The Background to Deuce’s Law

11 Jun

I was meandering through some old folders on my computer today when I stumbled upon a paper I wrote for my undergrad freshman composition class way back in 2002 on Megan’s Law. It’s funny that I found it today since I’ve been plotting out my next post, in which I plan to lay out my prescription for ending rape. I think I’ll post the whole thing here, and then write up a post explaining my proposal, which I’ve called Deuce’s Law. I warn you, this essay is a little silly and pretentious (I was a college freshman and thought I was smarter than everyone else), and I would argue and write it much differently today, but I still think it makes some sense (plus, it’s got lots of citations, which I know MRAs love, so I hope my small coterie of MRA readers will take note). Rest assured, though, that Deuce’s Law will be much more radical (though a lot less realistic). Here it is:

Megan Kanka’s parents, Maureen and Richard, had no way of knowing that their neighbor, Jesse Timmendequas, had been convicted of sexually abusing children twice before, nor that his two roommates were convicted sex offenders whom he had met while incarcerated, and therefore had not warned their daughter to steer clear of him or his home. Being that Megan was a friendly, trusting seven-year-old, it was easy for Timmendequas to ensnare her by telling her that he had a puppy for her to play with inside the house. That night, as police investigated Megan’s disappearance, the records of the three men across the street came to their attention, and they soon picked Timmendequas up for questioning. Less than 24 hours after her disappearance, Megan’s body was found in a box where Timmendequas had dumped it after raping her and strangling her with a belt. He confessed and was sentenced to death, but that has done little to bring relief to the Kanka family. It is hard to ignore the fact that, had there been a law requiring community notification of the presence of convicted sex offenders, Megan would still be alive as her parents would have been able to warn her of the danger posed by Timmendequas and his housemates. The nation was understandably outraged, and the event quickly led to the creation of New Jersey’s Megan’s Law, a law requiring authorities to notify the public of the presence of a convicted sex offender, a federal version of which quickly followed.Controversy has erupted over whether the privacy rights of convicted sex offenders can be balanced with the rights of parents to protect their children from sexual predators, leading offenders and their lobbyists to challenge the validity and fairness of the law. Megan’s Law can and should be perfected so that it can protect the most defenseless members of society while causing the least possible discomfort for released offenders; still, the fact that it is not yet perfect does not negate its future potential to save children from the worst varieties of sex offenders, nor does the fact that an offender cannot be guaranteed absolute privacy supercede the right of a child to live in safety.

The current version of the law has not been applied uniformly yet, but it has the potential to become an invaluable asset to parents hoping to protect their children from sexual abuse. Registration has been required of sex offenders since 1994, when the Jacob Wetterling Act, which also stated that authorities were permitted to release information to the public about the whereabouts of sex offenders, was passed. The only difference in Megan’s Law is that it requires, instead of simply permits, authorities to release the information or run the risk of losing federal financial support for law enforcement programs. Unfortunately, the act was misunderstood by almost everyone, mainly because police were unsure of how to disseminate the information and because the public was not informed about how the law worked and how to obtain information. In fact, “Most people have been under the false impression that the law requires nationwide law enforcement agencies to actively notify the community if a high-risk sexual predator moves in,” which was not a part of the law (Parents 2003). There are no specifics in the federal version of the law that explain how and to whom the information is to be distributed, which is where the controversy’s roots lie.

Each state has chosen to implement Megan’s Law in its own way and there is a wide variety of ways in which they do so. However, most states fall into one of two categories and practice either active or passive notification. The first category, active notification, includes mailings, community meetings led by police, and door-to-door notification by authorities. The other, passive notification, requires action on the part of the person seeking information, such as visiting a police station to view a list of registered offenders. Both of these categories are still open to wide interpretation by law enforcement and judges and manifest in myriad ways. In an extreme example, one Texas judge has ordered signs placed on the lawns of local registered sex offenders that read: “Danger! Registered sex offender lives here” and has ordered the offenders to display bumper stickers on their cars that include the same message (Axtman 3).At the other end of the spectrum, some states require that those seeking information about sex offenders call a 900 number with a specific name and reason for needing the information.

There are problems with both of these approaches. The goal of notification is to warn those who may come in contact with the offender about the level of risk he poses, not to publicly embarrass him. Posting signs on his lawn does not give neighbors sufficient information about the risk posed by the offender and fosters panic that may be baseless. But guarding the information too closely is also a mistake. Many parents have been unable to access registries because they are unclear on how and where to do so. The restrictions a state places on the release of information should not be such a deterrent that parents are unable to benefit from the existence of the registries. A program of prudent active notification combined with community and police education has the potential to provide an appropriate balance.Fortunately, this balance has been found and is being practiced in several states.

A fundamental problem when deciding who to notify and whether notification is fair to the offender is that of surmising the dangerousness of the offender and how likely it is that he will commit another sex crime. In Washington state, lawmakers have come up with a system of classification that serves as a model for other states. Before an offender is released, a panel examines his history and propensity for violence, how receptive he has been to treatment, whether he will have support from family and friends after release, and whether he will be able to find employment. He is then placed into one of three categories with corresponding notification procedures. With such a classification scheme, the level of risk posed is known and authorities will be clear on who to warn and what information to give them, minimizing the impact on the offender while providing parents with the resources they need to safeguard their children.

Members of the first category, made up of the lowest risk offenders, including those arrested for incest and indecent exposure, are required to register but are not subject to notification (California 2001). Opposition groups claim that adults arrested for consensual sodomy will be subject to notification and that the law violates the civil rights of homosexuals. However, very few states currently impose laws against consensual sodomy, and, in states where consensual sodomy is still illegal, laws do not require notification but only registration, with some states setting even this aside. Exposing adults convicted of consensual sodomy to their communities is unacceptable, to be sure, and an ideal state would not even have laws against consensual sodomy. However, the fact that not all states have perfected their laws as of yet to avoid such does not negate the positive aspects of Megan’s Law. (Note: this was written before the Supreme Court struck down sodomy laws, a decision which has only strengthened my argument, natch.)

Moving on to the second category of offenders, these positive aspects become obvious. Those offenders classified as serious have been convicted of crimes such as “rape, sodomy with a minor by force, … oral copulation with a minor or by force, continuous sexual abuse of a child, foreign object penetration, … kidnapping with intent to commit [a sexual assault], … [or] felony sexual battery,” just to name a few (California 2001). As recidivism rates in this group are high enough to cause alarm, law enforcement would be remiss if they did not warn those who might be in danger once the individual is released. Therefore, model states that practice active notification distribute information about offenders who pose a serious risk only to those likely to be in danger. Candidates for this type of targeted notification might include childcare centers, schools, and shelters for women and children. The argument that targeted notification violates the privacy rights of the offender is heavily outweighed, for example, by the right of a childcare center to know whether a job applicant is a convicted child molester.

High-risk offenders make up a small percentage of the total and, in model states, are subject to wider notification. The characteristics that could cause an offender to be classified as high-risk include compulsive violent sexual behavior, a sexual preference for minors, refusal of treatment, lack of remorse for committing sex crimes, or recent threats related to committing new sex crimes. “An alarming number of these offenders say, ‘Yeah, if you let me go, I may do it again…’” (Allen 1319). Considering the fact that, once he has served his sentence, the prisoner who warns that he will commit a new crime will be released anyway, leaving the members of his community in the dark about his propensity for sex crimes is unconscionable. As many of these individuals, when interviewed, have “… claim[ed] the ability to identify and use vulnerabilities in a potential victim to gain access to and maintain control over the child,” they are considered a real threat (“Sexual Offenders,” 2003). It is terrifying to imagine an offender who looks for children with single parents or children who display shyness, neediness, or unhappiness because he knows they will be easy to victimize. According to Ernie Allen, CEO of the National Center for Missing and Exploited Children, “… the worst thing we can do is provide [these individuals] with anonymity” (1369). In high-risk cases, model states expand notification to those who would be likely to come into contact with the offender, including and limited to neighbors and, in some cases, employers. As “… a significant subset of the sex offender population represents the highest risk of reoffense [and is] coming back into our communities,” parents need to be armed with the information they need to protect their children from these predators (Allen 1369).

The likelihood of recidivism among sex offenders is a contentious issue. The problem is that any statistics regarding recidivism are limited by the fact that the majority of victims do not report being assaulted. With child sexual abusers having an average of 72 victims (“Sexual Offenders,” 2003), it is no surprise that 13% are convicted of another sex crime within five years (“Myths and Facts…” 2003). Some sex offenders are not arrested for another offense within five years. When the time limit is removed, 43% of untreated child sexual abusers will commit another sex crime against a minor (“Sexual Offenders,” 2003). As far as treatment is concerned, it cannot be very effective if “less than 25% of probation officers…” think it works (“Sexual Offenders,” 2003). That point is driven home by the fact that, because almost all states exempt juvenile sex offenders from notification, “The average adolescent sex offender will, without treatment, go on to commit 380 [future] sex crimes…” (“Sexual Offenders,” 2003). Add to these numbers the fact that for every sex crime reported, several go unreported and it becomes difficult to argue that recidivism rate are not high enough to warrant notification.

Opponents have also attacked the effectiveness of notification. A commonly cited ten-year study claimed, “public notification… made almost no difference in the rate at which sex offenders re-offend” (Axtman 4). There are several reasons this could be the case. With parents and police keeping an eye on the offender, he may be more likely to be caught. Also, when parents are aware of an offender’s identity and warn their children, victims are more likely to report the assault because fear of disbelief is cut down. Aside from these problems, the study is irrelevant as an argument against the law because an offender’s choice to commit a new sex crime does not invalidate the right of a parent to be aware of a dangerous individual with access to his or her child.

Regardless of whether they cut down on rearrest, police generally believe that notification and registration do cut down on sex crimes because parents are given more power and responsibility in protecting their children. Nadine Strossen, President of the ACLU, claims that notification laws “only violate the civil rights of adults [and are] …merely symbolic…” (Allen 1369). A mother who has information about the sex offenders in her neighborhood would probably disagree. Strossen also stresses that narrow notification would leave those outside the scope unprotected, which counters her own argument that notification is not necessary.Strossen repeatedly argues that parents need to take more responsibility for the safety of their children and not rely on authorities to notify them of the presence of offenders (Allen 1369), butMegan’s Law allows them to do so by equipping them with information about where the danger lies and how to avoid it.

Two other issues have been frequently broached as minor arguments against Megan’s Law. Both are valid concerns, but, with time, they will be worked out as states perfect their laws. One is that compliance with registration and notification laws is a concern among law enforcement officials. With the disparity between states on the implementation of Megan’s Law, it is argued that offenders are likely to migrate to areas with less vigorous notification programs. However, as the bugs are worked out of the law and it becomes uniform, these offenders will no longer be able to find places to live in obscurity. Additionally, arresting offenders who do not register will further cut down on noncompliance. The second problem is that police agencies are unsure of how the law works and are afraid of making mistakes that might cause community unrest. This is a real problem, but, as the law is refined, officers will be equipped with the education they need to apply the laws in their jurisdictions and inform their communities. As Ernie Allen has pointed out, this problem has been eliminated in Washington state with educational programs for police and with police-led community “…discussions before the offender is ever released” (Allen 1369). This cuts down on harassment of the offender and gives parents an idea of what they can do to protect their children. Again, it will take time to iron out both of these problems, but they do not render Megan’s Law useless, only in need of improvement.

Opposition groups often claim that Megan’s Law focuses its attention away from the real danger to children: their own families. They argue that our fears of local registered offenders are blown out of proportion because approximately 80% of sexual assault victims are acquainted with the perpetrator. There are several holes in this argument. First, Megan Kanka knew Jesse Timmendequas, as most children know their neighbors. Children are also acquainted with teachers, childcare workers, Boy and Girl Scout leaders, sports team coaches, employees of stores in the neighborhood, and many others. In fact, Ernie Allen countered this argument with the fact that only about “one-third to one-fifth of sexual abuse cases against girls are perpetrated by family members,” with even lower numbers for males (1369). A second problem with this argument is related to recidivism. The recidivism rate for incest is 9% within five years, while the rate for non-family sexual abuse of female children is 18% and an alarming 35% for males (“Myths and Facts…” 2000). Yet a third problem with the argument is that, in a model state, incest is not even subject to notification unless a child has been continuously sexually abused, in which case notification would be justified. Finally, Megan’s Law does not pretend that it can remove all danger to children, so the fact that it does not protect children from family members is irrelevant because no one has claimed that it can.

Offenders and their supporters complain that notification is a form of ex post facto punishment and that they have already paid their debt to society by serving their prison sentences.Unfortunately for them, the United States Supreme Court does not agree. As recently as March of 2003, the Supreme Court ruled that Megan’s Law was regulatory and did not constitute further punishment and that states could even make sex offender registry information available on the Internet (Willing 2003). Justice Anthony Kennedy stated that “The act’s stigma results not from public display for ridicule and shaming but from dissemination of accurate information about a criminal record, most of which is already public” (Richey 2003).Offenders also claim that they are unfairly shamed by notification, but “any stigma that flows from this information is a product not of registration and notification but of the criminal offenses for which theses offenders have been convicted” (Allen 1369). Just as a murderer knows that he may face the death penalty when he commits his crime, a sex offender is aware that, if caught and convicted, he will be subject to community notification. That a sexual predator does not take the consequences into account before destroying the life of a child does not make those consequences unfair.

An issue repeatedly raised in arguments against community notification is vigilantism.Offenders claim that they are exposed to harassment and, in some cases, violence once the community is made aware of their presence. Harassment does occur, but it is quite rare. In Washington State, almost 10,000 sex offenders were registered between 1990 and 1996.Of this group, 940 were subject to notification. Out of these 940, only 33 reported incidents of harassment, just over 3% (Allen 1369). This number is tiny when compared with recidivism rates. As a preventative measure, when citizens are notified of an offender’s presence they are usually warned at the same time, as in Washington, that vigilantism and harassment carry stiff penalties. This is usually enough to deter a potential harasser, but it has been demonstrated that penalties do not deter sex offenders. On top of that, while harassment is unfair and arguably should never occur, it is much less damaging than a sexual assault. Both sides are attempting to prevent new crimes from being committed, but sex offenders are simply more likely to commit new crimes than regular citizens.

A perfect balance between the rights of children and their parents and the rights of convicted sex offenders may not be possible. When considering these rights, most would tend to favor innocent children over sex offenders. The unfortunate reality is that, in several areas of our society, “… laws reduce the rights of some… in the name of protecting others,” and we have to choose whether we want to infringe upon the rights of “…offenders who represent the highest risk… to the most vulnerable sections of the community” in order to protect those sections (Allen 1369). It is a fact that society has deemed certain crimes worse than others, which is why sexual assault is a felony and verbal harassment is not. The suffering experienced by Maureen and Richard Kanka, and by their daughter, is exponentially worse than that suffered by a convicted sex offender whose house has been picketed. Because it is not possible to protect the public from sexual predators at the same time we protect the absolute privacy of offenders, we have to accept the less potentially damaging of the two options.

The fact that Megan’s Law is not perfect does not render it useless. Applied uniformly and perfected, it has the potential to drastically cut down on some of the worst crimes our society faces. Stiffer prison sentences for sex offenders would be ideal, but until legislatures across the nation make major changes in the way they hand out penalties, something has to be done to protect the public from the most dangerous criminals. A combination of stiffer sentences, treatment during incarceration, and risk assessment for parolees, if implemented nationwide, would remove a large part of the risk alone. Then, after release, cautious active notification coupled with police and community education would offer the maximum protection for both the sex offender who wishes to live free of harassment, and, more importantly, the family who deserves to be able to protect their children. Stiff penalties for noncompliance on the offender’s part and for vigilantism on the community member’s part would eliminate peripheral concerns. Each of these ideas has been successfully implemented by at least one state as of yet. If they were all applied consistently, sexual predators would have no place to hide without community awareness and we could reap the maximum benefit of Megan’s Law while still minimizing the impact on offenders who are trying to rehabilitate themselves.

Works Cited

Allen, Ernie, Walter Pincus, and Nadine Strossen. Transcript of a panel discussion. “Megan’s Law and the protection of the child in the on-line age.”American  Criminal Law Review 35.4 (1998): 1319.

Axtman, Kris. “A Tussle over Right to Know Where Ex-Sex Offenders Live.” Chrisitan Science Monitor 30 May 2001: 3-4.

California. Dept. of Justice. Office of the Attorney General. Registered Sex Offenders (Megan’s Law). 2001. 14 Oct. 2003 <http://caag.state.ca.us/megan/index.htm&gt;.

“Myths and Facts About Sex Offenders.” Center for Sex Offender Management. Aug. 2000. 5 Nov. 2003 <http//:www.csom.org/pubs/mythsfacts.html>.

Parents for Megan’s Law. 2003. Megan’s Law and Childhood Sexual Abuse Prevention  Clearinghouse. 14 Oct. 2003 <http://www.parentsformeganslaw.com/&gt;.

Richey, Warren. “Megan’s Law Upheld: High Court Allows Internet Lists That Track Sex Offenders.” Christian Science Monitor. 6 Mar. 2003: n.p.

“Sexual Offenders.” Illinois Coalition Against Sexual Assault. 2003. 15 Nov. 2003 <http://www.icasa.org/uploads/sexual_offenders.pdf&gt;.

Willing, Richard. “Albuquerque’s targeting of sex offenders challenged.” USA Today. 11 May 2003: n.p.


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8 Responses to “The Background to Deuce’s Law”

  1. ZMan June 12, 2008 at 7:52 AM #

    I do not agree with a lot of issues you bring up in this article, and I won’t go into them here, but I have a blog on many recidivism studies, articles, and tons of vigilante acts being carried out.

    http://sexoffenderissues.blogspot.com/

  2. Nine Deuce June 12, 2008 at 3:09 PM #

    You clearly didn’t read what I said. I argued that WA state has the best program and has minimized the incidence of vigilantism, and that other states ought to follow its model. That problems exist within the Megan’s Law system is a given, but I have shown that it has the potential to limit the danger posed by sex offenders, which is all I claimed to do.

  3. ZMan June 13, 2008 at 1:47 AM #

    So what do you think about this article from Human Rights Watch on my blog?

    http://sexoffenderissues.blogspot.com/2007/09/sex-offender-laws-may-do-more-harm-than.html

  4. Nine Deuce June 13, 2008 at 2:02 AM #

    I think it addresses different types of sex offender programs than the one I posited might be the best option. I don’t think that residency restrictions are a problem, provided that they are reasonable. The problem is the ones like the California initiative that would make it virtually impossible for offenders to live anywhere but rural areas.

    Still, if you read the paper, I argued that the ideal solution would be harsher prison sentences, and the second choice would be a nationwide active notification scheme like the one in Washington state. That would do a lot to obviate the need for residency restrictions.

  5. ZMan June 13, 2008 at 6:15 AM #

    You are forcing people, who have already been convicted and signed a “contract”, have done their sentence and time, and now they are being punished over and over again. That is unconstitutional, period.

    Also, 90% or more of sex crimes occur by someone known to the victim, and it has not been proven that residency restrictions work, they are just feel good laws that don’t and aren’t working.

    Next they will be wanting to put all sex offenders into concentration camps, and many aspects of these laws are similar to the communist Germany stuff they did back in the 30’s.

    Check out my thoughts, and let me know what you think about them, if you don’t mind?

    http://sexoffenderissues.blogspot.com/2007/04/my-thoughts-sex-offender-law-issues.html

  6. Nine Deuce June 13, 2008 at 3:34 PM #

    I don’t agree that registration and notification amount to ex post facto punishment, as I said in the paper. Everyone knows what the penalties for sex offenses are, so the argument that registration and notification aren’t fair because they amount to extra punishment is faulty.

    As such, I dispute the idea that the penalties for sex crimes are cruel and unusual, and therefore I don’t see how they can be considered unconstitutional. Besides, the Constitution is not a divine document. There are problems with it, and it does not serve modern needs. Our current sex crime laws are much too lenient, and we need longer prison sentences. Like I said repeatedly in the paper, I am more concerned with protecting the right of innocent children and women from sexual abuse than I am with protecting the purported “right” of a convicted sexual predator to live in anonymity.

    You keep referring me to information about residency restrictions. I’ve already told you that I don’t think the more extreme form of residency restrictions are fair or feasible. What I am advocating is reasoned registration and notification programs, carried out nationwide.

    I do know that a large portion of sex crimes are committed by people the victim knows, and I also addressed that in the paper. People know neighbors, teachers, family friends, coaches, neighborhood store employees, etc. Why would the fact that acquaintances commit most sex crimes mean that notification is a bad idea? I would think that parents would especially want to know if there are people working with their children or living nearby that might pose a risk. And in the case of incest, notification doesn’t attach in most cases.

    You can bring up Nazi Germany, but it’s dishonest. Nazis imprisoned and killed innocent people as a part of a racially-based genocide program. I’m talking about keeping tabs on CRIMINALS who pose a serious danger to the most vulnerable members of society. I am not going to feel sorry for people who have destroyed the lives of innocent people and then want to whine about the punishment for their crimes not being fair.

  7. ZMan! June 13, 2008 at 11:56 PM #

    Ok, well, I disagree. So I’ll leave it at that.

  8. Imaginary September 28, 2009 at 12:57 PM #

    I don’t know if any of you have seen Inglourious Basterds, but I think Brad Pitt’s character had it right. Mark them. Ha ha!

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