Sex offender registries

Sex offender registries (SORs) are databases of information about persons convicted of sex offenses who have completed their sentences or received probations and now reside in the community. SORs are primarily intended to help law enforcement agencies monitor the whereabouts of known sex offenders, thereby preventing crime as well as providing a pool of suspects for police when a sex crime is reported. Depending on the jurisdiction, access to SORs may be restricted to criminal justice officials or made available, via formal community notification systems (CNSs), to community organizations and the general public to assist in the managing of risk to children and other vulnerable persons. SORS and CNSs are predicated on the notion that sex offenders, more than other kinds of offenders, have an enduring disposition to offend and should, therefore, have stringent restrictions placed on their rights to privacy and freedom of movement. SORs and CNSs reflect intense public concern about the risk of serious harm posed by sex offenders, particularly to the most vulnerable persons in society, such as women and children. These concerns also create strong pressure on politicians of all stripes to respond accordingly to public demands for action.
In 1990, the state of Washington passed its Community Protection Act in response to strong media and public reaction to a repeat child sex offender’s brutal rape and mutilation of a seven-year-old boy. The SOR component of this legislation requires all convicted sex offenders to register with the police upon release from prison; the CNS component requires dissemination of information about registered sex offenders to community organizations and the general public. Who specifically receives information depends on a three-tier system of assessing the degree of risk (high, moderate, and low) posed by individual offenders.
Other states soon followed Washington’s lead. Some states adopted Washington’s systems of tiers of risk; other states treated all sex offenders as a single, high-risk class. Of note is that legislation creating SORs and CNSs took on the names of those child victims that advocates used to mobilize public reaction and governmental response. New Jersey’s Megan’s Law was triggered by the rape and murder of a 7-year-old girl named Megan Kanka. Indiana’s Zachary’s Law, named after a 10-year-old boy murdered by a child molester, established the first SOR that could be accessed by the public via the Internet. Currently over 30 states permit similar online access to SORs.
In 1994, President Bill Clinton sponsored the Jacob Wetterling Act, which required all states to set up SORs or have their criminal justice funding cut by 10 percent. In 1996, this was followed by the federal Megan’s Law, which required all states to create CNSs, and the Pam Lychner Act, which created a national SOR, linking state databases to enable tracking of sex offenders across state lines.
Other countries followed the United States’ lead in establishing SORs but declined to link them to CNSs. In 1997, the United Kingdom passed a civil statute creating a SOR to help police solve sex crimes. In 2000, the Canadian province of Ontario enacted Christopher’s Law. This was followed by federal legislation setting up a national registry (NSOR) in 2004. In Canada’s NSOR, strict rules with regard to access and disclosure currently require law enforcement personnel to meet the thresholds established under Section 16 of the Sex Offender Information Registration Act in order to access the registry and disclose information in it.
British and Canadian police and politicians resisted community notification legislation, arguing that community notification would impede the usefulness of registration as a law enforcement tool because the loss of liberty and privacy and the stigma resulting from community notification would reduce offender compliance with registration requirements. Indeed, unlike some American states, which have compliance rates of less than 50 percent, compliance with registration requirements has recently been estimated to be over 95 percent in the United Kingdom. Officials representing Ontario’s registry and Canada’s NSOR, while not providing published evidence, make similar claims.
While the specific characteristics of SORs and CNSs vary by jurisdiction, most share common features. Offenders convicted of identified sexual offenses, once outside of prison, must initially provide and regularly update information about themselves with local police. When formally authorized, this information can legitimately be disseminated to community organizations and the general public. The information provided can include the following: home and employment contact information; identifying characteristics such as tattoos and scars; the types of offenses that triggered the need to register; personal information such as age, weight, and place of birth; vehicle make and license number; and recent photographs.
The length of time a released sex offender is required to register varies by jurisdiction, offense type, and offender type. Offenders convicted of multiple counts of child molestation may be required to register for life; those convicted of other offenses, depending on their seriousness, may be required to register for shorter, fixed periods of time. An example of how duration of registration relates to the offense can be found in the Canadian NSOR. It requires offenders to register for 10 years, 20 years, or for life, depending on whether the type of offense the offender was convicted for has been classified as less serious, serious, or very serious.
The decision as to whether a sex offender will be subject to registration also depends on the jurisdiction. In the United States, after receiving written notification, offenders who have completed their sentences or are on parole or probation are required to register with local police. In Canada, the decision is made not at the time of release, but rather by the trial judge immediately after the imposition of sentence. In most circumstances, the prosecutor makes a formal request to the court for inclusion in the sex offender registry, and the trial judge then ultimately determines whether the offender will be subject to the registry and for how long the offender will have to register upon release.
Opponents of SORs and CNSs point to the myriad pragmatic and civil libertarian difficulties they pose. Opponents argue that sex offenders who have paid their debt to society should not have additional measures imposed upon them after sentence completion, should not have to share personal information, and should not be subject to any increased police scrutiny that an otherwise “normal” offender would avoid.
Opponents further argue that, even if one accepts that police should have access to sex offender information, the public should not have such access. When any interested person in a jurisdiction with Internet access to its SOR can access a sex offender’s personal information by home computer, constitutionally protected privacy rights have been seriously eroded. A tertiary concern stems from a slippery-slope critique. If society chooses to invade the privacy rights of a particular offender group, what will stop society from invading the privacy of other offender groups? This critique contends that when the rights of one minority group are infringed upon, the rights of all members of society are threatened.
There have been few legal challenges specific to offender privacy and sex offender registries. Most courts have either deferred making a decision in anticipation of future legislation or had their decisions rendered moot by the introduction of newer legislation. The following cases are notable exceptions.
In New Jersey, in Doe v. Poritz, despite a strong dissent, the court held that sex offender registry and community notification does not violate offenders’ privacy rights. In A. A. v. New Jersey, the court limited the scope of the Poritz decision. It held that complete public access to offender information is unconstitutional, and that the offender’s home address must be removed from the community notification website.
In Ontario, in R. v. Burke, the court held that the sex offender registry was a grossly disproportionate violation of privacy for this specific offender. Conversely, in R. v. Ayoob, the court did not find that there was a grossly disproportionate violation of that specific offender’s privacy rights. In both cases, the decision ultimately turned on the criminal record of the offender and the seriousness of the sex offense violation. In December 2005, the Ontario Superior Court of Justice ruled that Ontario’s SOR was constitutional.
The balance between individual privacy and public protection is most difficult to achieve in the case of offenders considered to be dangerous and morally unclean. On the one hand, those who support SORs and CNSs argue that knowing one is being watched deters one from re-offending. On the other hand, critics of
SORs and CNSs are concerned that members of a specifically targeted offender group who have served their time are being denied basic privacy rights that other released offenders would have been granted. Such critics ask how a democratic society can maintain its higher moral authority when one segment of the population has its privacy rights violated, and how the invasion of constitutionally protected civil liberties can be justified when evidence to support its deterrent effect is lacking.