I’ve always been intrigued by common misconceptions. Even 200 years after Frankenstein was published, many persons still envision the titular character as a monster instead of its creator. Probably even more common is the belief that the Catholic Church considers the “Immaculate Conception” to be Jesus being born to a virgin when it instead means the Church considers that Mary was immune from Original Sin.
These misconceptions are innocuous, but there is another one that causes harm. This is the presumption that sex offenders are the most incessant and insatiable criminals. It is regularly stated that the recidivism rate of these offenders is the highest of all crimes. Politicians parrot it and Supreme Court Justice Anthony Kennedy put the number at “80 percent” when writing his majority opinion that allowed an exception to the Constitution’s ex post facto clause. Rep. Mark Foley one-upped the justice by claiming 90 percent commit the crime again. 90 percent sounds whopping, but is instead a whopper.
The truth is much different. So different that sex offenders have the second lowest recidivism rate, after murderers. This is one of those topics that’s hard to articulate because “sex offender” is the nails-on-chalkboard crime, where the mere mention of the deed gets people riled and vengeful.
These emotions and false numbers have been used to justify a number of Constitutionally dubious restrictions and punishments. This has included compelling admission of crimes that would seem violate the Fifth Amendment, retroactive registration that violate ex post facto protections, and post-sentence civil commitments that seem inconsistent with the Bill of Rights.
While I keep my civil liberties credentials polished, my aim here is not do quibble over the Constitutional rights of rapists. It is to point out that the numbers which are used to justify these restrictions are wrong and that in the process, harmless persons are ensnared.
Kennedy’s number came not from FBI statistics, but from a 1986 Psychology Today article he had read. The prison counselor who offered 80 percent gave no supporting documentation, and this number is far different from available statistics. Yet it is being used to justify draconian laws and is continuing to mislead the public three decades later. Kennedy’s erroneous description of a “frightening and high” recidivism rate had been quoted in 91 judicial opinions.
However, “Sex offenders are among the least likely criminals to recidivate,” wrote psychologist Timothy Fortney in the journal Sexual Offender Treatment. The numbers support Fortney’s assessment.
Reason Magazine cited a 2003 Justice Department study of 9,700 sex offenders, which found that just five percent were arrested for new sex crimes within three years of release. Two meta-analyses of studies involving 29,000 sex offenders found a recidivism rate of 14 percent after four to six years, and the numbers were 24 percent after 15 years.
This is less than other crimes, yet an assumption of recidivism is what drives mandatory minimum sentences, indefinite civil confinement, lifelong registration, residence and presence restrictions, employment bans, and passport and driver licenses that conspicuously declare the holder to be a monster.
When wrenching emotions are involved, laws are hastily passed without the usual hearings, expert testimony, or gathering of relevant information. Len Bias’ death prompted an emergency meeting of House members, after which Democrat William Hughes called for a mandatory five-year prison sentence for possessing 20 grams of crack with intent to distribute. This was an arbitrary number with no reason to think this amount of crack or resultant prison time was appropriate. Republicans countered with five grams because it was less than 20. There was no logic to any of this, it was just a moral panic playing out in halls of Congress.
Speaking of which, laws named after people are usually a giveaway that they were passed in a haphazard manner without thought of consequence. Megan’s Law, for instance, created a publicly-accessible registry of those deemed sex offenders.
This created false feelings of safety and of having done something constructive. But about 90 percent of persons arrested for sex crimes are first-time offenders who would not be on any registries. Also missing will be any serial child molesters who have yet to be caught. And more than 90 percent of such crimes are committed not by strangers, but by family members and friends.
Moreover, registries sometimes serve as a vigilante’s MapQuest. Michael Mullen used a registry to find and kill two men, while Lawrence Trant failed in his attempt to do the same. William Elliot and Joseph Gray were murdered by Stephen Marshall, who was hunting his next victim when he was cornered by law enforcement officers and committed suicide.
Gray had raped a child, while Elliott at 19 had sex with his 15-year-old girlfriend. Had this encounter taken place three weeks later, it would have been legal, yet Elliott and Gray ended up on the same list. Indeed, besides false recidivism assumptions, the other major flaw in this hysteria is that the registries leave the mild and meek indistinguishable from the depraved and dangerous.
In Illinois, a 14-year-old girl stepped in front of motorist Fitzroy Barnaby. After stopping, Barnaby stepped out of his vehicle and lectured her about safety. Because he grabbed her arm while doing so, Barnaby was convicted of attempted kidnapping of a minor and is on a sex offender register for life.
A similar permanent punishment forced a Georgia nursing home resident to move, then do so again when bus stops were added to verboten locations. She had been convicted of performing fellatio on a 15-year-old boy when she was 17.
Also on the Registry of the Reviled is 16-year-old Matthew Bandy, who was convicted of providing harmful material to a minors for showing a Playboy issue to fellow high schoolers. Bandy told Fox News, “I have to stay away from children. I cannot be around any area where there might be minors, including the mall, or the movies, or restaurants. To go to church I have to have written consent from our priest I have to sit in a pew without children.”
We know Bandy’s name because anything deemed a sex crime is an exception to laws that seal juvenile records. About one-fourth were under 14 when they did whatever they did that got them on the list, and at least one was only 10.
In 39 states, it matters not whether the crime was a pedophile digitally penetrating a 3-year-old or two teenagers having consensual relations. Just 11 of those states have Romeo & Juliet exceptions that negate registration requirements if the age difference is less than four years. Until about 25 years ago, some states had gender-specific statutory rape laws. In one beyond-absurd case, a 16-year-old California boy was convicted and spent three years on probation for having sex with his 17-year-old girlfriend. If he lives somewhere that, thanks to the Kennedy-authored ruling, mandates retroactive registration, his movement is restricted for life.
According to Human Rights Watch, at least five states require registration for adult prostitution and 13 mandate registration for taking a piss outside. In Texas, sex with your first cousin or adopted sibling will get you on the same type of list that features Jerry Sandusky.
These registries are similar to the public stocks in Colonial America except it never ends and the results can be deadly. Even if not fatal, being on the list means employment, residence, and movement restrictions. The length from prohibited locations is measured as the crow flies, so even if the 1,000-foot journey includes an impassible river or highway divider with no pedestrian path, the restriction remains firm. In some cities, the restrictions are so encompassing they leave literally no place for someone on the registry to live or be. And even when the criminal has committed a genuinely bad act, these punishments hinder them from turning around their lives.
Beyond that, a person’s threat level is the same whether they reside 950 from a school or 1,050. A related shortcoming is that persons seldom commit crimes in their home. These laws are as ineffective as would be one that prevented Charles Keating from living within 1,000 feet of a Savings & Loan.