Thursday, February 3, 2022

Sex offender registries and juvenile offenders

Elizabeth Letoureau and Luke Malone write at Slate:

It’s hard not to get emotional about child sexual abuse. The thought of anyone hurting a child in this way is so egregious that it’s no wonder society has thrown its support behind a robust criminal justice response, including lengthy prison sentences and the registration and public notification of people convicted of this type of sex crime.

But what happens when the perpetrator of child sexual abuse is also a child?

This isn’t a thought experiment. In the United States, up to 70 percent of sexual offenses against children are perpetrated by other children, typically a slightly older relative or playmate who offends in the context of ignorance, impulsivity, and convenience, not predation. Many states subject these kids to the same criminal consequences as adults who have been convicted of sex crimes; the most impactful of which can be registration and public notification, which typically lasts for decades or life, depending upon the conviction or adjudication offense.

The problem is registration and notification don’t work. All published research evaluating juvenile registration has found that these policies fail to improve community safety in any way. Studies informed by tens of thousands of cases examined whether putting kids on the registry reduces sexual recidivism—it does not; or violent recidivism—it does not; or nonviolent recidivism—it does not; or deters first-time sex crimes—it does not. What registration does is place substantial barriers in front of kids and make it less likely they will succeed. Which is why the American Law Institute is set to suggest a radical change to the nation’s sex crime laws.

In March, the Council of the American Law Institute will meet to vote on revisions to the Model Penal Code, which include recommendations that will make it all but impossible to register children for sexual offenses. This comes after the ALI postponed a January vote to formally accept the revisions, following fierce pushback from national law enforcement advocates, who are largely basing their opposition on the tug of emotion and not reasoned outcomes. We strongly encourage the Council to move forward with the sorely needed proposed changes when it meets again in March.

You may not have heard of the Model Penal Code, but it affects most of our lives. It was first published by the American Law Institute—an independent organization of thousands of lawyers, judges, and scholars—in 1962, with the goal of encouraging U.S. states to standardize their criminal codes. Though not legally binding, the Model Penal Code was hugely influential, with a majority of states adopting it wholly or in part. The current revision, almost a decade in the making, will guide states to update their laws based on knowledge that we’ve acquired over the past 60 years.

The proposed revision recommends limiting the convictions that trigger registration to the most serious sex crimes (some states currently place public urinators and streakers at sports events on the registry); eliminating unrestricted public notification of registrants and returning to the original intent of the law as a tool for law enforcement; and capping the maximum registration period to 15 years, in the absence of new sex crimes. Crucially, the revised code recommends ending the practice of placing children on registries, except in rare cases of youth convicted in adult court of violent sex crimes committed at age 16 or older.

The number of people currently on sex offense registries for crimes they committed as children is murky. Estimates range from tens of thousands to hundreds of thousands. States don’t publicize full data sets on registered people and our repeated requests have resulted in bureaucratic brick walls in almost all instances. We do know that the number is high and that many individuals are under 18 at the time of registration—we’ve placed kids as young as nine on registries in this country.

We also know that registration reliably and predictably harms children. Research by the Moore Center for the Prevention of Child Sexual Abuse found that, relative to children with sexual offenses who are not registered, kids on the registry were four times more likely to have attempted suicide, five times more likely to have been approached by adults for sex, and twice as likely to have been sexually assaulted. Likewise, a Human Rights Watch report found that more than half of registered children experienced violence or the threat of violence, including having guns held to their heads by strangers, being beaten, shot at, and having Molotov cocktails thrown into their homes. So, a policy intended to prevent child sexual abuse is instead associated with increased risk of sexual and violent victimization of children.

This is not what the principal architect of the sex offense registry had in mind. Patty Wetterling began advocating for nationwide sex offense registration after her 11-year-old son Jacob was abducted by a masked gunman in Minnesota in 1989. Jacob was missing for 27 years, until his remains were discovered buried in a field 30 miles from the family home. In 1994, thanks to Patty’s tireless efforts, President Bill Clinton signed the Jacob Wetterling Act—the first federal law requiring states to register people convicted of serious sex crimes. It was originally designed as a tool to help law enforcement keep track of dangerous adults, but Wetterling watched as the goal posts changed and the Wetterling Act was expanded to include community notification and the registration of children.

“People would call me and they would be very proud that they had kids as young as 10 on their sex offender registry, and I’m like, ‘No, that’s not what it was for,’” she said, adding that we shouldn’t even be referring to children as juvenile sex offenders. “They are kids. The terminology is all wrong because that throws them into the same pot as the man that kidnapped and murdered Jacob. It’s not fair.”

Wetterling has since gotten to know several families whose children have been placed on sex offense registries and witnessed firsthand the unintended consequences. She told us she feels a heavy responsibility for how things have turned out and would welcome an update to the law she helped create.

“You can’t just pass something in 1994 and never revisit it,” she said. “What I’ve watched over the years is that all the elected leaders want to look tough on crime, so they keep making it more stringent instead of evaluating what’s working and what needs to be changed.”

This is precisely what the American Law Institute has done. It reviewed decades of research, interviewed numerous experts, and arrived at thoughtful and empirically-based policy recommendations. But not everyone is happy. The ALI had originally planned to give its final approval to the revisions at a Council meeting in mid-January. However, in the days leading up to the vote it received letters opposing the empirically-based recommended changes from important stakeholders: the U.S. Department of Justice (which oversees states’ and other jurisdictions’ compliance with federal registration requirements), the National Association of State Attorneys General, and the National Center for Missing and Exploited Children. The letters mostly take aim at the provisions around sex trafficking and the denial of public access to sex offense registries, with the proposed exclusion of children from registration mentioned only in passing—though the National Association of Attorneys General explicitly cite the recommendation to abolish most juvenile registration as a “grave concern.”

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