Sex offenders1 have been subject to unprecedented restrictions and punishment. The government’s treatment of sex offenders is a clear example of the dangers of laws derived from and upheld because of the emotion of disgust. Disgust has led to a dehumanization of this category of people, which has led to a stripping of their constitutional rights. The law’s treatment of sex offenders is a clear example of why the law should eschew employing the emotion of disgust during all proceedings. In addition, the courts’, particularly the Supreme Court’s, treatment of the other branches’ actions regarding sex offenders is illustrative of why the law needs to insist upon empirical data in support of legislation and why the courts should not always defer to the other branches’ findings.
Currently, a sex crime can include rape, statutory rape, fondling, coercive and noncoercive acts between adults and minors, consensual sex between adults in public, public exposure, public urination, and, until Lawrence v Texas,“sodomy” between two consenting adults.2 Many sex offenders are juveniles.3 After the medicalization of “sexual deviance” in the 1950s, “treatments” for sexual deviance included group therapy, electroshock, and frontal lobotomy.4 Since the 1990s, criminal sex offenders5 have been placed under increasing restrictions, to be met after they have served their criminal sentences, such as civil confinement, registration requirements, residency restrictions, GPS tracking, and chemical castration.6 Some communities have barred sex offenders from hurricane shelters,7 and some jurisdictions bar sex offenders from using a computer.8
The current slate of sex offender laws has created a “permanent pariah class of uprooted criminal outcasts”9 whose members have been progressively stripped of their rights. This has happened through democratic means, through the making of exceptions for this category of persons. Double jeopardy, ex post facto, equal protection, and due process claims against statutes aimed at sex offenders have mostly failed. The main three types of statutes I will focus on are registration and notification requirements, civil commitment statutes, and residency restrictions.
Title I of the Adam Walsh Act is the Sex Offender Registration and Notification Act (SORNA; also known as “Megan’s Law”), which requires states to maintain an online registry of sex offenders.10 The retroactive application of state registration laws has been challenged on ex post facto and double jeopardy grounds. The Supreme Court, however, upheld Alaska’s registry law, finding that the legislature did not intend the registry as “punishment.”11
In addition, nineteen states, the District of Columbia, and the federal government have all enacted "sexually violent predator” statutes that allow for the civil commitment of sex offenders after they have served their prison terms.12 The vast majority of sex offenders appears to be held more or less permanently.13 The constitutionality of such statutes was upheld by the Supreme Court, which again found there was no proof of a legislative desire to punish, nor any such effect.14
Last, several states have residency restriction requirements. For instance, in California, sex offenders may not live within 2,000 feet of any public or private school or “park where children regularly gather.”15 At least 30 states have enacted such laws, and the result for sex offenders has been banishment from cities and states and, often, homelessness.16 Despite the obvious punitive nature of the laws, the courts have mostly supported them. The California Supreme Court upheld the law against substantive due process, privacy, and ex post facto challenges.17 Similarly, the Eighth Circuit upheld Iowa’s residency law, deferring to the state legislature’s authority to make judgments about the best means to protect the welfare of its citizens and finding no evidence that the act was meant to punish.18
III. Risk assessments and emotions
A. Actual risk and effective prevention
The unusually severe sex offender laws have grown out of the public’s perception, and that of Congress, that there is a grave risk to children posed by strangers out to rape and kidnap our children and that such strangers usually re-offend.19 In contrast to this, however, are the data that show most sex offenses are committed by those close to the victim, not strangers, and that few offenders re-offend. In reality roughly 4 percent of cases of sexual abuse against children under twelve were perpetrated by strangers, compared to 50 percent by acquaintances and 46 percent by family members.20 One federal study found that only 5.3 percent of all sex offenders released from prison are re-arrested for a sex offense within 3 years of their release.21 Meanwhile, same-crime recidivism for burglary is 31.9 percent; for larceny, 33.5 percent;
and for drugs, 24.8 percent.22 Although it could be argued that this low recidivism rate could be linked to the extreme measures taken to track, banish, and stigmatize sex offenders, the data do not show this (see below). It also must be pointed out that the 5.3 percent comprises the sex offenders who re-offend by perpetuating a sex crime against a stranger, which presumably is a very small fraction based on first-time offenses. ..Continued.. by Alexandra Stupple