A Call To Reason

Despite the urge to clamp down hard on all sexual offenders, evidence supports a more nuanced approach.

Since the mid-1990s, legislatures around the country have pursued a continuing and escalating course of action, from registration and community notification laws to civil commitment procedures, targeting individuals who have been convicted of sex-related offenses. From Capitol Hill to Beacon Hill, the sex offender registration laws are enacted with great fervor.

Despite the political popularity of these laws, however, there remains little evidence of their efficacy in reducing sexual crimes or in meaningfully increasing public safety.

In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, which required states to create and maintain a registry of sex offenders’ addresses. In 1996, Congress added a provision in the so-called Megan’s Law allowing for the public disclosure of an individual’s registry information.

Originally passed in 1996, the Massachusetts Sex Offender Registration Law classifies individuals into three levels depending upon the Sex Offender Registry Board’s determination of their risk of reoffending and the degree of dangerousness they pose to the public. The lowest level offenders, Level 1, must register with the board annually by mail, with no public dissemination of their registration information. Level 2 offenders must register at their police departments, while information on Level 3 offenders is made publicly available, including on the board’s website.

More recently, the federal Adam Walsh Child Protection and Safety Act in 2006 set minimum national standards for state sex offender registries and notification laws. Only three states have achieved substantial compliance with the federal law, with the rest, including Massachusetts, having secured compliance extensions until mid-2011. While the present Massachusetts registration law complies in some ways with the Adam Walsh Act, the Legislature will soon have to address a number of additional provisions, ranging from more frequent registration requirements for offenders to including Level 2 and perhaps even Level 1 offenders on the state’s Internet registry.

In updating the state’s sex offender registration law, legislators should avoid the temptation to further exacerbate the public perception that former sex offenders pose the preeminent public safety threat of our time, making city streets unsafe for children, as the reality does not reflect such risk.

Proponents of tougher restrictions on sex offenders often highlight high profile cases, especially ones that involve the sexual assault and killing of a child victim. While these cases remain among the most horrible crimes imaginable, and cast a long shadow over the legislative process, they remain exceedingly rare.

In contrast to public perception, re-offense rates for individuals previously convicted of a sexually-related offense remain quite low. Published rates of recidivism across all categories of sexual offenders vary from 5.3 percent in a report by the US Department of Justice to 14 percent in a longer follow-up. The overall sex offender re-offense rate is actually lower than that of the general criminal population.

Fear of stranger sexual assaults also remains high among the public despite research demonstrating that sexual offenses are overwhelmingly committed by someone the victim knows. The National Crime Victimization Survey in 2009 showed that nearly 80 percent of sexual assault victims knew their perpetrator, and 93 percent of minor victims of sex crimes knew the offender, according to the Bureau of Justice Statistics. According to a 2008 report prepared by the Massachusetts Executive Office of Public Safety and Security (EOPSS), 71 percent of sexual assault victims reported knowing their assailants. The report concluded that “[t]he image of the rapist as a masked stranger prevails. Unfortunately, the reality is far more concerning.”

The reality, according to the report and other similar efforts, is that whether the offender is a spouse, friend, or relative—or a babysitter or other person of authority in the case of a child—the public’s risk from unknown predators is nothing compared with that from individuals they already know.

Whether fueled by intense media coverage of isolated cases or political grandstanding, public concern over a perceived increase in the rate of sexual assaults is also unfounded. According to US Department of Justice statistics, reported rapes in the country have dropped from a high of 2.8 per 1,000 people in 1979 to .3 per 1,000 in 2009. From 1998 to 2008, the rate of reported rapes in Massachusetts decreased 6 percent, according to an EOPSS report.

The view of the monolithic sex offender, with each individual posing the same level and type of risk to the public, also remains an enduring myth. The public policy response to date largely mimics this misconception. Offenders are grouped into a single, restrictive, and unbending cluster, which ignores a crucial, identifiable verity: sex offenders are not all the same.

In crafting a new registration law, the highest classification level should be reserved for individuals who actually pose the greatest risk of reoffending so that scarce resources can be directed most effectively. Individuals who commit offenses against their own children, for example, pose different and substantially lower risks to the general public than do child molesters whose offenses target extra-familial victims. Yet such offenders routinely receive Level 3 classifications due to the particularly disturbing nature of intra-familial offenses.

Researchers and practitioners working with offender communities also agree that much remains to be learned about how to identify and manage potential recidivists. Despite significant recent advances in our understanding of sexual offenses, the Massachusetts Sex Offender Registry Board has not meaningfully updated the regulations it uses to classify offenders since their promulgation in 2002. In fact, many of the studies the board relied upon to craft its original regulations date back to the 1980s and early 1990s.

The legal community has for several years urged the Massachusetts Sex Offender Registry Board to update these regulations, with no success. The board’s assessment factors fail to address, for example, the widely accepted and crucial risk assessment factor of age, which across all offense categories is highly correlated with an offender’s recidivism risk. As offenders grow older, even beginning at age 40, their re-offense rates start to decline, with substantial decreases by age 50. After years of inaction by the board, a Supreme Judicial Court decision last year finally required the consideration of this factor, which nearly all researchers agree is key to accurately classifying sex offenders and protecting the public.

It remains vital, both for the benefit of the public safety and for the former offender in his or her reintegration into society, that the Massachusetts Sex Offender Registry Board regularly update its regulations to reflect advances in risk assessment research.

The Legislature should focus on improving the registration and classification system to target the highest risk offenders and direct resources towards them in order to decrease the risk to the public. While it is certain that no politician ever lost a vote while decrying sex offenders, some recent legislative enactments and proposed laws call into question the focus of the present approach to managing sexually related offenders. Banning all former offenders from public libraries, as the city of Boston did in 2005, or passing laws preventing them from working on ice cream trucks, as the Legislature recently did, suggests politically popular measures that have little basis in actually protecting the public.

Moreover, efforts to ban former offenders from living within a certain distance of schools and licensed day care facilities remain more troublesome, both in their demonstrated inefficacy and their result in destabilizing individuals who are attempting to reintegrate back into society. These laws frequently require offenders to move further away from supportive family members, necessary social services, and treatment. The restrictions often cause them to lose jobs due to transportation issues. In many jurisdictions with such laws, one unintended consequence has been to drive offenders further underground, with many failing to maintain their registration. As one Iowa sheriff characterized his state’s sex offender residency restrictions to the Associated Press in 2006, “It’s just absolutely absurd what these laws have done, and the communities are at greater risk because of it.”

Such proposals fundamentally misconstrue the risks posed by different offender communities by treating all offenders, including those whose prior offenses involved adults, as posing a viable and legitimate threat to children, when the research clearly contradicts such a position.

While legislators cannot be immune from public concern over sensationalized accounts of individual crimes, governing from an emotional response rather than one based in research and scientific reality does not protect the public. Having a system that focuses resources on the individuals most likely to re-offend rather than cultivating a false sense of security is the only way to effectively protect the public from the true risks posed by sex offenders.

Andrew Crouch is a Cambridge attorney practicing in the areas of criminal defense and Massachusetts sex offender registration. This article first appeared in the Winter 2011 issue of CommonWealth Magazine