Sex Offender Laws: Overview

Introduction

The debate surrounding sex offender laws addresses the question of proper legal sanction against individuals convicted of sexual crimes. On one side of the discussion are those who believe that the only appropriate course of action for violent sexual offenders is long-term or even lifetime incarceration. On the other side are those who claim offenders can be successfully treated through psychological therapies and medication and returned to society once they have exhibited a proper display of remorse for their actions. Another important aspect of this debate is that sex offender laws often group together widely divergent offenses, from child rape or murder at one extreme, and otherwise consensual sex between older teenagers and slightly underage partners at the other extreme. All too often, the laws consider perpetrators in both groups as one and the same, forcing those in the latter group to register for life and accept the lifelong stigma associated therewith.

The most controversial aspect of the debate is the idea of rehabilitation for violent or repeat sexual offenders. Advocates for long-term incarceration assert that there is no conclusive scientific data to suggest that psychological treatment is effective in reducing recidivism among such sex offenders. They also suggest that the length of time served gives some measure of respect to the survivors of sexual assault. Meanwhile, critics argue that long-term incarceration is an unnecessary financial drain on society and that psychological treatment options are effective and more economical. Despite their differences, both sides agree that incarceration alone does not reform violent sexual offenders. Interestingly, little concern is paid to the fact that long-term incarceration without treatment will, in all circumstances except people sentenced to life imprisonment, result in a potentially unreformed and mentally ill offender being released back into society.

Understanding the Discussion

Chemical castration: The use of chemical injections to significantly reduce the male sex drive. Scientific studies have demonstrated a correlation between chemical suppression of the sex drive and reduced impulse to commit illegal sex acts. Chemical castration cannot constitutionally be forced upon someone, however, and is used only with consent of the offender in exchange for leniency in sentencing or an opportunity for parole or early release from prison.

Civil commitment: An arrangement whereby a state can move convicted sex offenders who have served their prison sentences into mental hospitals to further delay their reentry into society. This is based on the legal doctrine that persons can be committed to mental institutions if they present a danger to themselves or others as a result of mental illness.

Recidivism: Repeated criminal behavior despite prior conviction, incarceration, or psychiatric treatment.

Registered sex offender: A person who was convicted of sexual crimes, served their sentence, and has reentered society and complied with state and federal registry laws.

Repeat sex offender: An individual who has committed multiple sexual assaults, in some cases even after prior incarceration or psychiatric treatment.

Sexual predators: Individuals who engage in a pattern of seeking victims and committing sexual crimes. Sexual predators are generally repeat sexual offenders who have not reformed their behavior, regardless of prior incarceration or medical treatment.

History

In the 1930s and 1940s, many states used existing civil commitment provisions to address issues of recidivism among sexual offenders. Through civil commitment laws, states were able to transfer sex offenders who had been deemed “sexual psychopaths” into state mental institutions until it was determined that they no longer posed a threat to public safety.

Eventually, some civil commitment laws were revoked, while others were simply overlooked by the courts. In the late 1980s, in response to public outcry over an apparent increase in reported sexual crimes against children, state lawmakers began to revisit civil commitment laws. New legislation was passed, including both long-term incarceration and options for civil commitment for violent sexual predators. These laws allowed states to prevent sexual offenders from reentering society for longer than would be possible with shorter sentences, parole options, or short-term psychiatric treatment.

One of the best-known civil commitment laws is Florida’s Jimmy Ryce Involuntary Civil Commitment for Sexually Violent Predators’ Treatment and Care Act, which went into effect in 1999. According to the act, qualifying sex offenders were committed to specially designed treatment facilities throughout the state. Reports of neglect, sexual misconduct, and drug use at treatment centers resulted in allegations of inhumane and illegal behavior, causing Florida to reconsider its treatment of sex offenders.

Critics of civil commitment claim that such laws violate the US Constitution. According to critics, civil commitment cannot be applied to any offender convicted prior to the establishment of the law without being a violation of the prohibition against ex post facto laws. Likewise, in regard to due process, critics claim that civil commitments of previously convicted offenders violate due process, since offenders could not have had prior knowledge of such punishment before committing their crimes. The Constitution also includes provisions that an individual cannot receive multiple convictions for the same offense (i.e., double jeopardy). In the case of civil commitment, critics argue that offenders are being imprisoned a second time—solely as the result of a crime they have already been punished for, by being viewed as mentally ill and worthy of inpatient psychiatric treatment for the same crime. In many states, the conditions of confinement of civilly committed sexual offenders more closely resembles those of a prison than a medical facility, giving credence to the view that commitment is in effect a prohibited second punishment.

Despite the concerns of critics, both state and Federal courts have generally ruled in favor of civil commitment laws, although some refinements to procedure and the conditions of confinement have been imposed. In January 1994, the Minnesota Supreme Court upheld a 1939 state civil commitment law, claiming that the public’s right to be protected from people with an “uncontrollable impulse to sexually assault” outweighs an individual’s personal liberties. Similarly, in the 1997 case Kansas v. Hendricks, the US Supreme Court upheld a Kansas sexual predator law requiring only that the state prove mental abnormality, not mental illness, to detain an offender.

In 1997, California became the first state to adopt a chemical castration law for dealing with sexual offenders. According to the law, repeat sex offenders, and in some cases, first-time offenders, found guilty of specific violent sexual offenses against persons under age thirteen are required to undergo regularly scheduled injections of the hormone-suppressing drug Depo-Provera in exchange for eligibility for parole. Depo-Provera is commonly referred to as “chemical castration,” but in fact, it acts only to reduce but not eliminate sex drive in men. Treated men can generally still engage in sexual intercourse, and the effects continue only as long as treatments are given.

California enacted this law partly based on the results of some European studies that showed recidivism rates of as low 3 percent among Depo-Provera treated sex offenders. These numbers were especially appealing when compared to recidivism rates among untreated offenders at the time. While Fred Berlin, founder of the Sexual Disorders Clinic at Johns Hopkins University, once noted recidivism rates as high as 65 percent in untreated sex offenders, studies performed since the 1990s have shown an increased decline in the percentage of recidivism of sex offenders. There also are other, more permanent, forms of chemical or even surgical castration that have been used on a case-by-case basis with the consent of the offender and with generally favorable results.

Critics of chemical or surgical castration, even when not permanent, claim the process is inhumane and unnecessary, as less invasive treatment options are available. Many prefer the use of psychological and medical treatment for sex offenders, claiming that sex therapists can dramatically reduce recidivism by addressing such underlying psychological problems in sex offenders as childhood trauma, emotional disconnectedness, and negative perceptions of self-worth. Despite the presence of clinics that offer psychotherapy for sexual offenders, both the American Psychiatric Association and the New England Journal of Medicine continually assert that current psychological treatments alone are insufficient to secure low recidivism rates among sexual predators.

In January 2002, the US Supreme Court ruled on the constitutionality of Kansas’ civil commitment law in the case of Kansas v. Crane. The issue before the court was the question of due process for convicted sex offenders; the court upheld the state’s civil commitment law. The vote was 7–2, with the two dissenting judges expressing concern that the ruling did not adequately detail how the state should determine a convicted offender’s mental status.

In 2006, a Georgia law raised questions about the need for distinctions between different types of sexual offenses. According to that law, registered sex offenders may not live within one thousand feet of Georgia school bus stops, churches, daycare centers, playgrounds, and other locations where children gather. The law did not distinguish between offenders guilty of violent sexual assault crimes and such crimes as consensual sex between teenage minors.

The federal Sex Offender Registration and Notification Act (SORNA) of 2006 established baseline reporting standards and requirements for all sex offender registry programs throughout the states, territories, and tribal nations of the United States. SORNA also classified sexual offenses into three “tiers”—each with different lengths of registration, frequency of verification, and online notification requirements—and enabled jurisdictions to modify an individual's tier placement based on other factors, including victim age.

Several cases in 2007 and 2008 clarified, in some jurisdictions, the ability of states to restrict where registered sex offenders may live. Notably, ex post facto analysis has limited the right of some states to restrict the location of an offender’s residence when such restrictions did not exist at the time of a person’s conviction. A state or local government has also been limited in its ability to restrict residence location when such restrictions are calculated to, or in effect, prevent offenders from obtaining any suitable residence within a particular jurisdiction or when application of the law deprives a former offender of their rights to property owned when the restriction was enacted. States remain broadly split on such issues, and the federal courts have been reluctant to establish a uniform constitutional standard. For example, since 2007, Georgia, Indiana, Missouri, and Ohio have restricted ex post facto application of residency restrictions, while courts in Illinois and Iowa have upheld nearly identical restrictions.

Internet-enabled sexual offenses have also seen increased scrutiny. Law enforcement crackdowns on child pornography and the people who produce, distribute, and buy it have brought a number of contentious legal issues to light. In 2012, for example, the New York Court of Appeals made a controversial ruling that declared the purposeful viewing of child pornography on the Internet legal. In the case of former Marist College professor James D. Kent, the New York court found that automatically cached images viewed by the defendant did not constitute evidence of a crime, as the defendant was unaware of their existence and did not exercise control over them. The court ruled that simple viewing of child pornography did not meet requirements for prosecution under procurement or possession laws—decided action, such as printing, saving, or downloading the images, must be taken to constitute a crime.

In the 2010s, states also grappled with the burgeoning problem of teenage sexting and whether it should be treated as child pornography. Sexting involves the creation and distribution of explicit text messages, which, in the case of teenagers, often contain images of minors nude or engaging in sexual activity. In response, a number of states created lesser charges or penalties, such as fines and diversionary programs, for those caught in teen sexting cases. However, older teenagers over the age of majority who are convicted in such cases may be required to register as sex offenders in their state.

Sex Offender Laws Today

The #MeToo movement took off in 2017, shedding light on the pervasiveness of sexual harassment and violence not only in the United States, where the online movement began, but also in other countries as well. In the light of that movement, victims' rights advocates called for extensions of or the total abolition of the criminal statutes of limitations for sexual offenses—particularly given that it often takes years for survivors of sexual violence to acknowledge what they experienced and to report it. By November 2017, Kentucky, Maryland, North and South Carolina, Virginia, West Virginia, and Wyoming had eliminated their criminal statutes of limitations for felony sex crimes. In 2019, the New York Child Victims Act created a brief look-back window in which adults who had experienced childhood sexual abuse could sue their alleged abusers for civil damages, even if the statute of limitations had long since elapsed. Subsequently, more than 11,000 suits were filed, including many against the Roman Catholic Church. A second law, New York's Adult Survivors Act (2022), similarly offered adult survivors of sex offenses one year in which they could file civil suit against their alleged attackers. More than 2,500 suits were filed, many of them against celebrities, politicians, and other high-profile individuals for incidents dating as far back as the early 1990s. Hundreds of suits were also filed against state prisons and jails, medical facilities, and other institutions.

Critics countered that criminal statutes of limitations have been implemented to protect individuals against claims where evidence may have deteriorated or become unreliable. Some predicted that eliminating or extending statutes of limitations for sex crimes could result in more wrongful convictions and growing prison populations at a time when mass incarceration remains high.

The high-profile case of Jeffrey Epstein has also raised serious questions about the limitations of sex offender laws, particularly where wealth and power are involved. As details emerged in the 2020s, it became clear that the millionaire financier's 2008 conviction and subsequent registration requirements had done little to prevent him from continuing to solicit and abuse underage girls, until his 2019 arrest on federal sex-trafficking charges. Evidence suggested that the government of the US Virgin Islands had shielded him from monitoring and even consulted him on the wording of its sex offender regulations.

These essays and any opinions, information, or representations contained therein are the creation of the particular author and do not necessarily reflect the opinion of EBSCO Information Services.

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