By Sandy . . . The attorneys general of 35 of the United States and two territories have signed a letter condemning recent revisions to the American Law Institute’s (ALI) Model Penal Code on sexual crimes. This is contrary to what evidence shows would improve public safety.
Early in 2021 ALI, an influential body comprised of attorneys, judges, and scholars in various fields of research (currently including seven members of the United States Courts of Appeal and Justices on the highest courts of several states), published its recommendations for revising laws dealing with sexual offenses. Being the first update to this section in fifty years, this is long overdue as the body of evidence and documented research around this topic has exploded in the past several decades.
At the heart of any change to the implementation of sexual crime legislation is the desire within us all to keep our children safe from sexual harm. This desire is reflected in the goals of the National Assc. for Rational Sexual Offense Laws (NARSOL) as well as in the ALI updates, all of which are evidence based and reflect several decades of research showing the most effective strategies and best practices in this arena.
Unfortunately, criticism also followed on the heels of ALI’s new recommendations. It came from the National Center for Missing and Exploited Children, from some law enforcement agencies, and now from the attorneys general in two-thirds of our states. It is worth noting that, in addition to wishing to keep children safe, all of these entities benefit, either financially, politically, or both, from maintaining the status quo. Also worth mentioning is that not once in its five and a half pages does the letter signed by the attorneys general cite any source or even make reference to any evidence that the current laws have proved to be effective in their desired outcomes. Sweeping statements such as, “The proposed changes to the [ALI] model penal code relaxing the sex offender registry would pose a significant risk to the public – especially children,” are made with no evidence whatsoever supporting them.
The changes recommended by ALI revolve around four areas: limiting registerable offenses to the more dangerous ones, providing registry access to law enforcement only, modifying registration terms and abolishing lifetime registration, and abolishing blanket restrictions that curtail all registrants’ rights and freedoms.
The registry as we know it today was designed in the wake of a few, horrific situations where children were abducted and murdered, and it is for such as these that the registry was intended. The similarity between the perpetrators of those crimes and the nearly million people who are listed on sexual offense registries today is non-existent, with children themselves being registered as young as nine for childish, inappropriate behavior. In many states, consensual teenage sexual activity, even teenage “sexting,” are registerable offenses. Law enforcement cannot focus on the few who warrant closer monitoring when the registry is so diluted.
The original registries also were accessible only to law enforcement. This position is in keeping with what research, experts in the field, and clinicians support as best practice in the treatment, management, and prevention of sexual offending. Cases of vigilante action targeting those on the registry, including murder for no reason other than that the individual was a registrant, are directly traceable to the online availability of sexual offense registries. The negative collateral consequences to children of registered parents are many and serious.
Every state has a lifetime registration requirement for some offenses, and for a few states, lifetime is the only option. Sixteen states have no path by which registrants may petition for or be granted early release from registration duty. The policies of the remaining states vary widely from clear and doable to there might as well be none. With a significant number on the registry for life with no path to exit, a considerable number of whom have not reoffended since the initial offense twenty, thirty, or – with retroactive registration applicable – fifty years ago, ALI’s recommendations to remedy this situation are crucial.
Depending on the state or the jurisdiction, those on sexual offense registries are subject to a variety of restrictions. Some of the most common are where they can live, work, and be; the exclusions are generally within so many feet, as high as 3,000, of places such as schools, daycare facilities, and parks. Some statutes include the phrase, “Any place frequented by a minor.” Restriction from any activity connected with Halloween is fairly recent, and it is based on a totally fabricated construct linking sexual harm to children with Halloween. Where they are law, these mandates are enforced as blanket restrictions against all on the registry, even when they are not under community supervision, even when their offense of conviction was not related to a child or minor, and even when there has been no reoffense. This is an incredible waste of resources.
Dr. Gene Katz is Doctor of Management in Criminal Justice, an ABS board-certified sex therapist, and an Associate Professor, College of Security Studies, Colorado Technical University. He has extensive experience working with and treating individuals who have committed sexual crimes. Concerning physical restrictions for registrants, Dr. Katz says, “Quite often, residency restrictions banish registrants from populated areas, forcing them to live far from their homes and families and limiting potential work sites willing to employ them, thereby defeating the goals of probation and parole and other desired rehabilitative outcomes. In addition, proponents of these stark measures cannot provide any credible evidence of public safety benefits; in other words, there are no scientific findings that support these draconian approaches imposed upon those who have been convicted of sexually-based offenses.”
“The American Law Institute,” according to Prof. Ira Ellman, Distinguished Affiliated Scholar,
Center for the Study of Law and Society, University of California, Berkeley, “is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law.”
These recommendations made by them are evidence-based and will improve the law in regard to crimes of a sexual nature and those who commit them. They should be supported by the attorneys general in our states and territories. It is especially ill-fitting that the chief officers in legal matters in their respective states should set themselves against recommendations to laws designed to enhance public safety for all.
Sandy, a NARSOL board member, is communications director for NARSOL, editor-in-chief of the Digest, and a writer for the Digest and the NARSOL website. Additionally, she participates in updating and managing the website and assisting with a variety of organizational tasks.