Public Interest Advocacy

Sex Offender Laws That Do Not Protect Children

Posted In Criminal Law

Simplified man Stop You on a No SignIt is not often that I use “California” and “sensible policy” in the same sentence, but the California Supreme Court has issued a ground-breaking (and sensible) decision invalidating restrictions on where sex offenders can live. The court reviewed “Jessica’s Law,” a statute prohibiting any registered sex offender from residing within 2,000 feet of “any public or private school, or park where children regularly gather.”  The plaintiffs did not challenge the statue on its face, but only the state’s blanket application of it to registered sex offenders on parole. The court found that one-size-fits-all application to be unconstitutional, but noted that the state retains the authority, based on other statutes, to fashion special parole conditions for sex offenders.

Contrary to some claims, this decision is not a setback for child abuse prevention, simply because residency-based restrictions do not prevent child abuse. As Dr. David Finkelhor, one of the giants in the field of child abuse prevention, wrote in 2009, restrictions on where sex offenders live “have been adopted without any evidence about their efficacy.” Furthermore, “[t]he logic model behind these restrictions appears fundamentally flawed, given that most sexual abuse occurs within established family and social networks and also that motivated offenders, wherever they happen to live, can go where they wish in search of victims.”

The stories of the four plaintiffs who brought the California suit illustrate the overly broad nature of the restriction. Two of them were convicted of sexual assault on an adult, not a red flag for pedophiles. A third was convicted of molesting his 10-year-old sister when he was 15 years old. As Dr. Finkelhor noted, “[Generally] young offenders also are not pedophiles, but include a mixed group of generally delinquent youth and youth who engage in somewhat impulsive, developmentally transitory behavior.” (Emphasis added). Transitory behavior, by definition, will change, and does not warrant a lifetime ban.

Only the fourth plaintiff might conceivably qualify as a pedophile, because the victim was under the age of 14. However the victim was her daughter, and, like the vast majority of sexual abuse, the crime occurred inside the family home. For those cases, restriction from a school or park does nothing to protect children.

Indeed, most sex offender registries sweep so broadly that they completely lose sight of the supposed purpose, namely to protect children. Some states, for example, classify peeing in public as a sexual offense, while others require registration for adult prostitution offenses, and still others penalize teenagers who send nude pictures of themselves or friends from their cell phones. All of these actions may be socially unacceptable, but classifying those people as sex offenders does absolutely nothing to protect children.

These sort of restrictions, and to some degree the very idea of sex offender registries, offer a classic case study in how we over-criminalize behavior. They sweep far beyond their stated purpose, they have no support in any mental health or other research, and they allow overworked and undertrained government officials to make unreviewable decisions. If we truly want to protect children, we should first stop wasting resources on useless feel-good policies.

Hat tip: Courthouse News Service

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