Sex Offender Laws of the United Kingdom and the United States: Flawed Systems and Needed Reforms

Author:Autumn Long
Position:J.D. Candidate, The University of Iowa College of Law, May 2009.

Page 145

I Introduction

In today's world, society loathes sex offenders more than almost all other criminals: people fear personal crimes such as rape, assault, and robbery more than other crimes;1 parents indoctrinate their children with stranger danger rhetoric;2 the public demonizes pedophiles;3 and fellow prison inmates view sex offenders as the personification of evil.4 Page 146

Laws regulating sex offenders evidence this public enmity. The United States and eight other nations have implemented sex offender registries in order to track and deter these criminals.5 Singapore hopes to join these nations by implementing registration and notification statutes modeled after the U.S. system.6

Currently, the United States and South Korea are the only nations in the world that allow public access to sex offenders' personal information via public notification laws, and the United States is alone in its implementation of sex offender residency restrictions.7 Six nations-the United Kingdom, Australia, Canada, France, Ireland, and Japan-prohibit the public from accessing sex offender registries and only allow law enforcement access to registry information.8 However, victim's advocacy groups in Australia and Japan are seeking to pass public notification provisions similar to those in the United States that would expand registry access to the public.9

As more and more nations pass laws designed to protect the public from sexual violence, it is important to examine these different measures and evaluate their efficacy. In doing so, this Note will compare and analyze sex offender laws in the United States and the United Kingdom. Section II and Section III of this Note will discuss the evolution and effectiveness of sex offender legislation in both countries. Section IV will evaluate the effectiveness of sex offender laws in general, particularly registration requirements, public notification requirements, and residency restrictions. Finally, Section V advocates integration of voluntary castration into the treatment of sex offenders for those deemed a significant danger to society. Section VI provides concluding remarks. Page 147

II U.S. Sex Offender Laws
A Sex Offender Registration And Public Notification Laws

Both the United States and the United Kingdom have implemented national laws requiring sex offenders to register personal information with law enforcement officials.10 While the United States provides public access to offenders' information, the United Kingdom chose instead to restrict access to sex offender information.11 The results of these differing approaches are stark. 12 Despite the lack of evidence supporting the efficacy of many sex offender laws, fervent public support and a lack of political will suggest that the United States will be unable to implement needed reforms.

"The reality is that sex offenders are a great political target, but that doesn't mean any law under the sun is appropriate," states Illinois State Representative John Fritchey.13

According to one study, most sexual predators know their victims personally or are a member of the victim's family, regardless of whether the victim is a child or an adult. 14 Ninety percent of sex offenders imprisoned today will be released at some time in the future.15 In 1994, the Bureau of Justice estimated that 4300 child molesters were released from prison in fifteen states.16 Of those released, approximately 3.3 percent were arrested for another sex crime within three years of their release.17 Thus, understanding how society can protect potential victims-and how the law currently attempts such protection-becomes important.

Today, both federal law18 and laws of every state require persons convicted of sexual crimes to register with local authorities,19 allowing law Page 148 enforcement officials to keep close tabs on offenders "because the legislature has deemed them likely to commit similar offenses in the future."20 States modeled these laws after a New Jersey statute referred to as Megan's Law.21Megan's Law, enacted in 1996, created a statewide registration and notification program and urged all states to implement similar statutes.22 All states quickly followed with both registration and notification laws.23 State governments enthusiastically supported Megan's Law and often enacted similar legislation with little to no opposition and very little or no debate.24Legislators stated that such laws would help protect the public while discouraging recidivism among released offenders.25

Regarding public notification, state laws provide for either direct community notification or notification via online registries. Through one of these options, law enforcement generally provides communities with access to detailed descriptions of offenders, including photographs, addresses, and employment information.26 Although states prefer different approaches, most state laws give no guidance as to who should be informed and how officials should use the information.27

The problem with this lack of guidance is that sex offenders are at the mercy of the officials and their notification decisions. For example, if law enforcement officials choose to place fliers around the community, officials run the risk that locals will take the law into their own hands by copying and distributing the fliers where they see fit.28 In other instances, officials provide the fliers directly to the public for downloading; 29 this opens the door for the public to distribute the fliers in any way it personally sees fit. In those cases, notification might go beyond what is necessary for public safety and instead Page 149 potentially crosses the line into harassment or results in a violation of privacy.

This problem comes into focus when law enforcement officials release information about the crime for which the offender was convicted without providing critical information as to the actual threat that the offender poses. For instance, when a twenty-year-old engages in consensual sex with a sixteen-year-old and the law labels him a sex offender, law enforcement officials might notify only the community that he is a rapist.30 This lack of specificity does little to alert the community to the level of danger this particular offender poses. Such poor notification can lead to vigilantism and unfounded public unrest because, in some cases, a statutory rapist might pose a significantly lower threat than a predatory rapist. 31 The same holds true when the "sex offender" is a child charged with imitating television and slapping girls' backsides32 or a student charged with streaking as a prank33- communities are warned only that a sex offender is in the area and are not informed about the nature of the act.

Despite these glaring problems, ten years after New Jersey passed the original Megan's Law, the U.S. federal government enacted the Adam Walsh Act.34 This law mandates that all states enact sex offender registries and calls for the development of a national sex offender registry incorporating the registry information from every state.35 The federal database, 36 accessible to the public,37 requires offenders to provide the following information for the registry: name, social security number, address(es), employer, any school they attend, license plate number, and vehicle description, as well as any other information the Attorney General may require.38 The act sets up three tiers based on the offense convicted; the tier determines the length of time the offender must appear on the register, ranging from fifteen years for Tier I to lifetime registration for Tier III39 offenders.40 The Adam Walsh Act Page 150 requires each state to develop criminal penalties and fines for failure to register in addition to a federal penalty of imprisonment for ten years.41 All states must comply (i.e., set up their own registries and upload their data to the national database) by 2009 or face losing significant federal funding.42

As a result of the Adam Walsh Act, U.S. marshals are now responsible for tracking down sex offenders who are in violation of registration laws.43 In the United States, 603,000 sex offenders are registered, but of those, 100,000 are missing. 44 Though the act requires states to bring their registration laws into compliance with its requirements by 2009, the marshals have already captured 1300 fugitive offenders.45

B Criticism Of Registration And Notification Laws

Public notification and registration laws lack efficacy and cause various negative results. The impact registration and notification laws have on sex offenders will be discussed in depth in section IV. But it is worth noting here that a 2000 study found that re-offense rates for sex offenders subject to these laws did not differ significantly from re-offense rates for unregistered offenders.46 Statistics suggest that public notification actually negatively impacts registration itself; now, faced with public shaming, only 85 percent of offenders register at all, compared with 97 percent before public notification became mandatory. 47 Page 151

Many law enforcement officials state that, generally, registries provide little to no help for law enforcement.48 In fact, most of the sex offenders caught by officials are not listed on registries. 49 Furthermore, as a result of the Adam Walsh Act, the increase in volume of offenders listed on the registry is making it more difficult for...

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