Why do we treat the most predatory and dangerous criminals the same as those who are not?
by Charlotte Silver
The collection of laws and restrictions that regulate people categorized as "sex offenders" has been punctuated by names such as Megan, Jessica and Adam. These are the names of children, all victims of heinous crimes that sparked high-profile campaigns aimed at creating "get tough on crime" legislation. Today you can go online to your state's Megan's Law website, where all convicted sex offenders are required to register, and probably find clusters of red dots on the map of your neighborhood, each dot representing an individual convicted of a sex crime. In California, approximately one of every 375 adults is a registered sex offender.
While some states have considered adopting public registries for other crimes – domestic violence, drug dealing, murder – so far sex offenders comprise the only class of criminals who are deemed to warrant this spe-cial treatment, despite scant evidence that it is effective at reducing sexual assault. [Ed. note: There are in fact some registries for other types of offenders, including people convicted of certain violent and drug-related crimes. See: PLN, April 2012, p.30; Oct. 2008, p.32; May 2007, p.30]. Registries are designed to protect chil-dren from "stranger danger," a largely mythical threat belied by the fact that only three percent of sexual abuse and six percent of child murders are committed by strangers.
Far below the public's radar is a constant stream of new legislation affecting sex offenders. In 2013 alone, at least nine new laws were proposed in the California legislature to tighten or expand sex offender laws; if passed, these new laws would be applied indiscriminately to the entire registry, a list which includes persons convicted of public urination and teens having consensual sex, as well as serial rapists and violent pedophiles.
In California, registration is for life – a defining feature that is both revealing and confounding. Why do we treat those criminals considered the most predatory and dangerous the same as those who are not? Why do we view all as unworthy of redemption? And, can advocates working to redress a criminal justice system that has failed so many – people of color, women, poor people – find a place in their movement for those working for the rights of sex offenders?
Emily, 46 slips into a chair in the cafeteria on the top floor of the State Capitol building in Sacramento, Califor-nia. Her hair, light and bright as a streak of lightning, is collected into a small ponytail and her right hand holds a plastic cup of red soda. She speaks in a muted voice: "I am on the 290 registry, I have been for 14 years. Be-fore that, I had never been in trouble, not even a traffic ticket."
Emily tells her story rapidly and repentantly: one night when she was 32 years old, she was drinking heav-ily and blacked out. She woke up to a chaotic and confusing scene: her 12-year-old neighbor straddling and fondling her body, as his father stood there shouting before he grabbed the phone to call the cops.
But the day I meet Emily that once-enraged father, Wayne, has accompanied her on her first trip to the leg-islative halls of Sacramento. "I didn't know what to do at the time; I just called the authorities," Wayne says. "I had no idea what would happen to her," Wayne says regretfully, sitting next to Emily.
What did happen to Emily? A lawyer who charged her $25,000 to represent her told her to accept a plea bargain. Thinking she was avoiding prison time, she accepted a deal that would place her on the California Sex Offender Registry. So Emily became another red dot on the map along with approximately 90,000 others in the state and 750,000 around the country. Her crime is described as "lewd and lascivious acts with a child under 14."
"At the time, I had no idea how being on the Registry would change my life and my children's lives," Emily says.
In 2003 the Supreme Court determined that sex offender registration is not a punitive measure but one in-tended to provide protection for potential victims and "regulate" released offenders. Therefore, constant changes in requirements for registrants are permitted without being seen as violating the constitutional prohibition against ex post facto. Thus, as new restrictions governing registrants are continuously adapted into the penal code they are applied retroactively to the entirety of the registry. Current prohibitions against registrants in Cali-fornia vary slightly from city to city, but include not being permitted to live within 2,000 feet of a school, park, nursery or church; obtain a contractor's license; practice medicine or law; foster a child. Sex offenders are ineli-gible for some federal and state grants and cannot live in federal public housing.
Jeff Stein has served as a defense attorney for sex offenders since the 1970s. He likens the Supreme Court ruling to the fig leaf donned by Michelangelo's David, "making the nude statue appropriate to the small town in Italy."
"The government – the legislature and the judiciary – wanted to be able to make retroactive changes so as to create registration impacts that hadn't existed previously. So, they came up with a rationale: registration is not a penalty or punishment."
When California voters enacted Proposition 83 (known as Jessica's Law in other states) in 2006, they tough-ened existing penalties on registrants and bestowed the right to municipalities to adopt their own additional rules for sex offenders – thus accelerating the rate at which the vise tightens around the lives of registrants.
"The cute little trick that localities are doing now is they will put a bench and watering hole on a corner and call it a 'pocket park,' forcing registrants to move," Stein says.
J.J. Prescott, law professor at the University of Michigan, has written extensively about the social and be-havioral impacts of sex offender laws. Prescott's research indicates that current notification and registration laws may actually increase the likelihood of reoffense by imposing financial, social and psychological barriers on released sex offenders. Prescott explained why he was initially attracted to researching this area of law:
"For the most part, criminal law has been stable for a long time. There are only a few areas where criminal law is changing rapidly and as a result affecting hundreds of thousands of lives.
"Sex offender law is one of those areas of incredible change. Every year legislators are changing and add-ing laws; it's dynamic."
And for the last 14 years Emily has lived through these changing laws. "Every couple of years there would be a new law affecting me.
"Before, with my sons – who are now 16 and 13 – I went to back-to-school night, soccer games, baseball games, everything. But as the laws progressed, now I can't go to Little League games anymore, I can't go to parks, and I can't go to school events without obtaining special permission."
Perhaps the single most potent torment for registrants is being made a public, humiliating spectacle.
Prescott says, "Notification and registration privatizes punishment: we won't put you in jail but we will make it so no one will hire you, date you, and your family will become very uncomfortable."
Emily says, "I tried to commit suicide twice, just the shame of the label itself. Right now everyone is thrown into one category. It doesn't matter what you did. There's a lot of ignorance about it. I would keep my blinds shut, I didn't answer my door. Anytime somebody drove really slow on my street my heart would freeze."
Emily has worked hard to find sources of support in her community. "For a good 10 years, I didn't have a life," she says.
While the laws continued to batter Emily into further seclusion, an advocacy group approached her. Janice Bellucci, the president of California Reform Sex Offender Laws (CARSOL), contacted Emily after ordinances prohibiting registrants from being present in arcades, movie theaters, beaches, museums, libraries and a host of other public places swept through Orange County and other cities in the southern part of the state.
California RSOL is a small group that was largely dormant until Bellucci took the reins in September 2011. Once in charge, Bellucci, a lawyer, established the group as a 501(c)(4) and set about to use targeted litigation in order to fend off the avalanche of legislation aimed at piling on restrictions to registrants.
Now, the group resembles a genuine civil rights organization. In the fall of 2012, Bellucci and California RSOL successfully fought off pending ordinances that would have imposed excessive restrictions on registrants, including one that would have prohibited registrants from decorating their houses for Halloween and required them to place a sign in their front yards that stated: "No candy or treats at this residence."
In a precious instance of coalition building, California RSOL teamed up with the Electronic Frontier Foun-dation and the ACLU of Northern California to file a suit against a provision within last November's California State Proposition 35 that required registrants to submit all of their Internet identities (email addresses, handles, usernames for accounts on Amazon, Yelp, political and personal forums, and so on) to the public registry and to continue to register any new online identity with the local police within 24 hours. As a result of their suit, a fed-eral court issued an injunction against the provision.
Last winter, Bellucci reached out to Emily because she wanted to sue the cities that had adopted the draco-nian "presence restrictions" and thought Emily might want to be a plaintiff in the case. After years spent trying to hide her shameful label, Emily was at first reluctant to participate in something that would highlight it.
"But it came to the point that if I didn't do anything, nothing would change," she says. "It took me a couple of weeks but I eventually got back to Janice."
Having experienced a few, but significant, successes at the local level, California RSOL convened in the State's Capitol this May with the intention of lending support to the fight against lifetime registration for all. San Francisco Assemblyman Tom Ammiano had made his second attempt to introduce legislation that would im-plement a tiered registry. Under his proposal, a convicted sex offender would be required to register for periods of 10 or 20 years, or for some a lifetime, depending on the severity of the offense.
The bill, AB 702, was conservative by any measure: it would have brought California in line with 46 other states, by CARSOL's calculations saved the state around $15 million annually by paring down the bulky direc-tory, and still placed even mild 290 offenders like Emily in the second tier.
Emily travelled from the central valley of California to join Bellucci and other advocates, as well as a hand-ful of other registrants and their families, to encourage legislators and their staffers to support Ammiano's bill.
In the cramped rooms of legislators' staffers, each person provided a different perspective on why a tiered registry is sensible law.
Janice, an experienced lobbyist, presented an unsentimental assessment and maintained focus on the practi-cality of the proposed legislation.
Emily told her story to each staffer just as she had to me. The other registrants who came to Sacramento to tell their stories appeared less shamed than Emily, who is relatively new to advocating for herself. One young man, "Mitch," was placed on the registry at the age of 20, seven years after he and his cousin touched each other's developing bodies in a moment of curious and consensual exploration. All those years after the incident, his aunt, who had suddenly come to believe that this single past action made Mitch a current menace, turned him over to the police. The Adam Walsh Act of 2006 required states to place "offenders" as young as 14 years old on state registries.
"Frank" told his story as though he was talking about someone else. Frank was cleared of his conviction in 1984 after serving out his sentence in a county jail. In the following 12 years he started his own business and was appointed president of the local Chamber of Commerce. But in 1997 California's penal code changed and forced Frank to publicly register. Overnight, the life he had created was no longer possible: he lost his contracting license and the lease to his business, and was plunged into poverty.
Also in attendance to urge support for the bill were Charlene Steen, a retired psychologist who has treated sex offenders since the 1980s, as well as a current parole officer.
But in early June 2013, the chair of the House Appropriations Committee, Mike Gatto, did not permit the bill to go forward and so it will remain in suspense until next year.
Tom Ammiano was disappointed his bill failed to go to public session and said, "You'll find a lot of support for it behind the scenes, but not up front. People are just too timid."
Indeed, legislators had repeatedly referred to the bill as "radioactive."
Beyond the reality that legislators fear looking soft on crimes of any kind, sex crimes are shrouded in myths and lies that have generated a legal logic that supports their unique treatment – making a bill that merely at-tempts to restore some semblance of civil rights to convicted criminals like Emily to be considered "radioac-tive." Despite study after study indicating that crimes of a sexual nature have one of the lowest rates of recidi-vism, popular perception continues to be that those who commit sex crimes are stricken with a disease and are incurable and irredeemable.
Who Does the Registry Save?
Every year, on their birthdays, registrants are required to go to the police department and re-register. They must update their picture and residential information that will appear on the registry website and address any other concerns. Throughout the year, Emily keeps a folder documenting all the places she goes and the permission she obtained to go there: to her weekly Bible study group, parent-teacher meetings and so on. When she makes her birthday trip to the police department, she must take this folder with her.
Eugene Porter, a therapist who has worked with convicted sex offenders and male child victims of sexual abuse since 1984, describes this annual ritual as a "powerful shaming structure."
And what about the shamers? Criminologist and professor Chrysanthi Leon remarked that the public spec-tacle of these hyper-restrictive laws is a "crucial way of signaling that we're doing something about sexual vio-lence, when in reality we're doing very little."
Tom Tobin, a psychologist by training and currently serving as the vice-chair of the California Sex Of-fender Management Board, carefully acknowledges the unique trauma experienced by a victim of a sexual crime, but questions whether concern for this lasting emotional damage is what fuels our current handling of such crimes.
"I think there's something more primitive," he says. "There's something about human sexuality that engages some part of everyone so that if we can identify this group who can be the 'bad ones' around human sexuality, or the exercise of it, than maybe it lets the rest of us off the hook. We can be sexist, anti-woman; we can make our own behaviors acceptable because it's the sex offenders who are violating peoples' rights. I think there's some-thing deeper and more profound going on that makes it difficult for people to respond in a thoughtful way."
When Eugene Porter reflects on the experiences he has witnessed and treated over the course of his three-decade career, he conveys an authority over and insight into a subject of which he nevertheless insists we must "acknowledge the level of our own ignorance."
"Being a sex offender is the worst stigma – maybe after 9/11, being a terrorist is as bad," Porter asserts.
It is not uncommon to hear people who work in this field employ the metaphor of terrorist to describe how the criminal justice system has come to treat and portray sex offenders. Both specters have been ascribed a set of behaviors and placed on a continuum of threat to a vulnerable society. Wherever one falls on that continuum, there is an assumption that forward progression on it is inevitable.
With the logic of a continuum, on which offenders are interminably placed, a justification emerges for a permanent registry that treats all offenders of crimes involving sexual arousal or genitalia as essentially the same. Our attachment to a powerful system that confines and separates thousands of individuals, making pari-ahs of them all, reveals for whom these shaming rituals and spectacles provide a soothing salve: it's for those of us not on the list.
Charlotte Silver is an independent journalist currently based in San Francisco. She writes for Al Jazeera English, Inter Press Service, Truthout, The Electronic Intifada and other publications. This article was originally published by Alternet (www.alternet.org) on July 23, 2013, and is reprinted with permission.
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