoints. Helen Cothran, editor, Greenhaven Press, 2003.

Expert: Castration No Cure for Pedophilia. Robert Crowe, The Houston Chronicle, Section B, P. 1, May 10, 2005.

Summary of State Sex Offender Registries, 2001. Bureau of Justice Statistics, Department of Justice, March 2002, available at http://www.ojp.usdoj.gov/bjs/pub/ascii/sssor01.txt.

Chemical Procedure for Sex Offender Weighed. Larry Keller, Palm Beach Post, Page 1B, August 30, 2005.

Twice as Many Sex Offenders Missing. Lee Rood, Des Moines Register, Page A1, January 22, 2006.

Iowa Joins Other States with Tough Molester Laws. Tim Higgins, Des Moines Register, December 26, 2005, available at http://desmoinesregister.com/apps/pbcs.dll/article?AID=/20051226/NEWS01/512260318.

Iowa Law has Sex Offenders Packing Bags. Michael Riley, The Denver Post, January 8, 2006, available at http://www.denverpost.com/nationworld/ci_3382005.

Sex Offender Civil Commitment Fact Sheet [Minneosota] Office of the Ombudsman for Mental Health and Mental Retardation, January 2004, available at http://www.ombudmhmr.state.mn.us/cctrc/sexoffenderccfactsheet.htm.

Reaching Out. Justine Brown, Government Technology, May 27, 2005, available at http://www.govtech.net/magazine/story.php?id=93808.

Sex Offender Community Notification Law [Alabama]. Available at http://www.ago.state.al.us/victim_master.cfm?Action=Offender.

Organizations

National Sex Offender Registry (NSOR)

URL: http://www.nsor.net/index.htm

Jacob Wetterling Foundation (JWF)

2314 University Avenue West, Suite 14
St. Paul, MN 55114 USA
Phone: (800) 325-HOPE
Fax: (651) 714-9098
URL: http://www.jwf.org
Primary Contact: Nancy Sabin, Executive Director

Office of Justice Programs, U.S. Department of Justice, Amber Alert Program

810 Seventh Street NW
Washington, D.C. 20531 USA
URL: http://www.amberalert.gov
Primary Contact: Regina B. Schofield, Amber Alert Coordinator, Assistant Attorney General