Briefing the Supreme Court: Promoting Science or Myth?

Melissa Hamilton

Introduction

The Supreme Court recently decided, in Packingham v. North Carolina, whether North Carolina’s ban on the use of social networking websites by registered sex offenders is constitutional. The principal legal issue in the case was whether the ban violates the First Amendment’s right to freedom of speech. The Supreme Court found the law unconstitutional for that reason.

Yet another issue arose in the briefing and oral arguments before the Supreme Court. The litigants and certain amici curiae engaged in some debate about whether such a restriction is necessary in the first place. That is, various parties argued about whether the ban serves to protect the public from what North Carolina and the representatives of twelve other states in a collective amicus brief contend are high risk sex offenders who commonly use the internet to locate children for purposes of sexual exploitation. In opposition, Packingham’s submissions, as the individual petitioner, and the amicus brief by a group of sex offender treatment professionals refute such allegations.

This debate is important because it goes to the heart of the foundational basis of North Carolina’s justification for the ban. The Supreme Court has previously approved civil restrictions on sex offenders, such as public registries and residency restrictions, based on the belief that their recidivism risk is “frightening and high.” Yet some experts point out that the scientific evidence is to the contrary. News reporters have noticed and have run stories about the Packingham case, specifically challenging the Supreme Court’s previous rulings that uphold sex offender restrictions. The headline in the New York Times reads “Did the Supreme Court Base a Ruling on a Myth?” Similarly, Slate Magazine’s coverage leads with “The Supreme Court’s Sex-Offender Jurisprudence is Based on a Lie.”

The arguments concerning the government’s purported need for a social networking ban refer to various statistical studies of sex offenders. This Essay contends that the case materials in Packingham v. North Carolina in support of the ban contain significant misunderstandings in conceptualizing and conveying the scientific evidence about the dangerousness of sex offenders. Such a conclusion is particularly distressing, as these errors are contained in briefs and oral arguments before the Supreme Court of the United States in an important constitutional case. The Supreme Court’s majority opinion decided the case without relying, one way or the other, upon these scientific assertions. But if the justices had relied upon the version of the scientific evidence offered by the states in deciding Packingham, they would have continued to be misled about the risks involved. This Essay addresses why the studies that North Carolina and its amici offered are more akin to junk science than valid representations of the empirical evidence as applicable to the group of sex offenders to whom the ban targets.

This Essay proceeds as follows. It first summarizes the background to Packingham. The following three sections review the main arguments that North Carolina and the thirteen states as friends of the court make concerning the risk of sex offenders using social media to exploit minors. Alongside are analyses of the validity of the scientific evidence they cite.

I. The Packingham Case

The North Carolina legislature passed the Protect Children from Sexual Predators Act in 2008. The law bans the use of commercial social networking websites (SNS) by registered sex offenders. Violating the ban constitutes a felony.

Lester Gerard Packingham (Petitioner), was convicted of violating the statute for creating a Facebook profile. He challenged his conviction on First Amendment grounds. Petitioner won in the state appellate court, which ruled that the statute was vague and arbitrarily burdened registered sex offenders’ free speech rights. The North Carolina Supreme Court reversed. In a non-unanimous ruling, the majority found the statute was neither vague nor did it unduly infringe upon First Amendment rights. In addition, the majority determined that the law appropriately fit “the government’s interest in protecting children from registered sex offenders who are lurking on social networking Web sites and gleaning information on potential targets.”

Packingham petitioned for a writ of certiorari. The United States Supreme Court granted the writ and held oral arguments on February 27, 2017.

In its briefing and in oral arguments before the Supreme Court, North Carolina made three claims about the risk of sex offenders. The State argued that these claims were supported by social science and were in keeping with common sense. The first was a broad allegation that registered sex offenders as a group have a “notoriously high recidivism rate.” The second claim was that sex offenders typically are crossover offenders, meaning individuals who have sexually offended adult victims also sexually victimize children. The State relied upon evidence of crossover offending to justify the ban’s application to all registered sex offenders, not just those who have previously victimized minors. North Carolina’s third assertion concerning risk was that registered sex offenders “commonly” use SNS to sexually exploit children. As a result, North Carolina contended that it needed to restrict registered offenders’ use of SNS to proactively prevent such exploitation. The next Sections review each claim.

II. Recidivism Risk

The State of North Carolina asserted that registered sex offenders have a “notoriously” high rate of sexual recidivism. The only empirical support North Carolina provided was a statistic from a Department of Justice document published in 2003. This report, aptly titled “Recidivism of Sex Offenders Released from Prison in 1994,” contains the findings of a study tracking the rearrests of almost 10,000 sex offenders released from fifteen state prisons in 1994 (the DOJ Recidivism Study). The study collected a fairly representative sample for the United States, as it consisted of two-thirds of all male sexual offenders released in the country in that year.

North Carolina points to the DOJ Recidivism Study’s finding that the sex crime rearrest rate for convicted sex offenders was four times higher than for non-sex offenders. The multiple of four that North Carolina highlighted is correct, but the State’s lawyers were also hiding the ball. The given result is not directly applicable to registered sex offenders, as the DOJ Recidivism Study did not differentiate registered from non-registered. Further, the DOJ Recidivism Study indicated that 5.3% of released sex offenders were arrested on a new sex crime. Then, as a sign that recidivism studies that rely upon arrest data may overreach in counting failures, the reconviction rate of sex offenders for new sex crimes was 3.5%. This means that one-third of those arrested for new sex crimes were not convicted of those charges. Moreover, neither statistic—rate of arrests or convictions—supports any type of “notoriously high” risk designation for sex offenders that North Carolina trumpets.

The Petitioner also cited the DOJ Recidivism Study, but to highlight additional results. He found it confirmed that “empirical evidence refutes widely-held assumptions about dangers posed by registrants.” In this respect, Packingham promoted two findings from the DOJ Recidivism Study: (1) the general recidivism rate (i.e., reoffending with any type of crime) for convicted sex offenders was significantly lower than for those convicted of other types of crimes, and (2) offenders previously incarcerated for nonsexual crimes accounted for six times more new sex crime arrests than those whose prior convictions were for sex crimes. The implication from these results is if the government truly hopes to target reductions in general recidivism and in sexual recidivism specifically, then it ought to focus more on non-sex offenders.

Perhaps realizing that the DOJ Recidivism Study is not very supportive of a “notoriously high” recidivism rate for sex offenders, North Carolina resorted to reflecting that the state’s own legislature and the United States Supreme Court have previously subscribed to the notion that sex offenders are highly likely to recidivate. The lawyer representing the State pointedly reminded the justices at oral arguments that the high court had in a prior case recognized that sex offenders are highly likely to repeat their crimes. North Carolina alternatively couched its conclusion on simple “common sense.” Yet common sense is not science and can be factually inaccurate.

At least the brief of the thirteen states acting as amici curiae (the States’ Amicus Brief) attempted to bolster the claim that a high percentage of sex offenders are recidivists by citing three additional scientific studies. However, none of the underlying studies has any strong relevance to the risk of registered sex offenders as none of them distinguished registered from nonregistered. Further, none of the studies are generalizable to a population of convicted sex offenders in North Carolina for the reasons that are discussed below.

The States’ Amicus Brief declares, “One study showed that, over a twenty-five year period, fifty-two percent of persistent child molesters were rearrested for a new sex offense and thirty-nine percent of rapists were rearrested for a new sex offense.” However, the underlying study is of limited value here. The study is dated, using a sample of sex offenders released between 1959 and 1985. The recidivism rates quoted by the States’ Amicus Brief are not the observed rates of recidivism, but merely projected rates using a technique called survival analysis. As a result, one of the original study’s authors has warned that the estimated rates should not be cited as actual rates. More importantly, the study is not generalizable to any degree, as the study sample was entirely composed of men prosecuted as “sexually dangerous” persons and thereafter civilly committed to a secure, inpatient mental health hospital. Hence, the sample is only representative of an extremely select group of those presenting the highest risk, and is further distinguishable as having been diagnosed with severe mental illness.

The States’ Amicus Brief touted two other studies in their efforts to promote the idea of repeat offending with respect to child molesters. It maintained, “A five-year follow-up study found that, of persons who had committed child molestation, fifty-three percent of same-sex offenders and forty-three percent of opposite sex offenders had already been convicted of previous sex offenses.” The underlying study poses similar problems in its ability to represent the recidivism of a general population of sex offenders. The sample was entirely comprised of civilly committed sex offenders with diagnosed severe mental disorders who were released from hospitalization in 1973.

Then the States’ Amicus Brief cited a third study, stating that it “showed that thirty-one percent of extra-familial child molesters were reconvicted of a second sexual offense within six years.” Again, empirical issues plagued its relevance to this case. The underlying study was conducted on patients released from a maximum-security psychiatric institution between 1972 and 1983. This study is also not on point for another reason: the site of the study was in Canada. In empirical terms, the results of the three studies the States’ Amicus Brief cites here are biased, with obvious validity concerns being represented as relevant to the risk of a heterogeneous group of registered sex offenders in North Carolina.

In contrast, the amicus brief on behalf of the Association for the Treatment of Sexual Abusers (and other groups) provided evidence of sexual recidivism studies from more appropriate samples. This brief cited results from studies of released sex offenders in seven different states in America, showing sexual recidivism rates in the low single digits (most around 3%), which is relatively consistent with the DOJ Recidivism Study results.

III. Crossover Offending Risk

The next scientific debate concerns crossover offending. North Carolina argued that its SNS ban is not overbroad in applying to all registered sex offenders. The state contended that “[r]esearch shows a high cross-over rate for sexual offenders,” meaning that offenders with adult victims frequently molest children as well. North Carolina’s brief asserted that a “majority of studies find[] ‘rates in the range of 50 to 60 percent’” for crossover offending, citing a publication produced by the Department of Justice’s Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (with the office having the acronym “SMART,” thus herein the “Smart Report”). This statement is misleading in that a “majority of studies” does not refer generally to sexual recidivism studies. The Smart Report’s reference was actually to studies of only male offenders that specifically focused on crossover offending and used individual self-reports as the methodology (as opposed to other measurements such as official statistics in the form of arrests or convictions).

For the proposition of the 50–60% marker, the Smart Report cites five self-report studies. At the outset, it is evident that the description of the five studies, representing the “majority” of self-report studies on sexual recidivism, is a gross overstatement; the literature contains many more. In any event, the next Part analyzes the validity and reliability of those five studies in terms of whether they provide sufficient evidence for the State’s claim on the prevalence of crossover offending.

A. Assessing the Evidence on Crossover Offending

None of the five studies that the Smart Report cites as evidence of high levels of crossover offending are representative samples suitable for generalizing to a U.S.-based population of those convicted of sex offenses of all varieties. For example, each study relied upon convenience samples of individuals who were voluntarily or involuntarily in treatment programs for sexual deviance. From a scientific perspective, this type of nonprobability sampling means there is a high likelihood of selection bias and sampling error.

There are additional grounds for regarding the five studies as not generalizable outside their own contexts. Four of the studies were based simply on one or two sites, thus severely limiting inferences to other populations. Two of the studies included individuals in their samples who had not committed officially recognized sex crimes, rendering those samples inapposite to a population of convicted sex offenders, as there are risk relevant differences between the two populations. For the foregoing reasons, researchers in at least three of the five studies conceded in their papers that their research subjects did not constitute representative samples.

Additionally, the studies are bedeviled by questionable methodological choices that render them inherently unreliable. A few of these troubling issues are discussed herein.

1. Imprecision in Defining Sexual Offending

First, each of the five studies counted as offenses various behaviors that do not necessarily constitute crimes in the first instance, and do not necessarily involve human contact. For instance, one study (English et al.) counted as offenses with victims such things as obscene phone calls, voyeurism, stalking, and Internet pornography viewing. Another study (O’Connell) defined sexually deviant acts to include group sex, prostitution, peeping, and any sex with a male. Then a third (Wilcox et al.) recorded as offenses to be acts such as obscene phone calls, prostitution, calls to sex hotlines, adultery, threesomes, nude bars, and homosexual behavior. This means that the rates of crossover offending with adults and children as victims are likely exaggerated due to counting the foregoing types of behaviors along with forcible rapes and child molestation. The inclusion of behaviors that may be minor and fail to rise to the level of crimes is a facial validity problem, meaning that the definition applied in the studies does not truly reflect the concept of criminal offending.

2. Childhood Sexual Activity

Second, to the extent that the idea of crossover offending is suggestive of adults who offend against victims both above and below the age of eighteen, the studies provide weak support for such a vision. Researchers in each study tabulated sexual acts over the subjects’ lives; that is they obtained self-reports of lifetime sexual histories. Thus, offenses against minors included acts when the subjects themselves were minors. As an example, English et al.’s study indicated that nearly three-fourths of the sample recalled sexual offenses they committed when they were age thirteen or younger. It appears that at least some of the “offenses” against child victims may not have constituted crimes either. As further evidence of this, English et al.’s results also counted as child molestation any sexual behaviors with other minors that the subjects engaged in when they themselves were eight years old or younger. It is unlikely for children at such tender ages to be legally culpable of such crimes.

Nor do the researchers seem to distinguish perpetrator from victim when two minors engaged in sexual acts. Wilcox et al. counted as self-reported sexual offenses those that occurred when individuals were as young as six years of age. Another study defined child molestation based simply on age differences, including when both were minors. In sum, it appears that the so-called crossover-offending counts in these studies were not limited to conduct with children when the offenders were adults.

3. Reliability of Self-Reports

Third, all five studies relied upon self-reports by subjects during interviews with treatment staff, and the studies are further subject to question because researchers failed to externally validate the self-reported victims and offenses. In empirical terms, this means they could not establish concurrent validity, which would entail testing whether the information gleaned from self-reports is consistent with other sources.

The failure to validate is particularly troublesome here as the victim and offense counts reported in these studies yield unrealistic numbers of victims and sexual offenses per interviewee. For example, Heil et al.’s report indicated that individual inmate subjects recounted sexually offending against up to 215 different victims (on average reporting 18 victims) and up to 6,075 specific offenses (on average identifying 137 offenses). O’Connell’s study of patients referred for sexual deviance assessments found that subjects admitted to an average of 290 specific instances of sexually deviant behavior through their youth and adulthood. In Wilcox et al.’s small sample of British probationers, subjects on average reported 82 contact sexual offenses (standard deviation of 188) plus 81 noncontact sexual behaviors (standard deviation of 218). The standard deviations in Wilcox et al. suggests that multiple subjects were somehow able to identify and recount literally hundreds of contact and noncontact sexual acts they had committed. These extreme numbers suggest that most of the behaviors were nonserious, and as experience with self-reports in criminological studies informs, such studies are ripe with overreporting when eliciting events that are nonserious or high frequency occurrences.

Overall, it seems preposterous to assume that the examinees’ recollections were sound enough and sufficiently reliable to enable them to recount specifics about so many events and persons. Coupled with these studies’ tendencies to count sexual offenses perpetrated when the examinees were as young as six, the high number of “admissions” seems implausible. To this point, Abel and Osborn’s research found that adult offenders who reported having had a deviant sexual interest during childhood also admitted to committing an average of 380 sex offenses before reaching adulthood.

4. Controversies with Polygraph

A fourth issue is evident as researchers in four of the studies allegedly supported the idea of a high crossover offense rate by using polygraph testing to intentionally increase the number and scope of admissions. North Carolina’s brief did not mention the disputed nature of polygraph exams, but the Smart Report itself warns that using polygraph exams with sex offenders is a “controversial” practice, in part because of the “possibility of false admissions and an overstating of the number of victims.” Critics contend that the way polygraph exams for sex offenders are orchestrated enhances the likelihood that honest polygraph takers will be judged untrue, while frequent liars will be judged as truthful. Indeed, studies of polygraph exams of sex offenders have indicated false-positive rates (innocent examinees judged as deceptive) are higher than false-negative rates (lying examinees perceived as truthful).

Experts note several explanations for false positives in sex offender polygraph results. For one, innocent individuals who fear being wrongfully accused experience stronger physiological responses, which can read as deception. It is also recognized that sexual history disclosure tests often include ambiguous questions, such that the individual’s deceptive results may simply mean that he is having difficulty determining whether his behavior fits within the definition. For example, the Heil et al. study posed this question: “Have you physically forced or threatened anyone 15 or older into having sexual contact with you?” The fluidity of language and behaviors in human interaction is so variable that it might not be entirely clear to an examinee whether persuasive strategies count as force or threat, or whether a specific contact qualifies as sexual in nature. Thus, an examinee’s confusion as to the question may influence a deceptive response. There is also a strong potential for confirmation bias in which the polygraph investigator’s own judgment may be influenced by preconceived expectations about the true extent of the examinee’s sexual deviance. An examiner may have internalized the presumption that most sex offenders are repeat offenders, which could influence the tone of the questions and the resulting judgments on the subject’s veracity if he denies having additional victims or committing more offenses.

5. False Confessions

Another issue to acknowledge is that false confessions are often elicited in the context of sex offender treatment. English et al. noted that uncooperative sex offenders may exaggerate their sexual deviance in the treatment and polygraph process. O’Connell likewise conceded that the result of examinees in his study reporting on average about 300 sexually deviant behaviors may in part be explained as their “[w]anting to ‘pass’ the [polygraph] examination may have led them to over-estimate their deviant sexual histories, and the polygraph charts may not have picked up their exaggeration.”

Incentives for progress in treatment may increase false admissions. The Heil et al. study compared polygraph-induced admissions between a group of prisoners and a group of parolees. The prisoners were rewarded for success in treatment with a transfer to a less secure facility and a reduction in sentence. The parolees did not receive an analogous reward. Thus, Heil et al.’s finding that the number of additional disclosures (whether true) following polygraphs for the sample of prisoners was significantly greater than the increased disclosures from the parolees who did not receive equivalent incentives may be evidence of this carrot-like effect of inducing potentially false admissions by the prisoners.

Additional reasons may explain the role of polygraphs in inducing exaggerations. A polygraph examiner familiar with post-conviction sex offender treatment programs observes that program officials routinely challenge the credibility of every examinee, regardless of the polygraph results. He explains that as a result,

examinees [are] faced with a limited range of options, which may include accepting arbitrary consequences for making no admissions, making false admissions, or developing their skill at making safe admissions to placate or manipulate the polygraph examiner and referring agent into a sense of complacent satisfaction that they are extracting additional information by routinely questioning truthful examinees.

Sex offenders may likewise falsely confess because they believe it is expected that they had previously unknown victims. Thus, observers note that many “[sex] offenders might have fabricated stories after deceptive test outcomes, in order to satisfy examiners or to obscure the actual reason for failing the test.” The National Resource Council, a research committee of the National Academy of Sciences, recognizes that false confessions are more common than people may think and that polygraph interrogations, particularly those involving false-positive test results, are prone to generating erroneous admissions.

For the foregoing reasons, North Carolina did not provide sufficient empirical evidence for its claim of a high rate of crossover offending against adults and children by sex offenders.

B. Assessing the Risk of Registered Sex Offenders to Children

North Carolina next proclaimed that “[r]egistered sex offenders are proportionately far more likely than members of the general public to sexually assault minors,” emphasizing such statement in bold and underlined type. The State asserted that this higher risk for registered offenders regarding children is “supported by social science.” Yet the statistical measures it provided under that heading offer no authority for the risk of registered sex offenders, as opposed to nonregistered sex offenders. Nor did the State present any evidence for the conclusion that child victims are at higher risk of victimization by known sex offenders, registered or not. Instead, the State simply claimed that reported recidivism rates of sex offenders are underestimates because of the gross underreporting of sex crimes due to the victims’ shame. Here, North Carolina pointed to the Smart Report’s reference to a study finding that just 5% of rapes and child sexual assaults self-reported during treatment were reflected in official records.

Yet, the fact that self-reports of offenses do not equal official record counts does not in itself show that registered sex offenders are more likely to assault minors. The study underlying the 5% figure likely did not differentiate registered versus unregistered offenders as few registered offenders existed at the time of the research. North Carolina did not cite any empirical research to substantiate its seeming presumption that underreporting is a greater problem when the perpetrators are previously identified sex offenders—as opposed to the general public. To the contrary, the same Smart Report the State so frequently cited indicates the opposite. The Smart Report states that those who have had prior contact with police are most likely to be arrested, charged, and prosecuted for new sex crimes. In sum, North Carolina failed to reveal what “social science” might bolster its claim about the higher risk to children specifically presented by registered sex offenders.

IV. Online Risk

The next empirical issue the Packingham materials address concerns evidence to support the notion that registered sex offenders pose a significant risk of sexually exploiting minors by means of SNS. North Carolina’s brief to the Supreme Court made the following claim: “Sexual predators commonly use social networking sites to cull information about minors.” It supported this assertion by citing two studies.

A. British Reports of Suspicious Online Activity

North Carolina’s brief claimed that “[o]ne study found that ‘48.5% of online child sexual exploitation reports received were linked to social networking sites.’” This statistic derives from an article in the British newspaper the Telegraph. The underlying source is a document generated by a division of the British national police agency concerning communications it had received from the public about possible online sexual exploitation. However, the report does not differentiate complaints that were substantiated as constituting a crime. Nor does the report distinguish whether the online exploiters were previously known sex offenders as compared to members of the general public. Plus, many of the reports did not suggest the involvement of any adults. For example, the report indicates that a majority of the reports involving sexually suggestive images of minors were self-generated without any coercion or exploitive acts by adults. Further, the Telegraph article also quotes a British police official warning that much of the use of online social networks to contact children is by foreigners acting from outside Britain. In sum, the 48.5% statistic fails to substantiate North Carolina’s need to ban registered residents from SNS.

B. The Online Exploitation Study

North Carolina’s brief cited a second study as purportedly supporting its claim about the prevalence of sexual predators gaming SNS to prey on children:

Another study showed that “in 82 percent of online sex crimes against minors, the offender used the victim’s social networking site to gain information about the victim’s likes and dislikes,” and “in 62 percent of online sex crimes against minors, the offender used the victim’s social networking site to gain home and school information about the victim.”

However, neither of the statements in quotation marks are actual excerpts from the underlying study’s report. Moreover, the statistical measures reported by North Carolina significantly misrepresent the study’s actual findings. The study at issue was conducted by researchers with the Crimes Against Children Resource Center using results from the National Juvenile Online Victimization survey. This survey queried a national sample of law enforcement agencies concerning arrests for online sex crimes against children (the Online Exploitation Study). The Online Exploitation Study did not distinguish sexual predators as North Carolina’s claim suggested. The study concerns individuals arrested for online sexual exploitation of children, whether or not previously known as sex offenders.

Additionally, the 82% figure is not of all arrests for online sex crimes against minors as North Carolina’s brief conveys; it is the figure representing a small subset thereof. The Online Exploitation Study did concern arrests for online sex crimes against minors, but cases in which offenders used SNS in such crimes comprised just one-third of those arrests. Then the study divided arrests involving SNS into three groups: those involving identified victims, those with victims who were not identified, and those in which there were no real victims in the sense that they were cases in which undercover officers portrayed minors online. The 82% figure actually concerns just those cases in which the offenders used SNS with identified victims, a small subset of the larger sample.

Crunching data contained in the Online Exploitation Study, the calculated percentage of offenders arrested for online sex crimes against children who used SNS to gain information about the victim’s likes and dislikes is actually 22%. Also, in a significant majority of those cases, the offenders were not gaining access to details about actual minors, but to data manufactured by undercover officers posing as children online. Thus, North Carolina’s version inflated the number of cases in which offenders explored SNS to access minors’ likes and interests by a factor of four.

Next, the 62% that North Carolina’s brief cited is mistaken on its face; the actual percentage is 65%. But again, the State misquotes what the rate represents. The Online Exploitation Study found that 65% of the cases involving offenders using SNS in cases with identified minors specifically gained information about home or school. As with the other statistical measure, cases involving SNS and identified minors were only a small subset of online arrests. Overall, only 5% of cases of online sex crimes with minors included access to a child’s home or school information through SNS. Hence, North Carolina greatly exaggerated the frequency of offenders using SNS to gain information about home or school in cases of online sexual exploitation. To make matters worse, the lawyer representing North Carolina at oral arguments in February 2017 repeated the same mistakes, erroneously reporting these same two results before the Supreme Court:

[W]e know from studies that about 82 percent of online sex crimes against children, social networking websites were used to gain information about their likes and dislikes. And 62 percent of online sex crimes use . . . social networking websites to gain home and school information. So we know that there’s a very high percentage of these offenders . . . who are using social networking websites to find out information.

Regrettably, these significant overstatements of the prevalence of offenders exploiting SNS could have misled the Supreme Court about the online dangers that registered sex offenders pose.

North Carolina’s brief also ignored an important conclusion from this same study. The researchers reflected that

when considered in the context of the entire spectrum of places online where police are arresting people for illegal sexual intentions, SNSs do not appear to present risk in and of themselves or a greater risk than other online sites where people can meet and interact (e.g., chat rooms). Findings from this article support previous data that suggests the reality about Internet-initiated sex crimes, particularly those in which sex offenders meet juvenile victims online, is different, more complex, and more serious but less archetypically frightening than the publicity about these crimes suggest.

So, while North Carolina’s representatives distorted the statistics, they also ignored this important warning from the same study.

C. The Online Predators Study

North Carolina’s brief additionally attempted to highlight the risk of registered sex offenders by referencing findings from a study titled “Trends in Arrests of ‘Online Predators’” (the Online Predators Study). Researchers with the Crimes Against Children Research Center also conducted this study using data from a survey of law enforcement agencies about arrests during two time periods, roughly 2000 and 2006. The Petitioner’s brief in Packingham filed earlier had used the Online Predators Study results to highlight that 96% of those arrested for soliciting minors online were not registered sex offenders. This result derives from the underlying study’s finding that 4% of online solicitation arrestees were registered sex offenders.

To counter this statistic, North Carolina instead pointed to the finding in the Online Predators Study that the percentage of such arrests involving registered sex offenders actually doubled from 2000 to 2006. North Carolina explained that the increase was not surprising, as registries were in their infancy in 2000 and the percentage increased as more people were registered during that time frame. Oddly, North Carolina’s argument here failed to explain why registered sex offenders are at greater risk considering the significant surge in the number of registered sex offenders as registries ramped up during the same time period might explain the increase. Moreover, North Carolina ignored the researchers’ conclusion in the Online Predators Study. Considering that the percentage of registered sex offenders in the online sex crimes was not more than 4%, the study authors found that these small statistics mean “aiming strategies to prevent online predation at [the] population [of registered sex offenders] may have limited utility because so few online predators are registered sex offenders.”

The Online Predators Study also disavows North Carolina’s claim that the Internet is fueling a wave of sexual exploitation of children. The researchers concluded, “While there was an increase in arrests of offenders using the Internet to seek sex with minors [from 2000 to 2006], there was during the same period a decrease in reports of overall sex offenses against children and adolescents and a decrease in arrests for such crimes.” The researchers further explain:

[T]he facts do not suggest that the Internet is facilitating an epidemic of sex crimes against youth. Rather, increasing arrests for online predation probably reflect increasing rates of youth Internet use, a migration of crime from offline to online venues, and the growth of law enforcement activity against online crimes.

At least the States’ Amicus Brief attempted to specifically address the risk of registered sex offenders in claiming that “[r]egistered sex offenders account for four to five percent of online solicitors of undercover police officers.” The source cited for this statistic in turn referred to three studies. However, none of the three studies actually addressed registered sex offenders. Instead, the three studies found that of the samples investigated, 4%–5% of those arrested for online solicitations had prior sex offense arrests or convictions, not that they were registered. The two groups are not synonymous. Individuals with prior sex offenses may not be registered and those registered might not have been charged or convicted of sex crimes.

The trouble with statistics does not end here. The States’ Amicus Brief attempted to compute the percentage of adult Americans who are registered sex offenders. In what it calls “the States’ math” the brief concluded that one-third of 1% of American adults are registered sex offenders. The States’ math is wrong. It included in the numerator the number of registered sex offenders in the United States. The denominator used the number of adult Americans. The mathematical lapse is that the numerator contains registered sex offenders who are juveniles. Hence, the formula is incorrect, rendering the final percentage also mistaken.

Conclusion

In its amicus brief, an association of sex offender treatment professionals correctly emphasized the “myth of homogeneity” concerning sex offenders. Instead, scientific research indicates “registrants are not a homogenous group of ‘sex offenders’ that should be monolithically managed. Rather, registrants comprise a diverse group of individuals, each different from the next in terms of past criminal history, behavioral patterns, and risk of recidivism.” Further, the experts properly warned that policies that target sex offenders, which are not based on some empirical reality, are unlikely to be effective.

In the end, North Carolina and thirteen other states weighing in as friends of the court in Packingham v. North Carolina offered a troubling version of the scientific evidence in an attempt to support a significant ban on registered sex offenders’ use of SNS. It is not clear if the states’ legal representatives were merely naïve and uneducated on the true science behind the empirical studies they touted. The alternative—that they intentionally tried to mislead the Supreme Court on the risks of sex offenders as a group—would be regrettable for ethical and political reasons. Perhaps fortunately, the Supreme Court was able to render its finding on the unconstitutionality of the North Carolina statue without such questionable evidence of risk.

The case may be momentous for another reason. As Professor Wayne Logan reads the opinion, Packingham “suggest[s] a possible softening of the Court’s customary unequivocal backing of laws imposing harsh sanctions on convicted sex offenders.”

Footnotes