So, I was on /r/news and I came upon a truly disturbing news story:
A 14-year-old junior high student is facing the possibility of life as a registered sex offender after being arrested for having sex with his 12-year-old girlfriend, according to his attorney.
The teen, who was in seventh grade, is charged with aggravated sexual assault of a child. His girlfriend was a sixth-grader at the time.
“He had consensual sex with his little girlfriend and he loved her. They were boyfriend-girlfriend,” the teen’s mother told the Chronicle. “And because he turned 14, they want to make him a sex offender, put him on the registry with pedophiles and child molesters—really sick and dangerous people.”
But in Texas that does not apply if one of the parties is under 14.
“The idea that a 14-year-old who has sex with a person just a little bit younger then him or her would be treated as the worst of the worst in our society and placed on the sex offender registry is really sick,” said the teen’s attorney, Joseph Gutheinz. He spoke about the case on the condition that his client not be identified.
The Harris County District Attorney’s Office did not return calls for comment.
The case illustrates the gray area of criminal responsibility for teens having sex before they are legally able to consent at the age of 17.
Gutheinz said the injustice is that the same 14-year-old who is now a defendant, would not have been charged if the teens were the same age. And he would be considered the victim if the other person was 18 or older, he said.
“If he has sex with someone who is younger by just days but is still 13 years old, he could be charged with one of the most serious offenses we have,” he said. “It just blows my mind.”
He said the discrepancy thwarts the intent of the law.
“It defeats the whole purpose of the Romeo and Juliet defense where you have two people relatively close in age and maturity,” he said. “You would think the law would be more sympathetic as you go younger, because both parties are immature.”
The teen’s mother said her family “is going through hell.”
“Because he was 14 by two months, they want to ruin his life,” she said. “What kind of life is he going to have if he’s a sex offender?”
Experts said charges being filed for a consensual sexual relationship between minors is not unusual in Harris County, even for teens and tweens.
“I had that exact fact pattern that I fought for a year,” said Jackie Stewart Gravois, an attorney with the Harris County Public Defender’s Office. “They ended up dismissing it because, ultimately, everyone agreed it was a consensual act.”
In her case, the two students were also in junior high and he was 14 and she was 12. After prosecutors were assured that there was no violence or threat of force, it was dismissed.
She said similar cases seem to be on the rise over the past few years.
Gravois was not familiar with the teen’s legal battle and spoke generally about those types of cases.
“Usually, if the prosecutors can prove that it was consensual and it was not forced in any way, they typically don’t file these cases or they end up dismissing them,” she said. “That’s going to be up to the discretion of the prosecutor.”
She noted that Harris County’s juvenile judges have wide discretion over whether a teen will have to register as a sex offender.
“Very rarely do the juvenile judges in Harris County force anyone to register,” she said. “They usually delay it and send them to sex offender treatment and then make a decision.”
Jay Jenkins, an attorney for the Texas Criminal Justice Coalition, which is pushing to raise the age of criminal responsibility in Texas, has studied prosecution disparities because of age.
He said he is aware of several criminal cases filed against Houston teens accused of having sex with tweens.
“That’s the arbitrary nature of our sexual offense laws,” he said. “There’s very little rationality to those laws.”
So, essentially, they are going to ruin this young man’s life for having sex. Lets protect the children from sex! …. by ruining their lives.
Obviously, this is a failure to parent. It was probably the 12 year old’s parents who pressed the charges — again, knee jerk irrationality. They should have been more vigilant in raising their child to have more common sense when it comes to sexual relations. Same with the boy. His mother should have intervened and stated that this is not acceptable behavior.
Lets throw kids in jail for playing doctor! Seven years old! That’s a pervert in the making! Lets protect him from sex! Throw him in jail too!
Also, note — it’s only the boy being charged. Why not charge them both? They were both underage. They were both having “consensual” sex (in quotations because they were below the age of consent).
When/if I ever reproduce, and if I have a son, I would be more worried about this sort of thing — about false rape accusations, about having sex while a teenager. My hypothetical son will probably be so terrified of sex that he’s going to card potential partners and get a written contract before any intercourse happens.
I’ve always said the Adam Walsh act (aka sex offender registry) was a bunch of bullshit. It was created out of knee-jerk emotionalism. It does more of a disservice to society by rendering a harmless (aka not likely to recidivate/not a dyed in the wool sexual predator) portion of the population unemployable and nonfunctional.
Hey! I wrote about this in grad school! (Note, kind of a long read with a lot of legalese. But I did a pretty admirable dissection and policy evaluation of this piece of legislature).
TL;DR version: The sex offender act should be reevaluated where true sexual predators will remain incarcerated and under go therapy until deemed not a threat to society, while lower level offenders will be graded on a tier system and “sex crimes” that aren’t even crimes like peeing on the side of a building or Romeo and Juliet cases will be assessed on a case by case basis for malfeasance).
And I feel like I have to throw in this disclaimer ever time I post something like this — this is not diminishing anyone’s experience being sexually assaulted. I’ve been sexually assaulted twice in my life and both were traumatic and horrible. This is simply an unbiased policy assessment of the sex offender registry.
The sex offender registry was authorized by the Adam Walsh Child Protection and Safety Act of 2006 to “To protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims” (42 USC §16911).
As the name of the policy indicates, it is in memory of Adam Walsh, a six-year-old boy who was kidnapped in a Florida mall and decapitated. Adam Walsh is the son of John Walsh, the long time presenter of “America’s Most Wanted”. On July 27, 1981, Reve Walsh, Adam’s mother, left him playing in the toy section of Sears in the Hollywood, Florida mall while she stepped away to the lamp section to browse. When she returned to the toy section, he was missing, and Reve Walsh asked managers to call for him over the loud speaker. After two hours with no luck, police were called. Nothing was known of Adam’s whereabouts for two weeks until fishermen found his severed head around Vero Beach. In the light of Adam’s death, his father, John, became an activist including adding the photos of missing people to milk cartons and fliers, and created the show for which he is most well known, “America’s Most Wanted.” (“Police”, 2008). John Walsh’s activism, in addition to many other high profile cases involving the abduction and sexual exploitation of children and minors, lead to the inception of the Adam Walsh Act.
The Act’s aims to fulfill several purposes:
- “Police have a list of likely suspects should a sex crime occur in the neighborhood in which a registered offender lives
- Parents have information that will enable them to heighten their vigilance and to warn their children to stay away from particular people
- Limit offenders’ access to children and their temptation or ability to commit new crimes” (HRW, 2007)
The Adam Walsh Act sets forth specific requirements and definitions for those who have been convicted of a sex offense. It focuses mainly on offenders who have committed a sex offense against minors. It excludes adult sexual offenses, consensual sexual offenses, foreign convictions of sex offenses, etc (42 USC §16911).
The Act requires sex offenders to keep current registration in cities/jurisdictions where he or she is employed, in school, and resides. This part of the act is referred to as The Sex Offender Registration and Notification Act (SORNA). When registering, the offender must provide their name, SSN, home address, workplace address, school address, license plate number. In addition, the physical appearance of the offender will be documented as well as a current photo, DNA sample, copy of his or her driver’s license or ID card, and finger prints. However, only specific information is allowed to be made publicly available; SSN, workplace, school, prior arrests not resulting in conviction, and any other information the Attorney General feels should not be made public will not be available to the public (42 USC §16911).
In addition to registering, certainty entities within the community where the sex offender registered will be notified of his or her presence. These entities include law enforcement and probation, agencies that require employment related background checks, social service agencies who deal with minors, volunteer agencies who deal with minors, or any agency who requests the information (42 USC §16911).
The Act creates a tier system for sex offenders determined by the severity of the crime. There are three tiers, each with specific crimes listed for a sex offender to be designated to that tier.
Tier I is the lowest level of the sex offender registry and generally offenses include receiving child pornography, or any other “minor” offenses related to under aged people. Definitions differ from state to state. Offenders are required to register for a number of years designated by the state, however federally it is required to be more than 15 years. If the offender recidivates, the registration period will be longer. The offender is required to present themselves for renewal of their registration ever year (Rinehart, 2006).
A Tier II sex offense is defined by being sentenced to more than one year in prison. Different states have different requirements for length of registration. For instance, Connecticut requires Tier II offenders to register for 25 years. Offenses include sex trafficking, coercion and enticement, abusive sexual contact, creating child pornography, soliciting a minor for prostitution, etc. The offender is required to present themselves for registration renewal every six months (Rinehart, 2006), (42 USC §16911).
Tier III sex offenses are the most sever types of offenses. Generally, Tier III offenders are required to register for life. Offenses include aggravated sexual abuse or abusive sexual sexual contact greater than that prescribed by Tier II. Offenders must renew their registration every three months (42 USC §16911).
If any jurisdiction refuses to carry out these measures or implements them improperly they will lose 10% of their federal funding for that year (42 USC §16911).
As with any new policy, especially policies that are designed to assuage the public’s fear and outrage over an act, there are criticisms over lack of policy planning and evaluation. Because of the hideous nature of sexual crimes against children and the incredible amount of public outcry to legislators to “do something about it”, this Act was created.
Other than the Adam Walsh case, there were several other cases which prompted and incited public outrage. The 1989 sexual assault and murder of 10 and 11 year old brothers William and Cole Neer by Westley Allan Dodd, who later became notorious with how prolific his appetite for abducting, sexually assaulting, and murdering children was (Dake, 2014). Or, the disappearance of Jacob Wetterling which lead to the Wetterling Act, or more commonly known as Former President Bill Clinton’s Crime Act which aimed to control sexual predation upon children and minors. Then Megan’s Law Passed, then Pam Lychner’s Act, and so forth (“Federal Sex Offender Legislation”, 2014).
As with any unplanned change, there tends to be unanticipated future consequences as well as being “ineffective and wasteful of valuable public resources”. In policy research, unplanned change is defined as “a reaction to a crisis, a dramatic incident publicized by the media, a political opportunity, a lawsuit against criminal justice officials, or an untested set of assumptions about a specific problem” (Welsh & Harris, 2013).
The first few pages of the Adam Walsh act are in memoriam to children who have been lost due to sexual violence. It shows the good intentions of the Act, however it also shows the emotionalism that has been included in this act. Emotional, knee jerk reactions leave no room for planning, logic, or reason. This type of policy making leads to a lack of an empirical foundation and/or a foundation based on theory (Mears, 2010).
Effects on Juveniles
For instance, one of the unconsidered consequences of the Adam Walsh Act is that it subjects juveniles to the same penalties as adults, even though motivations may differ. New York forfeits federal funding because they refuse to uphold the parts of the Act pertaining to juveniles. As of 2011 only 15 states were in full compliance. As Shannon C. Parker states in her study, “Thirty-four states subject juveniles adjudicated delinquent in juvenile court to registration and notification.30 Of the thirty-four states that subject juveniles to registration, eighteen permit public notification of registered juveniles’ information. Additionally, twelve states do not allow juveniles to petition for modification or removal of their registration. In twenty-one of the states requiring juveniles to register, there is no minimum age below which juveniles are exempt from registration. In states where there is no minimum age, young children actually appear on the registry, and therefore a lack of minimum age is not a trivial matter. For example, Delaware, one of the states with no minimum age, had approximately 639 juveniles registered as sex offenders, with fifty-five children under the age of twelve—and a handful even as young as nine years old” (Parker, 2014).
There have been many suggestions by psychologists that to punish children for sexual exploration, which is deemed normal developmental behavior, is unethical and will scar them developmentally. A UCLA study showed that 77% of children engage in sex play, 61% had engaged in sex play with another child. These sex play behaviors did not consist of coercive or forceful contact, nor is it associated with adult deviant sexual behavior. In addition, the DSM does not recognize child sex play as a sign of pedophilia. In addition, some children who have had to register on the sex offender registry have been bullied, go through depression, have trouble in school, and are suicidal (Parker, 2014).
One such case is that of Brandon M – “Brandon M.’s case is an example. Brandon was a senior in high school when he met a 14-year-old girl on a church youth trip. With her parents’ blessing, they began to date, and openly saw each other romantically for almost a year. When it was disclosed that consensual sexual contact had occurred, her parents pressed charges against Brandon and he was convicted of sexual assault and placed on the sex offender registry in his state. As a result, Brandon was fired from his job. He will be on the registry and publicly branded as a sex offender for the rest of his life. In his mother’s words, “I break down in tears several times a week. I know there are violent sexual predators that need to be punished, but this seems like punishment far beyond reasonable for what my son did’” (HRW, 2007).
From a court’s perspective, there have been several decisions both pro and con of having juveniles register as sex offenders and whether or not it was constitutional. In Smith v. Doe, 538 U.S. 84 (2003) the Supreme Court held”[the] Sex Offender Registration Act is nonpunitive, its retroactive application does not violate the Ex Post Facto Clause.” Conversely, in Graham v. Florida 560 U.S. ___ (2010), the Supreme Court that it was unconstitutional for juvenile sex offenders to be sentenced to life without parole in that it violates the Eighth Amendment’s “cruel and unusual punishment” clause. Similarly, in Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court ruled juveniles cannot be subject to the death penalty. Building on these two decisions, the Ohio Supreme Court held in In re C.P., that requiring a juvenile to register as a sex offender for life is unconstitutional under the Eighth Amendment.
Human Rights Watch Study – Stigmatization of Sex Offenders
The Human Rights Watch (HRW) completed a comprehensive view of the Adam Walsh Act and found several glaring problems with the policy:
- “The registration laws are overbroad in scope and overlong in duration, requiring people to register who pose no safety risk;
- Under community notification laws, anyone anywhere can access online sex offender registries for purposes that may have nothing to do with public safety. Harassment of and violence against registrants have been the predictable result;
- In many cases, residency restrictions have the effect of banishing registrants from entire urban areas and forcing them to live far from their homes and families” (HRW, 2007).
One of the major points HRW discusses is how the registration affects those who are on it. Being on the sex offender registry is akin to having “a scarlet letter” emblazoned upon their chest. Generally the language used to describe the offense does not give any indicator to what the offense actually was and often leads the public to believe the worst. One of the interviewees, Jameel N., in this report state “When people see my picture on the state sex offender registry they assume I am a pedophile. I have been called a baby rapist by my neighbors; feces have been left on my driveway; a stone with a note wrapped around it telling me to “watch my back” was thrown through my window, almost hitting a guest. What the registry doesn’t tell people is that I was convicted at age 17 of sex with my 14-year-old girlfriend, that I have been offense-free for over a decade, that I have completed my therapy, and that the judge and my probation officer didn’t even think I was at risk of reoffending. My life is in ruins, not because I had sex as a teenager, and not because I was convicted, but because of how my neighbors have reacted to the information on the internet” (HRW, 2007).
From my own experience, having a brother on the sex offender registry, I have had firsthand experience of how stigmatizing it can be. My brother’s experience was extremely similar to Jameel N.’s. He served time for his offense, is on probation, goes to group therapy. He is not high risk for recidivating for a sexual offense. In the last 10 years since his release from prison, he has not had a stable job, has not been able to find housing outside of my parent’s home, has psychological issues from his ordeal and difficulty maintaining friendships and relationships when he discloses he is on the sex offender registry. It exposes individuals to harassment and difficulties in becoming a productive member of society once released from prison.
Residency requirements also pose issues for sex offenders. Many cities have requirements for sex offenders to not live within a specific amount of feet from a location where children may congregate such as a bus stop, school, or daycare. In addition, many rentors refuse to rent to sex offenders. They may also have difficulties rooming with friends and family because the do not want their addresses to be listed on the sex offender registries. This causes many sex offenders to abscond or become transient (Ennis, 2008) (HRW, 2007).
Policy Evaluation Hierarchy
When assessing whether or not a policy is effective, there are logical steps listed by Mears. The gist behind the evaluation hierarchy is that if the questions presented in the evaluation are not adequately answered, then it would not be advisable to proceed to the next level in the hierarchy. Sometimes, there is a lack of information to make a satisfactory judgment, however the heirarchy guides policy makers and researchers through the process in the best and most thorough way possible. There are five main steps: needs evaluation, theory evaluation, implementation/process evaluation, outcome/impact evaluation, and a cost-efficiency evaluation (Mears, 2010).
The Adam Walsh Act, although based in emotionalism and public reactions to high profile crimes, acts as a glue for other similar policies that came before it such as Megan’s Law and the Wetterling Act. Obviously, there was a need for action in order to control the growing epidemic of sex crimes – a real social problem exists. However, policy makers do not have a great deal of training in research and there is a lack of communication between policy makers and researchers. This creates ineffective policies. When the Adam Walsh Act was implemented, it begs the question – was there a proper needs evaluation conducted?
There are three main components to a needs evaluation:
- “Are existing efforts insufficient to address [the problem]?”
- “Are existing efforts to address [the problem] not only insufficient, but also not amenable to correction?”
- “In comparison to existing efforts to respond to some assumed or documented social problem, is the proposed or newly implemented policy a needed substitute or supplement?” (Mears, 2010).
At the time the Adam Walsh Act was made into law, there were other pieces of legislation that created sex offender registries as well as notification systems. The Jacob Wetterling Act in 1994 created guidelines for states to track convicted sex offenders and required that violent predators be monitored for life and general sex offenders to be monitored for 10 years. In 1996, Megan’s law allowed sex offender registration records open for the public. In the same year, the Pam Lychner Sex Offender Tracking and Identification Act of 1996 created a national registry with the FBI. These acts, along with incidental acts that modified other pieces of legislation to prevent internet access to incarcerated sex offenders, and so forth, were not as all encompassing as the Adam Walsh Act which acted as a large cast net for any type of sex offender from the mundane and humiliating public urination charge and juvenile offenses, to dyed-in-the-wool truly violent sexual predators (“Federal Legislation”, 2014). The prior acts suggest there definitely was a need, however the pertinent question is whether or not they were effective enough? If the prior policy is ineffective because of one reason or another, should it be eliminated altogether and just have a modified Adam Walsh Act? Or simply amend the policy that is in place now and eliminate the Adam Walsh Act?
Although the Adam Walsh Act is a knee-jerk policy created out of several highly publicized cases, it is firmly rooted in criminological theory.
The sex offender registry is firmly rooted in rational choice and deterrence theory. Rational choice theory is based upon economic theory, specifically the expected utility principle – “people will make rational decisions based on the extent to which they expect the choice to maximize their profits or benefits and minimize the costs or losses” (Akers & Sellers, 2013). For a sex offender, would the benefits of committing the act outweigh the punishment. As mentioned before, the sex offender registry is extremely punitive – with this are the hopes that it will be a greater deterrent on both a specific and general level.
The Adam Walsh Act also has some validity in routine activities theory. Routine activities theory states that for a crime to occur there must be “motivated offenders, suitable targets of criminal victimization, and absence of capable guardians of persons or property” (Akers & Sellers, 2013). By having sex offenders register, people in the vicinity are better able to gird themselves to reduce their suitability as a target as well as acquiring more and better guardianship (i.e. a dog, firearm, alarm system, etc.). In addition, the registry is theorized to decrease the motivation of the offender due to immediate knowledge of their presence within the community – if any sex crimes do occur, the registered offenders will be the first ones law enforcement agencies visit.
However, all of this assumes that the run of the mill sex offender is a rational being. There have been many studies conducted concerning recidivism rates among sex offenders, specifically pedophiles or violent sexual predators. Because of definitional and jurisdictional differences, recidivism rates for sex offenders vary widely between studies. In the Neller and Petris study, they narrowed recidivism rates for sexually violent predators to 13%-14% after a short term follow up (4-6 years) and 30%-40% on a long term scale (20-25 years). It is difficult to determine whether or not a sex offender will recidivate. One study shows that recidivism rates were higher for sex offenders who went through treatment – 52% recidiviated compared to the 13% recidivism rate for those who did not attend treatment programs (Neller & Petris, 2013). A study conducted in Germany shows that “a lack of self-control (i.e., the tendency to pursue short-term, immediate pleasure to the neglect of long-term consequences) to be the sole factor in understanding and predicting criminal activity” (Strüber et al, 2008). In addition, there may be a biological predisposition toward aggressive sexual behaviors in relation with brain structures and malformations. Strüber states in his study that “prefrontal disruption consistently occurs across anatomical and functional studies with a wide range of clinical and forensic populations, which are characterized by emotional dyscontrol and impulsivity/aggression, suggesting that prefrontal dysfunction may predispose to impulsive aggression and violence.”
In sum – there are several factors at place, both psychological and biological that may cause a person to be inherently sexually violent. Because of this, they are not rational. Basing this policy in theory is well and good, however if the group of people who are being dictated by this policy do not make rational decisions, nor care about ramifications for said decisions, then any theoretical foundation is void. At this point, this policy serves more as a tool for law enforcement agencies than a deterrent.
An implementation evaluation “document[s] whether a policy delivers the appropriate amount and types of operations, decisions, services, and activities to intended targets in a high-quality manner” (Mears, 2010). For SORNA, an implementation evaluation would be whether or not it fulfills its goals and objectives.
The five main goals/principles of the criminal justice system are incapacitation, deterrence, rehabilitation, retribution, and rehabilitation. These are essentially the bread and butter to the system; any criminal justice policy that is a criminal sanction will follow most of these principles. In addition to these principles, there are also normative goals for criminal sanctions including proportionality, equity, parsimony, and humane treatment (Welsh & Harris, 2013).
The Adam Walsh Act fulfills some of these goals, but also falls short on other goals. For instance, it acts as incapacitation in that the offender must register and have his or her residents confined to specific locations. Probation for sex offenders also acts as a means of incapacitation.
The Act also serves as a means of both general and specific deterrence – specific for the offender, and general for those who are considering committing a sexual offense but are deterred from doing it because of the registry and other punitive measures put into place.
The Act, most of all, is retributive in every respect. The registration process is retributive in that the offender must hand over their information to the authorities for them to post it on a public website for all to see. This includes potential employers, neighbors, schools – everyone. The type of stigma and public shaming involved with being a sex offender can range from passive aggressiveness, to assault, vandalism, discrimination, etc. In sum – instead of being punished by the government for a crime, the offender is being punished by all of society.
For offenders who have mandatory counseling as part of their sentencing, there may be some rehabilitative benefits. There is not any real empirical evidence if this type of counseling works. As for restoration, the act falls short. Instead of allowing the offender to become a functioning and productive member of society, it stigmatizes them and separates them from society. They are unable to find gainful employment, maintain residence, and contribute to society.
When it comes to normative goals, whether or not the Adam Walsh Act follows these goals is debatable. For instance, proportionality has been discussed when it comes to juvenile offenders. But what about those who did not commit “serious” crimes. For instance, a 15-year-old girl was taking nude photographs of herself, and sending them to her boyfriend. When it was found out, she was charged as a Tier II sex offender (Zimmer, 2008). Or, like the case of Wendy Whitacker who is now a registered sex offender for consensually performing oral sex on her nearly 16 year old boyfriend when she was 17. And finally, the oft cited urinating in public.
Parsimony is another of the normative goals that the Adam Walsh Act seems to overlook. Parsimony is “the principle of using the least drastic and expensive measure needed to produce a specific objective” (Welsh & Harris, 2013). The Justice Policy Institute provides a fiscal breakdown of what SORNA would cost states the first year it was implemented, compared to the 10% loss of federal funding:
Fig 1. Table of initial cost of implementation of SORNA for individual states compared with their 10% federal funding
It begs the question, is prison sentencing not enough and is this grand expenditure on a program with no empirical backing truly worth it?
Another normative goal to be discussed in reference to the Adam Walsh Act is whether or not the policy is humane. The Supreme Court decided in Smith that sex offender registration did not qualify as cruel and unusual punishment because it was “non violent”. However, the registration itself puts individuals in the cross hairs for potential violence. In 2006, a Nova Scotia man, Stephen Marshall, looked up names and addresses on the Maine sex offender registry and proceeded to seek them out and kill them. He killed two individuals on the sex offender registry – William Elliot, 24, and Joseph Gray, 57 (“Suspected Killer”, 2006).
The Human Right’s Watch study states in regards to violence against offenders, “Registrants and their families have been hounded from their homes, had rocks thrown through their home windows, and feces left on their front doorsteps. They have been assaulted, stabbed, and had their homes burned by neighbors or strangers who discovered their status as a previously convicted sex offender. At least four registrants have been targeted and killed (two in 2006 and two in 2005) by strangers who found their names and addresses through online registries. Other registrants have been driven to suicide, including a teenager who was required to register after he had exposed himself to girls on their way to gym class. Violence directed at registrants has injured others. The children of sex offenders have been harassed by their peers at school, and wives and girlfriends of offenders have been ostracized from social networks and at their jobs” (HRW, 2007).
The declaration of purpose in the Adam Walsh Act states “to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators against the victims listed below, Congress in this Act establishes a comprehensive national system for the registration of those offenders” (42 USC §16911). This part of the act specifically creates SORNA – the registry itself.
There are four specific and measurable components when determining the objectives of a policy: time frame, target population, result/outcome, and criterion or measurement for success (Welsh & Harris, 2013).
When the Adam Walsh Act was signed into law in 2006, jurisdictions were given 3 years to fully implement SORNA. If jurisdictions did not implement SORNA they would forfeit 10% of federal funding given to them on an annual basis (42 USC §16911). As of now, all 50 states have a sex offender registry.
Implementation of SORNA was mandatory throughout the U.S. and territories. Native American Nations were encouraged to create a registry, as well. As of 2012, over 120 tribes participate in SORNA (“Indian Tribes”, 2014). However, some states, like New York, do not fully implement SORNA in terms of juvenile sex offenders (Parker, 2014).
The desired results for the Adam Walsh Act was to have a lower instance of sex crimes against minors by having known offenders register, which allows the registered offenders to be monitored, tracked, and called upon as a suspect if any sex crimes happen in the area in which they are registered (42 USC §16911).
The criterion used to measure the effectiveness is by the number of new sex crimes reported in addition to the recidivism rates of existing offenders. This can be difficult to obtain because nearly 50% of sex crimes are not reported. By having a registry, and knowing that the perpetrators will be listed, can cause some victims trepidation about reporting if they know the perpetrator or are related to the offender. Additionally, definitions of laws have changed which changes the dynamics of how sex offenses are reported (Prescott & Rockoff, 2011).
However, with such a widespread policy, there are bound to be cracks. Consider sex offenders who refuse to register and simply disappear. Law enforcement has jus.01 lost track of them. This type of behavior is called absconding. There have been problems with sex offenders absconding in major metropolitan areas. For instance, in 2009 Atlanta P.D. had lost track of more than 250 sex offenders in the metro area (Judd, 2009). In southern California, there are 350 sex offenders unaccounted for (Thompson, 2013)
Outcome and Impact Evaluation
Outcome and impact evaluations deduce the different levels of outcomes and ensure the policy is associated with the outcome. Essentially – it needs to be known whether or not the policy actually works. There are no assumptions or causal claims – it needs to be backed empirically. For instance, if SORNA were to be considered effective, there would need to be a direct decrease in sex crimes and recidivism rate. The reduction in sex crimes would be from the deterrent properties of the policy, and recidivism rates would go down as a result of deterrence and hyper-vigilance. The figures presented as evidence of effectiveness would need to be unbiased from a third party researcher with no stakeholders involved in the research to ensure it is unbiased. In addition, it would have to fulfill the goals and objectives initially created in the policy’s nascent stages.
To answer these types of questions posed above, a cost-efficiency or a cost/benefit analysis should be performed. A cost-efficiency evaluation “involves the same type of logic” and is the metaphorical comparison between apples and apples. A cost/benefit analysis “is used to determine which of several approaches that target qualitatively different outcomes” or the metaphorical apples to oranges comparison. There are six steps to a cost/benefit analysis: “state the policy question, identify the perspective of analysis, identify all relevant costs and benefits, assign values to cost and benefits, compare the costs and benefits of one or more policies, and assess the sensitivity of the results to critical assumptions and detail all relevant assumptions and limitations” (Mears, 2010).
Because of how complex sex offender policy is, the easiest way to determine monetary effectiveness is to perform a cost/benefit analysis. This way, all factors will carry a monetary tag. Using the amounts listed in Fig. 1, on a national level, the implementation of SORNA cost nearly $500 million. The study conducted by the Justice Policy Institute showed that many states were struggling to rationalize the costs. The technology alone will cost states $85,000 annually. Treatment programs and maintenance of sex offender’s registration information to databases would cost states another $100,000 annually. Because of SORNA, overall expenditures on personnel, software, prison space, court and administrative costs, law enforcement costs, and other ancillary costs saw increased expenditures (“What will it cost”, 2014). These types of costs are direct costs – they are “they are closely related to the primary objective of the policy” (Mears, 2010).
But there are also the benefits to be considered such as SORNA being a tool for law enforcement, peace of mind by the public knowing sexual predators are on a registry and being monitored, mandatory sentencing, knowing policy makers are seeing that there is a problem, etc.
Sexual violence comprises of only 3.7% of all reported crimes. Nearly 50% of all sexual violence is not reported. Another study shows a paltry 19% of sexual crimes being reported. Fortunately, during the years of 1999-2005 sexual violence showed a 69% decrease – a full year before the Adam Walsh Act was enacted. Because of differing rates of recidivism, it is difficult to determine whether or not it is mainly offenders who are recidivous or new offenders committing these crimes. One study quotes 87% of individuals arrested for sex crimes had no prior record (HRW, 2007). Because of the varying figures and under reporting, it is difficult to put a finger on the actual cost of the crime.
These types of costs would be considered indirect costs – “by-products, multipliers, spillovers, or investment affects of the policy” (Mears, 2010). Some of them, such as pain, fear, anxiety, and suffering are intangible costs and difficult to quantify. Victims also experience other costs that are not even calculated in most of these incidents – therapy, medical bills, lost productivity, insurance, etc. (Daigle, 2012). Mears recommends proceeding without including these costs because there is no market for this.
Another type of cost/benefit analysis that can be used in regards to sex offender legislation is a risk assessment. What is the risk of not having this policy, especially considering it deals with an extremely dangerous subset of the criminal population? For instance, the state of New Jersey implemented the Registrant Risk Assessment Scale (RRAS) in 1995, before SORNA’s use of the tier system. The RRAS focuses on four different factors to determine risk: seriousness of past offenses, offense history, characteristics of the offender, and community support. Offenders were graded and depending on their grade they are placed on a tier scale with Tier I being the lowest risk and Tier III being the highest risk (Lanterman et al, 2014). In addition to tools such as RRAS and other legislation available, would it be detrimental to not have SORNA? With each states having their own type of registration and assessment policies before the implementation of SORNA, does this extra “layer” act as a loss prevention or reduction tool in addition to current state and federal legislation and is it worth the additional costs?
There are shortcomings to a cost/benefit analysis. Many of the monetary values that would normally be difficult to place may sometimes build on implausibilities or assumptions. Even the ever changing reported recidivism rates of sex offenders is an assumption, but it is necessary.
One way the National Institute of Justice aims to perform a cost/benefit analysis on SORNA is to outsource it and the group who provides the best analysis wins a prize (“SORNA Challenge”, 2013).
Truthfully, it would wasteful and foolish to throw away this concept altogether. Sexual violence is a real and horrible thing. But for there to be one effective, catch all program, there needs to be a program overhaul with a hardened empirical backbone in place. For this to happen the program needs to be redesigned.
There are some points to be considered in the beginning stages of designing a program:
- “The problem or need to be addressed”
- “It’s etiology and theory that explain how these causes to work to produce the problem”
- “Possible interventions, including interventions that have already been tried”
- “Goals and objectives” (Walsh & Harris, 2013).
- Target populations
The main problem is creating a sex offender registry that is effective in preventing recidivism, while avoiding the problems the current registry system faces such as incidental crimes causing people to be branded as a sex offender, absconding, technology, and other issues that may come up.
There are many criminological, psychological, and physiological theories that address deviant and criminal sexual behavior. In addition, fiscal restrictions create issues in the implementation of the current registration program.
There have already been many attempts to remedy the sex offender situation including psychological treatment, punitive measures, incapacitation, and other methods. Maybe it would be best to try a different combination.
Some of the barriers to the creation of a new sex offender monitoring program would be advocates of the current program, fiscal barriers, technological barriers, sex offenders themselves, victims under reporting incidents, and many other unforeseen variables that can be anticipated.
Objectives for this new program:
- Noticeably decrease the recidivism rate
- Keep at least 99.9% of non-incarcerated sex offenders monitored electronically (.01% accounts for those who abscond for whatever reason)
- Create a registry that would provide law enforcement with sex offender’s addresses and information, but limit public access to specific information so as to not endanger the offender
- Provide treatment and rehabilitation to sex offenders who will benefit
- Having psychological assessments conducted on sex offenders before release to determine if they will recidivate
- Keep known violent sexual predators incarcerated.
- Create special correctional facilities in each state for solely sex offenders.
- Create a new protocol for juvenile offenders on a case-by-case basis.
- Violent sexual assaults by minors will be handled differently than innocent sexual exploration that has been thoroughly documented in children, or any other type of “Romeo and Juliet” incident.
- The minimum allowed age for an individual on the sex offender registry will be 13.
- Juvenile records will remain sealed unless psychological evaluations suggest the juvenile is a violent sexual predator.
An action plan is simply a blueprint of how to implement a program or policy. It has clear details of the how the program will be implemented, when (including a time frame) it will be implemented and in what stages, and how personnel are to be added and coordinated (Welsh & Harris, 2013).
In addition to the action plan, a resource plan also needs to be created. A resource plan ensures expenditures are properly allocated at the proper times to the correct groups. Luckily, if a new sex offender registry program is to be implemented, it can use the same resources as the previous one – it can utilize the same computer networks, reporting, etc. Also, law enforcement has already been trained on how to deal with sex offenders. Federal funding is already given to states for the sex offender registry, it simply needs to be reallocated, with main expenditures used for reorganization and monitoring systems (Welsh & Harris, 2013).
A visually appealing and concise way to organize these two plans, with who is doing what task, is in a Gantt Chart. However, with an overhaul this large and multidimensional, it would take hundreds of law enforcement personnel, policy makers, and other staff to fully implement the program.
Policy Implementation and Monitoring
With this type of program, monitoring and data collection are key. Because one of the main goals for this program is to have an empirical backbone, ensuring data is collected and analyzed allows benchmarks and the creation of progress reports.
For a program on this scale, it would be best to do a trial run in one state. For this, researchers and law enforcement personnel need to work hand in hand to ensure all facets of the program are being monitored. As mentioned above, New Jersey has correctional institutions set up specifically for sex offenders with psychological evaluations (RRAS) in place for offenders. Welsh and Harris list four ways for data to be collected including observation, records, staff data, and data from participants.
The program itself would need to start in the correctional institution set aside for sex offenders. There needs to be a different system of treatment and rehabilitation for offenders depending on their type of offense. For instance, violent sexual predators, who obviously pose a risk to the general public, will not be released.
There will be no need for a Tier III sex offender. Anyone who falls into that tier will be incarcerated due based on risk assessments. What would be considered Tier II sex offenders will receive therapy while incarcerated. They will serve the time given to them. For a Tier II offense, the minimum sentencing guideline would be at least five to ten years. For a Tier I offender, their case will be reviewed, and if the charge is menial (the ubiquitous and oft cited public urination charge, or a college freshman who got caught streaking, etc) and these offenders pose no real risk, after having a psychological evaluation to determine this, will receive a sentence of what the judge feels is best based off the crime and risk assessment.
For the sex offender registry, the main details – name, address, physical description, and all other identifying information – will be kept within law enforcement. The general public will be notified if a sex offender has moved into the immediate area (approximately 1-3 mile radius), without specific details given on their address. Potential employers who perform a background check will be notified of the charge. By having these measures in place, it ensures individuals who have been rehabilitated and released back into the general public will not be publicly stigmatized – it allows them to become functional members of society. New technology such as RFID chips or GPS tracking will be used on Tier II offenders. This allows law enforcement to monitor the whereabouts of known offenders so that if a sex crime does happen, the past locations of potential known perpetrators can be accessed. Having this electronic 24-hour location monitoring will serve as both a tool for law enforcement and a deterrent for offenders.
The same personnel can be used; they already have training in how to interact and deal with sex offenders. A simple change in duties and maybe some additional training will be all that is needed. For the test institution, sex offenders in other correctional institutions need to be transferred to the “new” institution, and the inmate population that currently resides at the institution that will be used for sex offenders will be disseminated into other institutions.
The main expenditure other than personnel would be technology. The monitoring equipment would need to be acquired for existing sex offenders. In addition, servers and other storage mediums would need to be purchased or reallocated.
Evaluation of this program will be conducted like a research project. Data will be collected, analyzed, and interpreted.
The main sources of data will come from law enforcement agencies and probationers reporting any incidents of recidivism as they occur. Also, psychologists who are conducting tests will also provide data and insight, as well. Because the program is being tested in only one state, data collection and analysis will not be some overwhelming task with large amounts of errors and oversights. In addition, fiscal monitoring will take place to ensure this program will not exceed budget limitations. It will also provide a cost estimate to other states for planning and implementation purposes.
Data will be collected on a specific survey-style form. Variables for the evaluation will differ depending on what “stage” the offender is in. If the offender is still incarcerated, data will be provided by psychological personnel who are observing and treating offenders. Variables will include whether or not the offender is violent, remorseful, indifferent, or any other indicator that may be helpful for both treatment and data analysis as well as basic demographic data (age, gender, race, socioeconomic status, etc). For offenders who are not incarcerated, their probationer will collect data including living situation, employment status, criminal activities (both relating to sex offenses and non-sexual offenses). A database will be maintained with all information collected on a particular offender both in and out of prison will be accumulated. This data will be analyzed to see if there are any trends for recidivism that can make it more predictable or any other indicators that will help law enforcement apprehend monitor potential offenders.
Assessments should happen quarterly – this will allow for “real time” data analysis for the program, rather than annually where it would be more difficult to alter the program if the data shows there is a problem.
If data shows that parts of the program need to be modified, these aspects can be tweaked, and in a few years after the program has been implemented in the test state, and it is shown to be successful during its “test run”, it can be implemented on a national level.
The recidivism and sex crime rates in other states will be used as an impromptu “control group” for this evaluation. Essentially, the sex crime and recidivism rates in the test state will be compared to the rates of other states or national data.
A meta-analysis will be used to analyze the collected data every quarter. Data analysis programs such as SPSS can be used to organize the data and multi-variate analysis including regression models, Chi-Square, and other methods to determine significance. One way to assess the results of data analysis is an impact evaluation – it compares actual outcomes against desired outcomes. Another method of assessment is a performance evaluation, which allows researchers to “collect and analyze outcome information on… a permanent basis” (Mears & Harris, 2013). Another assessment that can be used to determine the success of the program is a cost effectiveness analysis so that results can be quantified into a monetary value and compared, as mentioned above.
If the program is shown to be successful and implemented on a national level, data collection and analysis will still be ongoing. The program will be out of beta testing; data will probably only need to be analyzed in totality every year. This will keep law enforcement, researchers, and policy makers abreast of any new trends or concerns.
Patty Wetterling, Jacob Wetterling’s mother, said “People want a silver bullet that will protect their children. There is no silver bullet. There is no simple cure to the very complex problem of sexual violence.” SORNA has been analyzed and criticized by domestic and international groups for its disregard of human rights as well as its ineffectiveness. The program design presented in this paper allows for a more offender-focused policy. If offenders are monitored by law enforcement more through GPS or RFID tracking, it can be hypothesized that recidivism rates will decline. Better research and data collection/analysis methodology will allow for more accurate violent sexual predator identification in the future in addition to better monitoring and treatment for mid-level sex offenders.
Adam Walsh Child Protection Act of 2006, 42 USC §16911
Akers, R., & Sellers, C. (2013). Criminological theories. (6th ed.). Oxford, New York: Oxford University Press.
Dake, L. (2014, August 24). Westley Allan Dodd killings: A gruesome anniversary. The Colombian. Retrieved December 4, 2014, from http://www.columbian.com/news/2014/aug/31/westley-allan-dodd-killings-a-gruesome-anniversary/
Daigle, L. (2012). Victimology: A Text/Reader.
Enniss, B. (2008). Quickly Assuaging Public Fear: How the Well-Intended Adam Walsh Act Led to Unintended Consequences. Utah Law Review, 697-721.
“Federal Sex Offender Legislation” (2014) Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART), U.S. Office of Justice Programs. Retrieved December 4, 2014 from http://ojp.gov/smart/legislation.htm
Graham v. Florida 560 U.S. ____(2010)
Henry, S. (2009, August 28). Wendy Whitaker, symbol of flawed sex offender law, rearrested. Creative Loafing Atlanta. Retrieved December 4, 2014, from http://clatl.com/freshloaf/archives/2009/08/28/wendy-whitaker-symbol-of-flawed-sex-offender-law-rearrested
In re C.P., 967 N.E.2d 729, 751 (Ohio 2012)
Judd, A. (2009, December 21). More than 200 sex offenders cannot be found. Atlanta Journal Constitution. Retrieved from http://www.ajc.com/news/news/local/more-than-200-sex-offenders-cannot-be-found/nQZ7r/
Lanterman, L., Boyle, D., & Ragusa-Salerno, L. (2014). Sex offender risk assessment, sources of variation, and the implications of misuse. Criminal Justice and Behavior, (41), 822-843. doi: 10.1177/0093854813515237
Mears, D. P. (2010). American Criminal Justice Policy: An Evaluation Approach- to Increasing Accountability and Effectiveness. Cambridge University Press, NY.
National Institution of Justice, Office of Justice Programs. (2013). Sorna challenge. Retrieved from website: http://nij.gov/funding/Pages/fy13-sorna-challenge.aspx
Neller, D., & Petris, G. (2013). Sexually violent predators: Toward reasonable estimates of recidivism base rates. Behavioral Sciences and the Law, 31, 429–443. doi: 10.1002/bsl.2072
“No Easy Answers: Sex Offender Laws in the U.S”. (2007). Human Rights Watch, 19(4).
Office of Justice Programs, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registration, and Tracking. (2014). Indian tribes/nations/pueblos implementing SORNA. Retrieved from website: http://ojp.gov/smart/indiancountry.htm
Parker, S. (2014). Branded for Life: The Unconstitutionality of Mandatory Lifetime Juvenile Sex offender Registration and Notification. Virginia Journal of Social Policy & the Law., 21(1), 167-205.
Police: ’81 Killing of Adam Walsh Solved. (2008, January 1). Nbcnews.com. Retrieved December 4, 2014, from http://www.nbcnews.com/id/28257294/ns/us_news-crime_and_courts/t/police-killing-adam-walsh-solved/
Prescott, J., & Rockoff, J. (2011). Do sex offender registration and notification laws affect criminal behavior?. Journal of Law and Economics, 54(1), 161-206.
Reinhart, C. (2006) Federal Law on Classifying Sex Offenders, (2006-R-0765) Hartford, CT
Roper v. Simmons, 543 U.S. 551 (2005)
Smith v. Doe, 538 U.S. 84 (2003)
Suspected killer accessed online sex offender registry, Maine police say. (2006, April 17).CBC News. Retrieved December 4, 2014, from http://www.cbc.ca/news/world/suspected-killer-accessed-online-sex-offender-registry-maine-police-say-1.624198
Strüber, D., Lück, M., & Roth, G. (2008). Sex, aggression and impulse control: an integrative account.Neurocase, 14(1), 93-121. doi: 10.1080/13554790801992743
Thompson, D. (2013, March 7). NBC Los Angeles. Retrieved from http://www.nbclosangeles.com/news/local/More-California-Sex-Offenders-Going-Missing-Under-New-Law-196205241.html
Welsh, W., & Harris, P. (2013). Criminal justice policy and planning. Waltham, Massachusetts: Elsevier.
What will it cost states What will it cost states to comply with the Sex to comply with the Sex Offender Registration and Notification Act? (2007, January 1). Retrieved December 4, 2014, from http://www.justicepolicy.org/images/upload/08-08_fac_sornacosts_jj.pdf
Zimmer, R. (2008, October 8). Newark Advocate. Retrieved December 4, 2014, from http://www.newarkadvocate.com/article/20081008/NEWS01/810080302