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Unjust Sexual Offense Laws: Insanity and Hope

by Ken Abraham and Brenda Jones

Unjust Laws

Over the past 25 years, the U.S. has developed a pernicious system of sexual offense laws, including increased sentences and public registries of offenders. Based largely on unfounded hysteria surrounding a tiny fraction of high-profile cases, these laws today are a tangled mess and cause considerable injustice. The problems are caused in large measure by lawmakers’ desires to seem tough on crime and their lack of knowledge about the facts.

There is a very broad brush applied to the term “sex offender.” Most, in fact, are not people who have harmed a child or even attempted to harm a child. Being caught urinating behind a bush can land you as a “sex offender,” branded for life. And a steadily increasing proportion are people caught viewing illegal pictures on the internet.

These laws are especially harsh: In Delaware, a conviction for looking at one picture carries a mandatory sentence of two years. Prosecutors charge 25 counts, whether the number of photos found was 25 or 2,500, to force “plea bargains.” Few will risk going to trial facing 50 years in prison, on charges relatively easy to prove. These people need counseling, to be sure, but they do not need to be in prison. There is virtually no evidence that looking at pictures leads to inappropriate conduct.

Of course, it is much easier to find people looking at pictures than it is to prosecute those who are harming children; Ken Abraham knows from his experience as a prosecutor that it is almost impossible to find those who take the pictures of those kids! Therein is the problem: prosecutors do what is easy to build the number of convictions, so they can say they are protecting the public, when in fact, they are not really increasing public safety.

Much of the public perception of “sex offender” is wrong. For example, the Association for the Treatment of Sexual Abusers stated on its blog:

About 95% of sexual offenses are committed by previously unknown offenders. Resources committed to known offenders could be better spent on primary prevention. 

About 97% of juveniles and nine of 10 adults do not sexually reoffend. Resources should focus on repeat offenders, while onerous civil regulations should be challenged.

A Breath of Fresh Air

Amid this insanity, though, we find an occasional breath of fresh air.

On January 2, 2018, the Illinois Sex Offenses and Sex Offender Task Force published a report detailing its recommendations to the Illinois General Assembly on implementation and impact of that state’s registration and residency restriction laws. The task force had been established in 2016 with the ambitious goals of (1) reviewing evidence-based practices and research on registration of former sexual offenders; (2) holding public hearings for testimony on the above; and (3) making recommendations to the general assembly to “more effectively classify sex offenders based on their level of risk of re-offending, better direct resources to monitor the most violent and high-risk offenders, and ensure public safety.”

Members of the National Association for Rational Sexual Offense Laws (“NARSOL”), specifically Illinois Voices, played an important role in hearings and meetings throughout 2017. Among the most interesting findings are that the most effective forms of treatment and supervision should be “tailored to address the risks and needs of individuals,” but Illinois lacks means to monitor and assess those needs, and that research does not show that registries or residency restrictions reduce sexual crimes or re-offense.

The report brought forth some quite refreshing recommendations, which will be taken up in the Illinois legislature this year. The two big contingencies for any of them were (1) funding and (2) accounting for different needs around the state. Those are very big “ifs,” which present a big challenge to implementation of the recommendations—14 of them in all covering offender management, assessments for treatment and management, use of the registry, and tailored restrictions aimed at public safety.

To summarize, the task force is asking that the Illinois Sex Offender Management Board become independent and expand its core activities to include setting standards, establishing quality assurance, and providing training. It recommends using “validated, structured” risk assessments administered by well-trained, qualified professionals during supervision, and base treatment and management on what is actually effective to reduce reoffending.

As is true in many states, Illinois currently labels a large number of people “sexual predator” based only on their registry term and not on any actual assessment of risk. The task force recommends that the registry should more effectively identify true high-risk persons, while allowing those at a lower risk to either automatically be removed after a set time, or petition for removal after meeting certain criteria.

Finally, the task force recommends that any restrictions (such as residency and proximity, currently applied to every registrant in the state and facing a number of court challenges) be tailored to apply differently to different risk tiers. Mandatory supervised release should be more carefully applied only to highest risk, and limited to three years.

These recommendations are certainly a breath of fresh air in a time when many states continue to look for ways to pile on more restrictions, add more offenses, and strip more and more rights from persons convicted of sexual offenses, even after they have completed their sentences. The task force is to be commended for looking seriously at proven research and results in crafting its report, and we are proud to know that citizen advocates came forth and spoke rationally and movingly during public comment periods and had a real impact on this outcome.

Work Not Yet Complete

Advocates have a further job ahead, as the legislature reviews task force recommendations and decides what to actually do about them. A legislator (ideally, several from both chambers and both sides of the aisle) must craft actual legislation that would put some of these ideas into action. They must consider what their voting constituents will say about “getting soft” on this much-maligned class of offender.

The average person on the street still believes that every person placed on a public registry is an extreme danger. He/she does not realize just how many are young people doing what all youngsters have done since time immemorial, or older persons who were under the influence and made the one massive mistake of their lives and become branded for life. These people are not threats to safety, and once they’ve served their sentences should be able to move on like other citizens.

The task force, to its credit, acknowledges these things and has recommended steps that could improve public safety by focusing on persons with higher risk. But it has also observed that risk assessment and its related requirements (training, infrastructure) can be costly, and the report acknowledges “Illinois lacks sufficient means to monitor and assess treatment of sex offenders at the state and local level.”

It remains to be seen just how many of the Illinois Sex Offenses and Sex Offender Registration Task Force’s recommendations will be implemented. Advocates from Illinois Voices will certainly be visiting their lawmakers over the coming months and pushing them to take action on these excellent recommendations. Let’s wish them all the best!

That breath of fresh air is in stark contrast with what many people erroneously believe about those labeled as sex offenders. We hope to see other states re-examine their sexual offense laws and consider:

Allow people to apply to get off the registry after five years of good behavior.

Eliminate costly and useless residency and proximity restrictions.

Remove public notifications and publication of offender registries, because they accomplish almost nothing but violations of civil rights.

The focus of our criminal laws should be to protect people. That is, after all, the primary purpose of government. We urge you to educate yourself on the issues and call for needed reforms; we know from our own experience that you can make a difference!  

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Brenda Jones is the executive director of National Association for Rational Sexual Offense Laws (NARSOL). Ken Abraham is a former prosecutor and the founder of Citizens for Criminal JUSTICE. Ken specializes in helping with pardons and applications for clemency/commutation—to get people out of prison—for those deserving of such measures.

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