intresting artical

http://www.nacdl.org/public.nsf/0/49866029f7f8475c852576d6005aad6a?OpenDocument December 2009, Page 20 Registering Harm: The Adam Walsh Act and Juvenile Sex Offender Registration By Nastassia Walsh; Tracy Velazquez When members of Congress passed the Adam Walsh Child Protection and Safety Act (AWA) in 2006, their intention was to keep children and families safe from violent sexual predators. Through Title I of the AWA — the Sex Offender Registration and Notification Act (SORNA) — policymakers sought to increase penalties for sex offenses and the information available to the public on people convicted of sex offenses. However, in this push to target people who may actually pose a significant danger to the public, policymakers may end up doing more harm than good. This is particularly the case when it comes to youth who have been convicted of sex offenses. SORNA is unlikely to increase public safety, and its provisions requiring long-term or lifetime registration are particularly damaging and inappropriate for young people convicted of a sex offense. Although Ohio is the only state currently in compliance with SORNA, a number of states are working to fully implement the Act. Provisions Regarding People Convicted of Sex Offenses The Adam Walsh Act was passed to protect children by creating federal standards for various offenses. SORNA, Title I of the AWA, expands federal guidelines regarding what is classified as a sex offense;1 increases penalties for sex offenses adjudicated in federal courts;2 provides a comprehensive set of minimum standards for sex offender registration and notification in the United States;3 standardizes (to three days) the time allowed for registrants to report changes in address or other status;4 creates a national registry for people convicted of sex offenses from these state registries;5 and requires that the registry be available on the Internet.6 While the federal government cannot mandate that states implement the provisions of SORNA, states will be penalized 10 percent of their federal Justice Assistance Grant funds if they do not implement SORNA.7 The original July 2009 deadline for implementation has been extended by one year. While there has been previous federal legislation addressing registration and community notification of people convicted of sex offenses, SORNA represents the first time the federal government has stipulated that children be placed on registries. Youth ages 14 and up must be put on the registry if prosecuted and convicted as an adult or (a) if he or she is 14 or older at the time of the offense and (b) he or she is adjudicated delinquent for an offense comparable or more serious than “aggravated sexual abuse” or adjudicated delinquent for a sex act with any victim under the age of 12.8 The only exception is a “Romeo and Juliet” clause, which excludes from registration youth who engage in consensual intercourse when they are no more than four years older than the other party and the other party is at least 13 years old.9 SORNA Will Not Make Children Safer There is little evidence that registries and notification systems for people convicted of sex offenses are effective ways of improving public safety or deterring future sex offenses. To date, only one study has been able to correlate registration with reduced recidivism. This reduction was confined to perpetrators known to the victims; there was no correlation to offenses by strangers, the primary focus of community notification.10 Not only does SORNA explicitly indicate that members of the public have access to a searchable Internet registry of people convicted of sex offenses, but it also requires notification directly to various agencies in the registered person’s community. Studies indicate that any slight improvement in public safety due to increased awareness of potential predators is likely offset by the harm done by “branding” people.11 Being on a registry can hinder access to the sort of re-entry and preventative services needed to lead a stable life. The links between barriers to education, employment, housing, and treatment and involvement in the criminal justice system have been well documented.12 Barriers to these basic services can inhibit a person from being successful in the community, and may actually encourage delinquent behavior.13 Community notification and registry laws also exacerbate the stress felt by any person released from prison; such stress can trigger new offenses.14 It appears that there is a basis for this stress. In addition to the day-to-day difficulties of living in the community that people convicted of sex offenses may face, there have been numerous reports of vigilantism against people on the sex offender registry, including harassment, threats, and even murders.15 A qualitative study found that 47 percent of people surveyed had been harassed in person and 28 percent had received threatening phone calls as a result of being on the sex offender registry; 16 percent had been assaulted.16 Above and beyond the effectiveness of community notification and registries, SORNA is unlikely to reduce sexual crimes against children because its provisions are primarily targeted at “stranger danger.” As the chart in Figure 1 shows, in 93 percent of sexual assaults on children, a family member or acquaintance victimizes the child. Therefore, even if SORNA implementation were to result in a 10 percent decrease in victimizations of children by strangers, this would only result in a total decrease in sexual assaults of less than one percent. Registration and community notification laws are aimed at reducing the chances that someone will commit another sex offense because there is a misunderstanding that people who commit sex offenses have high recidivism rates. However, research demonstrates that people convicted of sexual offenses are not likely to commit new sex offenses. A meta-analysis of 61 separate studies on patterns of recidivism for people convicted of sex offenses concluded that 13.4 percent of the 23,393 individuals in the study committed a new sexual offense.17 A large-scale study on recidivism by the U.S. Department of Justice found that for people released from prison after being convicted of any offense, not just sex offenses, 67.5 percent will be re-arrested for any new offense within three years. The recidivism rates for people convicted of sex offenses in this study were considerably lower:18 while 46 percent of people convicted of rape were re-arrested for any offense within three years of release, just 2.3 percent were re-arrested for rape. Only 5.3 percent of people released from prison after being convicted of any sex offense were re-arrested for another sex offense within three years.19 In other words, recidivism rates of people convicted of sex offenses are lower than the national average for all offenses. Focusing on this small population can take resources away from law enforcement and may be more likely to result in people “feeling safe” rather than having a real impact on public safety. Including Youth on Sex Offender Registries What is wrong with including youth as young as 14 in SORNA provisions? Youth who commit offenses should be held appropriately accountable. However, placing youth on sex offender registries is counterproductive both for the person and for society. Requiring youth to register does not improve public safety and may make it worse. Placement on a registry can be detrimental to a young person’s development, making it difficult to progress through school and to participate in appropriate adolescent activities. The Annie E. Casey Foundation’s annual Kids Count Data Book keeps tally of “disconnected” youth (youth who are not working or in school) as a factor in child well-being. In other words, the young people who are connected to school or work are generally expected to have better life outcomes.20 Youth who are labeled “sex offenders” often experience rejection from peer groups and adults. They are therefore more likely to associate with delinquent or troubled peers and less likely to be attached to social institutions such as schools and churches.21 Youth who are detached from normative social institutions may be more likely to engage in illegal behavior. Youth sex offending is different from adult sex offending. Young people are still developing physically and emotionally and are thus highly amenable to change. Research by mental health professionals working with youth who commit sex offenses indicates that the nature and intention of youthful sexual experimentation is not considered predatory or aggressive. According to the National Center on Sexual Behavior of Youth, the vast majority of youth sex offenses are manifestations of nonsexual feelings. Youth engage in fewer abusive behaviors over shorter periods of time and engage in less aggressive sexual behavior.22 Youth rarely eroticize aggression and are rarely aroused by child sex stimuli. Most youth behavior that is categorized as a sex offense is activity that mental health professionals do not label as predatory.23 Therefore, using an adult registration system for youth does not fit, likely has no public safety benefit, and therefore should not be applied to youth. Youth who commit a sex offense are unlikely to commit sex offenses as adults. A 2005 study that reviewed youth recidivism rates in 27 states found that 55 percent of youth in the juvenile justice system for any offense were re-arrested within one year and 24 percent were re-imprisoned for any offense, not just sexual offenses.24 In contrast, a 2002 review of 25 studies concerning juvenile sex offense recidivism rates reveals that youth who commit sex offenses have a 1.8–12.8 percent chance of re-arrest and a 1.7–18 percent chance of reconviction for another sex offense.25 The recidivism rate of youth who commit sex offenses is low compared to other offenses. A 2007 review of a longitudinal data set of three cohorts of youth in Wisconsin found that of men who had contact with police for a sex offense as youth, only 8.5 percent had contact with police for a sex offense as adults.26 In other words, more than nine out of 10 times, the arrest of a youth for a sex offense is a one-time event. The study also showed that youth who have committed a sex offense are no different from youth who commit other nonsexual offenses and would likely benefit from similar interventions. It goes on to say that putting youth on sex offender registries “would have little effect on the prevention of sex crimes and, thus, do little to protect the public.” Youth registration can have damaging collateral affects on families. According to the Association for the Treatment of Sexual Abusers, “SORNA as applied to youth will disrupt families and communities across the nation because SORNA does not just stigmatize youth; it stigmatizes the entire family.”27 In the frequent case where the victimization is by a family member, having that person on the sex offense registry will not protect the victim and may cause other detrimental effects to the family.28 Having a family member on the registry puts an extra burden on the family, who may wish to aid or support their loved one as the family member struggles to get back on his or her feet after being released from prison. Although most people released after being convicted of a sex offense do not have this sort of family support, “for those who do, such relationships are severely strained under the thumb of such laws because the community’s ostracism of the individual now often extends to anyone willing to support or assist him or her.”29 Having support and a place to stay while trying to regain their lives can be critical for offenders when trying to keep them from repeating past behaviors. Registries and community notification have the power to push individuals and whole families out of stable housing. This can be extremely detrimental to young people who are trying to complete their education and find adequate employment. As many states are now also imposing residency restrictions on people convicted of sex offenses, youth on registries may find they cannot live with their families and must support themselves at an early age. Additionally, placing a family member on the registry may inadvertently identify the victim, often causing embarrassment and shame. And the threat of having a family member on the sex offender registry may lead some families to resist reporting sexual abuse, both for fear of public reproach and out of concern for the long-term consequences for the individual. In this case, the victim and the offending family member may not receive the treatment they need. Reports in New Jersey and Colorado suggest a decrease in the reporting of both incest offenses and juvenile sex offenses by victims and family members who do not want to deal with the impact of public notification on their family.30 Finally, the safety of both the individual on the registry and others in the family might be compromised. Being listed on an Internet Web site makes youth vulnerable to others who might prey on children. A study of 183 people participating in sex offense treatment in Florida found that approximately 19 percent reported that other members of their household had been “threatened, harassed, assaulted, injured, or suffered property damage” as a result of living with someone on the sex offender registry.31 The psychological and emotional impacts of registration are magnified in youth. For youth, registries and notification systems are particularly damaging to developing brains,32 increase the risk of suicide, alienate a youth from school and community, and raise barriers to successful participation in society.33 Research on adolescent brain development indicates that youth are particularly vulnerable to the stigma and isolation that registration and notification create.34 To be labeled and therefore self-identified as a “sex offender” as a child will likely permanently undermine a person’s self-worth and create lasting mental health problems such as depression and substance abuse. In many cases, being on a sex offender registry locks a person out of participation in residential treatment facilities. Placing youth on sex offense registries is contrary to the purpose of the juvenile justice system. The juvenile justice system was founded on the premise that youth are different from adults and need to be held accountable in age-appropriate ways. As the U.S. Supreme Court recognized in Roper v. Simmons,35 the landmark case that outlawed the juvenile death penalty, children are categorically less culpable for their actions than adults. This should mean that the state cannot punish children in the same manner it uses to punish adults, particularly because the part of a young person’s brain that deals with judgment and risk assessment is not fully formed. Since their brains are still developing, youth are even more amenable to appropriate and effective treatment.36 Juvenile court judges are experts in assessing the culpability and rehabilitative potential of young people, and youth involved in the juvenile justice system typically receive more treatment and rehabilitative services than they would if they were treated as adults.37 The juvenile justice system was also intended to ensure that participation in delinquent acts did not interrupt adult pursuits of employment, education, and other endeavors. Posting a youth on a national public registry undermines that provision of the juvenile court. SORNA requires that youth adjudicated in the juvenile justice system of certain offenses be placed on sex offender registries, sometimes for the rest of their lives. Requiring youth to register as sex offenders is contrary to the very principles of the juvenile justice system. Next Steps for Advocates The prevention of sexual violence should be a priority for policymakers and the criminal and juvenile justice systems. And youth should be held appropriately accountable for their actions. However, the registration and community notification of youth convicted of sex offenses is unlikely to improve public safety, can have a lifetime of negative effects on a young person, and often penalizes an entire family. Placing a young person, or any person, on a public sex offense registry lowers the ability to lead a productive life in the community, makes it difficult to maintain employment or obtain an education, and often restricts housing options. Additionally, youth who are on public registries have personal information displayed for everyone to see, which may put them or their families at risk. Some states are beginning to recognize that SORNA will have little or no public safety benefit and may come at a huge cost, both to state budgets and to people on the registry, especially youth. As of October 2009, the Department of Justice has declared that only one state (Ohio) is in substantial compliance with the Adam Walsh Act.38 Moreover, on May 26, 2009, Attorney General Eric Holder granted a one-year extension to states to give them additional time to comply with SORNA. The new compliance deadline is July 27, 2010. Some groups are advocating that congressional hearings be held and the Act’s implementation be suspended. It is imperative that the public, policymakers, and the courts become informed about the negative effects of the Act and why youth should not be placed on either state or federal sex offender registries. Advocates in states that are considering whether to comply with the Adam Walsh Act can help policymakers and court officials understand the potential impact of compliance. Determine what the state laws are. It is likely that complying with AWA will overstep laws already in place and require new policies that will impact the state budget. It is likely to be extremely expensive for a state to comply — far more than the penalty the federal government will impose for not complying. Evaluate whether including children as young as 14 on public registries comports with the state’s juvenile justice system. Will publicly identifying these children and their families undermine the state system? Will such a registry foreclose therapeutic and rehabilitative options for that child? Advocates in states that have decided to comply with the Adam Walsh Act should ensure that practice follows policy, particularly in the courtroom. Ensure that placing children on a public registry does not violate the state constitution, especially with regard to a child’s right to treatment, privacy, rehabilitation, and due process.39 Ensure that no child 13 or younger is placed on a public registry for any reason.40 Ensure that no individual is placed on the registry for consensual sexual contact, as long as the victim is at least 13 years old and the offender is no more than four years older than the victim.41 Ensure that the state has developed procedures for children placed on the registry to petition for removal 25 years after the date of their adjudication.42 Ensure that the state is prepared to meet its legal obligations to provide for the educational, mental health, and rehabilitative needs of children who are publicly labeled as sex offenders. Advocates everywhere can promote strategies that prevent sexual violence. For example, advocates can push for a comprehensive continuum of interventions for children and families that are at risk or in crisis that includes mental health services, youth development programming, and vocational and educational programs. Research shows that the majority of children who experience sexual violence are abused by family members or other people known to them and their parents. Advocates can support training for teachers, social workers, coaches, and the faith-based community so that they can better recognize the signs of sexual abuse in children. Moreover, advocates can support programs for children that explain what to do if they are being sexually abused or are at risk of being abused. For too long, public policies around sex offending have been driven by politics and false perceptions. The Adam Walsh Act and SORNA provide one example — one that will have particularly toxic results, especially for youth. Hopefully, everyone involved can begin to move past emotion and rhetoric and start to put in place more rational, effective policies for all. Notes 1. 42 U.S.C. § 16911. 2. 42 U.S.C. § 16911(5)A(iii). 3. 42 U.S.C. § 16911. 4. 42 U.S.C. § 16913(c). 5. 42 U.S.C. § 16920. 6. 42 U.S.C. § 16918(a). 7. 42 U.S.C. § 16925. 8. “Aggravated sexual abuse” (18 U.S.C. § 2241) covers: (a) engaging in a sex act with another by force or threat of serious violence; (b) a sexual act by rendering unconscious or involuntary drugging; or (c) engaging in a sexual act with a child under 12 (see 18 U.S.C. § 2241(c)). 9. 42 U.S.C. § 16911(5)(C). 10. J.J. Prescott & Jonah E. Rockoff, Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?, National Bureau of Economic Research Working Paper No. 13803 (2008) (www.nber.org/ papers/w13803). 11. Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the Comm. on the Judiciary, 109th Cong. (June 9, 2005) (testimony of Fred Berlin, M.D., Associate Professor, Johns Hopkins University). 12. Robert G. Zevitz & M.A. Farkas, Sex Offender Community Notification: Managing High-Risk Criminals or Exacting Further Vengeance?, 18 Behav. Sci. Law 375-391 (2000); Justice Policy Institute, Housing and Public Safety (2007); Justice Policy Institute, Education and Public Safety (2007); Justice Policy Institute, Employment, Wages and Public Safety (2007). 13. Id. 14. William Edwards & Christopher Hensley, Contextualizing Sex Offender Management Legislation and Policy: Evaluating the Problem of Latent Consequences in Community Notification Laws, 45 Int’l J. Offender Therapy and Comp. Criminology 83, 89 (2001). 15. Sex Offender’s Home Is Burned, N.Y. Times, July 13, 1993; Glenn Adams, Maine Killings Raise Questions About Sex Offender Registries, San Diego Union-Trib., April 17, 2006; Jerry DeMarco, Innocent Man Beaten, Mistaken for Sex Offender, The Record (Bergen County, NJ), January 11, 1995; Robert Hanley, Shots Fired at the House of a Rapist, N.Y. Times, June 17, 1998. 16. Richard Tewksbury, Collateral Consequences of Sex Offender Registration, 21 J. Contemp. Crim. Just. 67-81 (2005). 17. R. Karl Hanson & Monique T. Bussiere, Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies, 66 J. Consulting Clinical Psychology 348-362 (1998). 18. Patrick A. Langan & David J. Levin, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1994 (2002), available at http://ojp.usdoj.gov/bjs/abstract/rpr94.htm. 19. Patrick A. Langan, Erica L. Schmitt & Matthew R. Durose, Bureau of Justice Statistics, Recidivism of Sex Offenders Released From Prison in 1994 (2003), available at http://ojp.usdoj.gov/bjs/pub/pdf/rsorp94.pdf. 20. Annie E. Casey Foundation, 2008 Kids Count Data Book (2008). 21. Franklin E. Zimring, et al., Sexual Delinquency in Racine: Does Early Sex Offending Predict Later Sex Offending in Youth and Young Adulthood?, 6 Criminology & Pub. Pol’y 507-534 (2007). 22. Nat’l Center on Sexual Behavior of Youth, Center for Sex Offender Management (CSOM) and the Office of Juvenile Justice and Delinquency Prevention, Juveniles Who Have Sexually Offended: A Review of the Professional Literature Report (2001). 23. J.A. Hunter, D.W. Goodwin & J.V. Becker, The Relationship Between Phallometrically Measured Deviant Sexual Arousal and Clinical Characteristics in Juvenile Sexual Offenders, 32 Behav. Research Therapy 533-538 (1994); J.V. Becker, J.A. Hunter, R.M. Stein & M.S. Kaplan, Factors Associated With Erection in Adolescent Sex Offenders, 11 J. Psychopathology & Behav. Assessment 353-363 (1989); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (1994). 24. Virginia Department of Juvenile Justice, Juvenile Recidivism in Virginia, DJJ Research Quarterly (2005); cited in Howard N. Snyder & Melissa Sickmund, Office of Juvenile Justice and Delinquency Prevention, Juvenile Offenders and Victims: 2006 National Report (2006), available at http://ojjdp.ncjrs.org/ojstatbb/nr2006/ (re-arrest: 55 percent of juveniles released from facilities in Florida, New York, and Virginia were re-arrested within one year; re-conviction/re-adjudication: 33 percent of youth released from detention centers in Arkansas, Florida, Georgia, Kentucky, Maryland, North Dakota, Oklahoma, and Virginia were re-convicted or re-adjudicated within one year; re-incarceration/re-confinement: 24 percent of juveniles released from facilities in Florida, Maryland, and Virginia were re-incarcerated during the 12-month follow-up period). 25. Michael F. Caldwell, What We Do Not Know About Juvenile Sexual Re-Offense Risk, 7 Child Maltreatment 291-302 (2002). 26. Franklin E. Zimring, et al., supra note 21, see Figure 7. 27. Association for the Treatment of Sexual Abusers, Comments on Proposed Guidelines to Interpret and Implement the Sex Offender Registration and Notification Act (SORNA) (2007), available at www.atsa.com/pdfs/SORNA.pdf. 28. Jill S. Levenson & Leo P. Cotter, The Impact of Megan’s Law on Sex Offender Reintegration, 21 J. Contemp. Crim. Just. 49-66 (2005); 18 U.S.C. § 16911(5)(c), cited in Lori McPherson, Practitioner’s Guide to the Adam Walsh Act (2007), available at http://www.ojp.usdoj.gov/smart/pdfs/practitioner_guide_awa.pdf. 29. William Edwards & Christopher Hensley, supra note 14, at 90. 30. Robert E. Freeman-Longo, Prevention or Problem?, 8 Sexual Abuse: J. Research Treatment (1996), cited in William Edwards & Christopher Hensley, supra note 14. 31. Jill S. Levenson & Leo P. Cotter, The Impact of Sex Offender Residence Restrictions: 1,000 Feet From Danger or One Step From Absurd?, 49 Int’l J. Offender Therapy Comparative Criminology 178-205 (2005). 32. Franklin E. Zimring, et al., supra note 21. 33. Sarah Tofte, Human Rights Watch, No Easy Answers (2007), available at http://www.hrw.org/reports/2007/us0907. 34. Franklin E. Zimring, et al., supra note 21. 35. Roper v. Simmons, 543 U.S. 551 (2005). 36. Association for the Treatment of Sexual Abusers, The Effective Legal Management of Juvenile Sex Offenders (2000), available at http://www.atsa.com/ppjuvenile.html. 37. MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, Issue Brief 5: The Changing Borders of Juvenile Justice: Transfer of Adolescents to Adult Criminal Court (2008), available at http://www.adjj.org/downloads/3582issue_brief_5.pdf. 38. http://www.ojp.gov/newsroom/pressreleases/2009/SMART09154.htm. 39. 42 U.S.C. § 16925(b). 40. 42 U.S.C. § 16911(8). 41. 42 U.S.C. § 16911(5)(C). 42. 42 U.S.C. § 16915(b).

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