Rethinking “Sex Crimes” and Sex Offender Registries

The Economist magazine has just released an important feature article entitled, “Sex Laws: Unjust and Ineffective.” In an indirect way, the article makes a point that I have been trying to get across in my work on this issue: If you want to keep your kids safe from real sex offenders, we need to scrap our current sex offender registries and completely rethink the way we define and punish sex offenses in this country. That’s because, currently, a significant percentage of those people listed in sex offender registries pose almost no threat to children, making it difficult for us to know who really does pose a threat to our kids and what we should do about them.

Simply stated, we’ve dumbed-down the notion of “sex crimes” in this country. As a nation, we have foolishly come to equate almost all sex offenses equally. While sex offender registry laws vary from state to state, many basically say that that two teens caught engaging in consensual oral sex in high school belong on the same list alongside child rapists. That is insanity. And it leaves many in the public, especially parents, thinking that the whole world is full of predators lurking on every corner just waiting to snatch, rape, and kill their children. [For the actual facts, see the appendix I have included down below: “Is America Suffering from a National Child Abduction Epidemic”?] In reality, as The Economist feature story points out, the truth is quite different:

Every American state keeps a register of sex offenders. California has had one since 1947, but most states started theirs in the 1990s. Many people assume that anyone listed on a sex-offender registry must be a rapist or a child molester. But most states spread the net much more widely. A report by Sarah Tofte of Human Rights Watch, a pressure group, found that at least five states required men to register if they were caught visiting prostitutes. At least 13 required it for urinating in public (in two of which, only if a child was present). No fewer than 29 states required registration for teenagers who had consensual sex with another teenager. And 32 states registered flashers and streakers. Because so many offences require registration, the number of registered sex offenders in America has exploded. As of December last year, there were 674,000 of them, according to the National Centre for Missing and Exploited Children. If they were all crammed into a single state, it would be more populous than Wyoming, Vermont or North Dakota. As a share of its population, America registers more than four times as many people as Britain, which is unusually harsh on sex offenders. America’s registers keep swelling, not least because in 17 states, registration is for life.

Georgia has more than 17,000 registered sex offenders. Some are highly dangerous. But many are not. And it is fiendishly hard for anyone browsing the registry to tell the one from the other. The Georgia Sex Offender Registration Review Board, an official body, assessed a sample of offenders on the registry last year and concluded that 65% of them posed little threat. Another 30% were potentially threatening, and 5% were clearly dangerous. The board recommended that the first group be allowed to live and work wherever they liked. The second group could reasonably be barred from living or working in certain places, said the board, and the third group should be subject to tight restrictions and a lifetime of monitoring. A very small number “just over 100” are classified as “predators”, which means they have a compulsion to commit sex offences. When not in jail, predators must wear ankle bracelets that track where they are.

Let’s repeat a few key numbers here: 674,000 registered offenders, “more populous than Wyoming, Vermont or North Dakota.” Those are the kind of numbers that send sensationalistic media outlets and average parents alike into a tizzy. Rarely does anyone stop to ask what those numbers mean or who these people are on the sex offender registries. But, as The Economist notes, when you dig below the surface and start taking a serious look at who these people are and what they have done to land on the list, a very different story emerges. We’re polluting these lists with petty offenders (flashers and streakers) and people who should have been dealt with in different ways (like teens who were caught in the act).

What about the real bad guys? As the Georgia Review Board found, only 5% of those on their sex offender registry were “clearly dangerous” and “should be subject to tight restrictions and a lifetime of monitoring.” These would be your true scum of the Earth; the sick fiends who really have preyed on children or raped repeatedly. Here’s a question I want answered about these scum: Why do we need a sex offender registry for them at all? Why are they not behind bars for life? Why don’t we cut off their privates! I am deadly serious here. If anyone raped one of my children, I would go after him and snip his manhood myself… slowly… with a dull, rusty blade. Any yet we release these people to re-offend. And then we put them on a list. A list that had teens on it who made a stupid mistake in high school in the back of car and got caught. DOES THIS MAKE ANY DAMN SENSE??? (And yes, I am shouting when I use all caps! Because I am sick and tired of this nonsense.)

Here is the sobering fact to consider: a 2003 Department of Justice study reported that the average sentence for child molesters was approximately seven years and, on average, they were released after serving just three of those seven years. That is an extremely troubling statistic. If you have young children in your home, it is even more upsetting. When our government is putting people who viciously hurt innocent children behind bars for just seven years and then letting them out after only three, then our government has failed us at a very fundamental level.

Worse yet, policymakers then point fingers at everyone else and scold Internet companies and ISPs for not doing enough to protect children from predators, all the while conveniently ignoring the government’s own failed policies that allow those predators to be on the streets and behind keyboards in the first place! It is not “market failure” at work when child predators are lurking online; it is government failure in the extreme. We are never going to solve this problem until we hunt down the real bad guys and lock them up for a long, long time.

In the meantime, however, as Lenore Skenazy argues, parents might want to just “burn your sex offender maps” because they instill a sense of dread and panic in us about the world around us based simply on the large number of people on them — even though they tell you little about who is an actual threat to your child. I have parents in my neighborhood who tell me they won’t let their kids ride their bike down the sidewalks in our very safe and fairly affluent neighborhood in McLean, Virgina because they have heard there are sex offenders in the area. I ask them if they have ever examined those “offenders” to see what they are on the list for. They haven’t bothered. I have. Not one of the sex offenders in my area had anything to with sex crimes against children. Strangely, most of the sex offenders in my area are listed as just being convicted of “sodomy.” I always wonder, was that consensual sodomy that occurred when it was still a crime in Virginia? (That is, before the Supreme Court struck down such laws in the 2003 case of Lawrence v. Texas). If so, that’s not a crime in my book and those people do not belong on any sex offender list. Of course, if it was actual rape, that’s a very serious crime and it deserves conviction. Either way, these are not sex crimes against children even though that’s the impression many parents have when parents see or hear about these sex offender registries. So, when only a small percentage of those on the lists are the ones we truly need to fear (the child molesters and rapists), isn’t there a better solution? Like: LOCK THEM UP AND THROW AWAY THE KEY! Or, if we are not going to do that, at least create a separate registry for these more serious offenders. Call it the “Scum of the Earth List” and make these people were bright neon monitoring bracelets and anklets so we can see them.

At a minimum, we need follow the advice Human Rights Watch has set forth, as The Economist summarizes:

Human Rights Watch urges America to scale back its sex-offender registries. Those convicted of minor, non-violent offences should not be required to register, says Ms Tofte. Nor should juveniles. Sex offenders should be individually assessed, and only those judged likely to rape someone or abuse a child should be registered. Such decisions should be regularly reviewed and offenders who are rehabilitated (or who grow too old to reoffend) should be removed from the registry. The information on sex-offender registries should be held by the police, not published online, says Ms Tofte, and released “on a need-to-know basis”. Blanket bans on all sex offenders living and working in certain areas should be abolished. Instead, it makes sense for the most dangerous offenders sometimes to face tailored restrictions as a condition of parole.

To clarify my own views: I think lists of serious sex offenders (again, if we aren’t locking them up for longer periods) should be made public, but the lesser offenses (like cases of consensual teen sex in high school) should be kept private so it doesn’t stigmatize those people for life and drive the average public batty in the meantime.

We need to bring some sanity back to America’s sex laws. And we need to do if for the children. Our kids are not going to be safer (or saner) by artificially inflating sex offender rolls with people who don’t belong on the list in the first place. That just leads to fear, confusion, and a misplaced sense of justice. We need to punish the true scum more aggressively, and then find more sensible approaches to deal with others. And let’s get out of the business of putting teenagers on these lists altogether. That’s just nuts.

A final reason I care deeply about setting things right on this front is because concerns about online child safety — and overblown fears about child predators in particular — are leading to many calls for increased Internet regulation. Down below, I have pasted in an excerpt from my “Parental Controls & Online Child Protection” report in which I explain why this “technopanic” mentality about kids and the Internet is unwarranted.

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Appendix: Is America Suffering from a National Child Abduction Epidemic?

[excerpt from “Parental Controls & Online Child Protection,” by Adam Thierer, PFF, ver. 4.0, 2009.]

Debates about online child safety are often driven by fear — fear of bad guys lurking online and waiting to snatch up our children. Indeed, there have been a handful of highly publicized cases of minors being contacted and later abducted or abused by child predators on social networking sites.[1] Such cases do not mean that a national epidemic of Internet-related child abductions is occurring, however. The reality is quite different. As Internet safety expert Larry Magid has noted:

Contrary to what some people might imply, most kids who become victims of online sex predators are not abducted. They are lured after being groomed by their predators. And, though any case is tragic, the fact is that such crimes are relatively rare considering the millions of children and teens that go online every day. Despite thousands of arrests of would-be predators caught up in sting operations, tragic cases like this don’t appear to occur very often.[2]

Indeed, generally speaking, abductions by strangers “represent an extremely small portion of all missing children [cases].” That conclusion was a central finding of the 2002 National Incidence Studies of Missing, Abducted, Runaway, and Thrownaway Children (NISMART), a study conducted by the Department of Justice’s Office of Juvenile Justice and Delinquency Prevention.[3] Although the survey is several years old and suffers from some data and methodological deficiencies, it remains the most comprehensive survey of missing and abducted children in the United States.

The NISMART survey broke down juvenile abductions into two categories—family versus non-family. It found that the vast majority of kidnapping victims were abducted by family, friends of the family, or people who had a close relationships with (or the trust of) the minors. Only 115 of the estimated 260,000 abductions—or less than a tenth of a percent—fit the stereotypical abduction scenario that parents most fear: complete strangers snatching children and transporting them miles away.[4] And Lenore Skenazy, author of Free-Range Kids: Giving Our Children the Freedom We Had Without Going Nuts with Worry, notes that, “the chances of any one American child being kidnapped and killed by a stranger are almost infinitesimally small: .00007 percent.”[5]

Despite those findings, public policy debates and media reports remain preoccupied with the horror stories about abductions by random strangers, leaving the impression that the problem is much larger than the more serious issues of family or acquaintance abductions.[6]

Research has shown that this conclusion is also true of child abuse and sex offenders in general, not just abductions. As psychologist Anna C. Salter, author of Predators: Pedophiles, Rapists, and Other Sex Offenders, points out, “[Sex offenders] are part of our communities, part of our network of friends, worse yet, sometimes part of our families.”[7] And former FBI special agent Kenneth V. Lanning, author of Child Molesters: A Behavior Analysis, notes the following:

The often forgotten piece in the puzzle of the sexual victimization of children is acquaintance molestation. This seems to be the most difficult manifestation of the problem for society and the law to face. People seem more willing to accept a sinister stranger from a different location or father/stepfather from a different socioeconomic background as a child molester than a clergy member, next-door neighbor, law-enforcement officer, pediatrician, teacher, or volunteer with direct access to children. The acquaintance molester, by definition, is one of us. He is not just an external threat. We cannot easily distinguish him from us or identify him by physical traits. These kinds of molesters have always existed, but society and the criminal-justice system have been reluctant to accept the reality of these cases.[8]

Clearly, the problem of family and acquaintance abductions and sex abuse predated the rise of the Internet, and it will unlikely be diminished by age verification of minors on social networking websites or other websites. But the argument could be made that abductions by strangers — while exceedingly rare — could be reduced even further by age-verifying minors or adults before they enter certain sites.

This potential reduction may be true, but it is important to remember that predators can’t magically reach through a computer screen and grab our kids. Predators must meet them somewhere in the physical world (i.e., a mall, park, playground, etc.). The danger of the Internet is that it allows predators to groom minors over a protracted period, while doing so from a distance. However, the fact that they are doing so from a distance—and over electronic communications networks, no less—means we have actually gained some important advantages in our effort to combat child predation. Many of the predators leave digital tracks for us to follow. Thus, to the extent that disturbing things are happening online or being facilitated by the Internet in any fashion, at least there is a digital record of those activities or crimes. The electronic tracks have made it easier to recover children or to track perpetrators on many occasions.[9]

Of course, digital records have also made it easier to catch minors engaging in foolish behavior after they post information or photos about their actions online.[10] In past generations, parents often warned their kids to behave themselves in public or else “it will go down on your permanent record.” It was largely just a scare tactic, because there really was no permanent record of the mundane activities of youth. Today, however—for better or for worse—the Internet is becoming “your permanent record.” No doubt, this raises some serious, long-term privacy concerns, but the one positive aspect is that the existence of electronic records makes it easier for parents, website operators, or law enforcement officials to deal with online troublemakers of all varieties.[11] That is why education is essential to make sure both kids and their parents understand that serious consequences are associated with what they post online.

[1] Claire Osborn, Teen, Mom Sue MySpace.com for $30 Million, Austin American-Statesman, June 20, 2006.

[2] Larry Magid, Abductions by Online Predators Rare, San Jose Mercury News, Oct. 22, 2007, www.connectsafely.org/articles–advice/commentaries—staff/abduction-by-online-predators-rare.html

[3] Andrea J. Sedlak, David Finkelhor, Heather Hammer, and Dana J. Schultz, National Estimate of Missing Children: An Overview, National Incidence Studies of Missing, Abducted, Runaway, and Thrownaway Children (NISMART), Oct. 2002, at 7, www.missingkids.com/en_US/documents/nismart2_overview.pdf

[4] A recent study of cases about missing children in Ohio revealed a similar trend. Of the 11,074 documented missing child cases in 2005, only five involved abduction by strangers compared with 146 abductions by family members. Ohio Missing Children Clearinghouse, 2005 Annual Report, at 4; www.ag.state.oh.us/victim/pubs/2005ann_rept_mcc.pdf

[5] Lenore Skenazy, Free-Range Kids: Giving Our Children the Freedom We Had Without Going Nuts with Worry (San Francisco, CA: Jossey-Bass, 2009), at 16.

[6] Indeed, one recent study suggests that perception has replaced reality in the minds of many in the press and general public, who have increasingly come to believe that stranger abductions account for most missing child incidents. A 2006 analysis of New York Times articles about kidnappings, by Glenn W. Muschert, Melissa Young-Spillers, & Dawn Carr in the Justice Policy Journal, argued that “the Times disproportionately focuses on stereotypical kidnapping incidents, while social science data suggest that familial abductions are far more prevalent.” And abduction estimates made by some activists were also “highly exaggerated,” they found. Unsurprisingly, for those reasons, the authors note that various public opinion polls have revealed that most people believed that abductions by strangers accounted for most missing child cases even though the exact opposite was true. Glenn W. Muschert, Melissa Young-Spillers, & Dawn Carr, 3 Justice Policy Journal, No. 2, Fall 2006, at 4-6.

[7] “Sex offenders only very rarely sneak into a house in the middle of the night. More often they come through the front door in the day, as friends and neighbors, as Boy Scout leaders, priests, principals, teachers, doctors, and coaches. They are invited into our homes time after time, and we give them permission to take our children on the overnight camping trip, the basketball game, or down to the Salvation Army post for youth activities.” Anna C. Salter, Predators: Pedophiles, Rapists, and Other Sex Offenders (New York: Basic Books, 2003), at 5, 76.

[8] Kenneth V. Lanning, National Center for Missing & Exploited Children, Child Molesters: A Behavior Analysis, 2001, www.missingkids.com/missingkids/servlet/ResourceServlet?LanguageCountry=en_US&Pageid=469

[9] See Mark Sherman, Chat Rooms Help FBI Hunt for Pedophiles, USA Today, May 15, 2006, www.usatoday.com/tech/news/2006-05-15-fbi-chat-rooms_x.htm

[10] Wendy Davis, Teens’ Online Postings Are New Tool for Police, Boston Globe, May 15, 2006, www.boston.com/news/nation/articles/2006/05/15/teens_online_postings_are_new_tool_for_police; Andrew L. Wang, “Teen Blog Watch is On,” Chicago Tribune, May 23, 2006.

[11] Eric Tucker, Police Departments Turning to YouTube to Catch Suspects, Boston Globe, Feb. 24, 2007, www.boston.com/news/local/rhode_island/articles/2007/02/24/police_departments_turning_to_youtube_to_catch_suspects