Why Do Sex Offender Registration Laws Exist?

In 1994, a New Jersey child, Megan Kanka, was sexually assaulted and murdered by a man who, shockingly, turned out to be the family’s neighbor.  This brutal offense stunned residents throughout the state, and caused families everywhere to fear for the safety of their children.  The Kanka family was horrified to learn that the man who committed the attack against their daughter had previously been convicted of a sex offense.  The Kankas had been living next to a sex offender, and had no knowledge of the man’s history.

This tragedy spawned the speedy passage of sex offender registration laws designed to keep track of sex offenders and, in some cases, notify the community when these offenders reside nearby.  In New Jersey and many other states, these laws are commonly referred to as “Megan’s Law.”  To garner support for passage of Megan’s Law, New Jersey state legislators relied on old statistics that seemed to demonstrate a high likelihood of sex offense recidivism among convicted sex offenders.  With the passage of time, new scientific studies have repeatedly shown that these assertions are a myth; people with a sex offense conviction are extremely unlikely to reoffend.

But, despite the fact of low recidivism rates among “sex offenders,” why does the popular belief of insatiable compulsivity continue to dominate public opinion?

One reason is that the courts heavily influence popular opinion surrounding sex offenders.  In the 1990s, federal and state courts affirmed laws that imposed registration and community notification, primarily on the basis that these laws are “remedial” and not “punitive.”  In other words, the courts characterized Megan’s Law as a civil scheme solely intended to help protect the public from sex offense recidivism.  Megan’s Law was not intended, the courts said, to punish sex offenders.

In two of the most important cases of this early Megan’s Law era, judges mistakenly relied on statistics that are not derived from studies.  For example, in the New Jersey case, Doe v. Poritz, the court states:

Based on statistical and other studies the Legislature could have found, and presumably did find, the following facts, essentially reflected in its statement of purpose, and its enactment of the laws:

• [S]tudies describing recidivism by sex offenders indicate the severity of the problem the Legislature addressed in Megan’s Law. Studies report that rapists recidivate at a rate of 7 to 35%; offenders who molest young girls, at a rate of 10 to 29%, and offenders who molest young boys, at a rate of 13 to 40%. Further, of those who recidivate, many commit their second crime after a long interval without offense. In cases of sex offenders, as compared to other criminals, the propensity to commit crimes does not decrease over time…. [I]n one study, 48% of the recidivist sex offenders repeated during the first five years and 52% during the next 17 years….

The Court uses the words “could have found” and “presumably did find” the referenced statistics.  However, the statistics that were relied upon were not verified by the New Jersey court.

The United State Supreme Court has also relied on unsubstantiated false statistics.  In the case of McKune v. Lile,  Justice Kennedy states that sex offenders have a “frightening and high risk of recidivism,” and that it “has been estimated to be as high as 80%.”  In the article, “The Supreme Court’s Crucial Mistake about Sex Crime Statistics,” by Ira Ellman, the author identifies the origins of Justice Kennedy’s statement as stemming from an article published in Psychology Today from 1986.  This article is not a scientific study, but written based on the observations of a prison counselor about sentencing practices, not recidivism.

Mr. Ellman’s article sheds light on the truth about sex offense recidivism by identifying the important work being completed by leading scholar Karl Hanson.  Dr. Hanson has found that:

 Nearly 20% of the high-risk offenders committed a new sex offense within five years of release, and an additional 12% did not during the next 10 years.  But the 68% who hadn’t committed a new sex offense fifteen years after release rarely did later.  Indeed, none of the high-risk offenders who were offense-free after 16 years committed a sex offense thereafter.

[…]

About 97.5% of the low-risk offenders were offense-free after five years; about 95% were still offense-free after 15 years.

[…]

Released sex offenders are actually less likely to commit new felony of any kind, after release, than are other released felons.

The courts are beginning to catch onto the now available science on recidivism statistics.  In a recent Pennsylvania Supreme Court case, the court found that SORNA was unconstitutional as applied to juveniles as the recidivism statistics do not justify the constitutional intrusions.  The court cites recidivism statistics in the 2-7% range for juvenile offenders.

Change is a slow process.  If you are on Megan’s Law, and would like to change your circumstances, contact our law firm today to speak to a knowledgeable lawyer to learn about your options.

To read Mr. Ellman’s full article, go here.