Sex offenders

How sex offenses are defined has varied over time and across cultures. Even today definitions vary across jurisdictions in the United States. The public response to these offenses and to the people who commit them, however, has been more consistent and driven largely by fear, outrage, and a demand for protection. The contemporary political and legal treatment of sex offenders mirrors public opinion, and the result has been to make sex offenders subject to additional limitations on their privacy even after they have served their sentences. This entry will discuss current developments in the criminal justice system in the treatment of sex offenders that expand control over sex offenders in terms of legal processing, treatment options, and integration back into society.
Some states have passed laws that allow for the civil commitment of sex offenders after they have served their criminal sentences. To some legal scholars, these laws are viewed as a resurrection of the sexually violent predator (SVP) legislation enacted during the mid 1900s. The supporting logic in favor of this trend is that some sex offenders tend to have high recidivism rates and are therefore likely to re-offend. In these cases the statutory standards favor public safety over individual rights. Although the need for continued treatment is ostensibly the goal of this legislation, it tends to emphasize an incapacitative objective over rehabilitation. The result is that many sex offenders may be kept under some form of state control indefinitely for the purpose of preventing crimes they “might” commit.
One treatment option that has been adopted by states for use with sex offenders is chemical castration. This treatment involves injection of a synthetic hormone (Depo-Provera), which lowers the blood serum testosterone levels in males. Taken on a regular basis, this hormone reduces sexual impulses, the frequency of erotic fantasy, erections, and ejaculations. Chemical castration has been in use in the treatment of sex offenders since 1944, but at that time it was administered with the informed consent of the individual. Today, chemical castration statutes are different. In 1997 California became the first state to enact a law mandating chemical castration for twice-convicted sex offenders whose victims were under the age of 13. Chemical injections begin prior to release on parole and are continued while the offender is under community supervision. If the offender refuses, parole is denied.
Fundamental rights of privacy and procreation are at issue when mandatory Depo-Provera injections are imposed. Privacy concerns arise because the individual’s right to control his own person and the right to refuse treatment are compromised. The right to privacy and bodily autonomy also extends to the right of an individual to make procreative decisions. The effects of Depo-Provera that result in a reduction of sperm production are believed to be temporary and reversible when injections stop. The sex offender in temporary treatment of this kind still has the ability to engage in sex and procreate. For sex offenders who are sentenced to lifetime injections, however, the right to procreate may be denied permanently. Bolstering this argument is the lack of understanding about the long-term side effects of Depo-Provera on sexual performance and potency. There are cases in the California court system that oppose the use of mandatory organic treatment for offenders. Groups such as the American Civil Liberties Union (ACLU) are challenging chemical castration by comparing it to mandatory sterilization, which was declared unconstitutional in Skinner vs. Oklahoma (1942).
In 1994 the abduction of an 11-year-old boy in Minnesota prompted Congress to pass a law mandating that all 50 states create sex offender registries with local law enforcement agencies so that an offender’s current residence can be identified (Jacob Wetterling Crime Against Children and Sexually Violent Offender Registration Act, 1994). After another tragic episode involving the murder of Megan Kanka in New Jersey by a previously convicted child molester, Megan’s Law was added to the Wetterling Law in 1996. According to this law, states are mandated to have procedures in place to inform the public about sex offenders who live in their communities. The rationale for community notification is that public safety, especially the protection of children, will be enhanced if the community has knowledge about the presence of convicted sex offenders residing in the neighborhood. Even juvenile sex offenders, whose privacy is usually well guarded by the criminal justice community, can be subject to sex offender registration.
In a review of notification laws in all 50 states, research has found that notification methods commonly include press releases, flyers, door-to-door contact, neighborhood meetings, and the use of Internet websites. About half of the states assign offenders to one of three risk levels and notify the public differentially according to the risk an offender poses to the community. Other states employ broad community notification, publicizing the locations of all sex offenders without regard for risk assessment. Legal scholars have argued that using the Internet to provide public notification of sex offenders when a dangerousness hearing has not occurred is a privacy violation, but the courts thus far have largely rejected this claim.
In cases involving sex offenders, much of the current legislation tends to favor the need for public safety over the privacy standard the supports the right to be left alone. Another privacy standard affecting this group involves the right to control information about oneself. The challenge here has focused on the release of information about offenders and how that information might be used.
The type of information collected on sex offenders varies, but at a minimum includes the offender’s name, address, and law enforcement identification number. In some states this information can also include a photograph, fingerprints, handwriting samples, employment information, residence history, vehicle registration numbers, HIV status, and DNA samples. Considering the potential for its misuse, the ease with which some of this personal information can be accessed by the public is a major concern relating to sex offenders’ privacy.
Several states’ sex offender registries are made available to the public through toll-free and pay phone lines, CD-ROMS, or the Internet so as to the meet community notification mandates set forth in Megan’s Law, but private citizens who take it upon themselves to notify communities have been known to obtain lists of registered sex offenders and post them on the Internet without the endorsement of law enforcement. Understanding the potential for the misuse of sex offenders’ personal information, some states have taken added measures to ensure its proper use. For example, the Sex Offender Registry Board of the Commonwealth of Massachusetts requires users of its Internet registry to acknowledge and accept an agreement regarding the appropriate use of information before accessing details of level 3 (high-risk) sex offenders. Specifically, the registry viewer must agree not to use the information to commit a crime, discriminate against, or harass an offender. The penalty for breaching the agreement involves a fine, incarceration, or a combination of both. Once the registry is accessed, users can obtain a sex offender’s full name, age, race, sex, height, weight, hair color, eye color, exact address, the number and types of sex offenses that he or she has been convicted of, the date of con-viction(s), a color photograph of the offender, and information pertinent to whether the offender lives or works in the area.
Technology has played a dual role in contemporary issues surrounding sex offending. While the Internet has opened up a whole new hunting ground for sexual predators and created new potential for non-forcible sex offenses against children, it has also played an instrumental role in disseminating offender information to law enforcement agents and communities under the guiding principle of public safety. As of February 2001, 29 states had publicly accessible Internet sites that contained searchable information on individual sex offenders.
In addition to the creation of sex offender registries, federal legislation also permits DNA testing and the collection of samples from sex offenders for identification purposes. The DNA Analysis Backlog Elimination Act of 2000 grants authority to the attorney general to require sex offenders convicted in federal courts to provide DNA samples for inclusion in the Federal Bureau of Investigation (FBI)’s Combined DNA Index System (CODIS). Twenty-two states report that they collect and maintain DNA samples as a required part of sex offender registration, while 19 additional states report limited or no collection of DNA samples. This information is often collected along with other identifying information such as fingerprints and handwriting samples, which can then be used either to link a sex offender to future crimes or to crimes that have taken place in the past.
Other laws such as buffer-zone laws restrict where a sex offender can live and are used in some form by as many as 14 states. Most of these laws prohibit sex offenders from living within a specified radius around schools and day-care centers, but some buffer-zone laws are so strict that they also prohibit sex offenders from taking up residence near parks, playgrounds, trails, swimming pools, libraries, churches, bus stops, and any other place where children usually gather. The radii within which sex offenders are prohibited from living vary but can range anywhere from 1000 to 2500 feet. In some cases this means that entire cities and towns are off limits to sex offenders, and that sex offenders who already live within restricted areas can be evicted and forced out of their homes.
The long-term effects of these trends on the treatment of sex offenders and the protection of the public have are not yet fully understood, and many issues remain to be examined. The limited research that does exist suggests that some offenders have experienced loss of jobs, homes, property damage, and harassment. One of positive aspects of notification laws according to offenders is an increased commitment to prevent re-offending.
The logistic demands of implementing these laws are also at issue, which should factor into the continued balance between public safety and individual freedom. An overreliance on these laws may not afford the protection hoped for by the public. For example, findings from several studies demonstrate that buffer-zone laws fail to cause reductions in sex offense recidivism. Moreover, the underlying premise for buffer-zone laws appears to be unfounded because sex offenders who live near places where children usually gather, such as schools or parks, are no more likely to re-offend than are sex offenders who do not live near children.