Low Recidivism Rates Point To Problems With Sex Offender Registry

WASHINGTON, D.C.—Quick show of hands: Who here is a fan of sex offenders? Anyone? Anyone?

From our vantage point in the AVN offices, we couldn't see any hands going up, and frankly, that's to be expected. This is the adult entertainment business, and if there's one thing people in this business should understand, it's that women (and men) have the right to say "no" to any sexual act they're asked to engage in, and that no one should have the power to force anyone to engage in a sex act against her/his will. We might even say that that is the most correct, moral position one can maintain regarding sex.

Yet people still commit sex crimes. According to the U.S. Department of Justice, in 2012, the most recent year for which statistics are available, there were 346,830 reported rapes or sexual assaults of persons 12 years or older, and 62,939 cases of child sexual abuse—and while it's unclear how many of those perpetrators were convicted or pled guilty to their crimes, one thing's for sure: All the ones who were convicted or pled are now among the roughly 800,000 listed on the National Sex Offender Registry—and that's a problem, because the overwhelming majority of those who served prison time for their offenses, and even those who got off on probation, will not commit a sex crime again!

Don't take our word for it—but how about the word of the Center for Sex Offender Management?

"About 12 to 24% of sex offenders will reoffend," the CSOM.org website states, adding, "When sex offenders do commit another crime, it is more often not sexual or violent."

In fact, it's difficult to track which former sex offenders are getting busted for what, but there have actually been several studies looking at offenders' criminal records in several states, and one study of 4,109 people who had been serving time for a sex offense found that just 32 (0.8 percent) returned to prison for a new sex offense. Moreover, the website Women Against Registry reports surveys done in several states, with most reporting a re-arrest rate of less than 5 percent and none reporting a re-conviction rate greater than 5 percent. That means, in most states, roughly 95 percent of those imprisoned for a "sex crime" (see below for definitions) never had another criminal contact with law enforcement again, but nevertheless spent 10 or more years on the Sex Offender Registry—and some are on it for life!

And being on the Registry can cause a few problems. Take, for example, Lester Gerard Packingham Jr.

"In 2002, then–21-year-old Lester Gerard Packingham Jr. was indicted for having consensual sex with an underage girl he was dating," wrote David Feige on Slate.com last March. "After serving a sentence of two years probation, he was required to register as a sex offender. Nearly a decade later, Packingham was arrested again, after he posted on Facebook that a traffic ticket he had received had been dismissed. That simple act ran afoul of a North Carolina law that makes it a felony for anyone on the sex-offender registry to use any 'commercial social networking website' that the person 'knows' does not restrict usage to legal adults. Thus Packingham was indicted and convicted of violating the state’s social media ban for sex offenders. There have been more than a thousand such convictions in North Carolina alone."

Packingham's case was argued before the U.S. Supreme Court on February 27, and on June 19, the high court struck down North Carolina's law.

"A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more," Justice Anthony Kennedy stated in the opinion he authored, which was joined by all of the court's liberal justices, and concurred with by the others. "While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the 'vast democratic forums of the Internet' in general, and social media in particular. ... This background informs the analysis of the North Carolina statute at issue. Even making the assumption that the statute is content neutral and thus subject to intermediate scrutiny, the provision cannot stand. In order to survive intermediate scrutiny, a law must be 'narrowly tailored to serve a significant governmental interest.'... [T]he statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens."

So Packingham won his case—but one very troubling aspect to that win was Justice Samuel Alito's statement in his concurrence: "Repeat sex offenders pose an especially grave risk to children. 'When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.'"

As noted before, that statement is simply not true—but how Justice Alito (and many, many others) came to believe that has been the subject of several recent articles, most notably by David Feige, who investigated where that notion first arose, and he found that the most commonly quoted figure on sex offender recidivism is 80 percent!

"A few years ago, Ira Ellman, a professor of law at the University of California, Berkeley, and Tara Ellman set out to find the source of that 80 percent figure, and what he found shocked him," Feige reported. "As it turns out, the court found that number in a brief signed by Solicitor General Ted Olson. The brief cited a Department of Justice manual, which in turn offered only one source for the 80 percent assertion: a Psychology Today article published in 1986."

That article was written by Robert Longo, whom Ellman described as "a treatment provider who claimed to be able to essentially cure sex offenders though innovative 'aversive therapies' including electric shocks and pumping ammonia into offenders' noses via nasal cannulas," adding, "The article offered no backup data, no scientific control group and no real way to fact-check any of the assertions made to promote the author's program."

In a video created by Feige and posted on The New York Times website, Longo admitted that the 80 percent figure is "absolutely incorrect; it's wrong; it's not true. If you're going to base laws at a federal level, you don't cite a popular psychology magazine, no matter who the author is, me or anybody else. It's not a scientific journal."

But that one bogus citation has become deeply embedded in federal law since, as Feige points out, "that 80 percent figure suited the government lawyers’ aim of cracking down on sex offenders, Solicitor General Olson cited it, and Justice Anthony Kennedy, seemingly without fact-checking it, adopted the figure in a 2002 opinion that Justices William Rehnquist, Antonin Scalia and Clarence Thomas joined. ... Their decision blew open the doors to the glut of sex offender restrictions that followed."

So thanks to the Packingham decision, now those on the Sex Offender Registry in North Carolina (and, one assumes, everywhere else in the U.S.) can now go on the internet, search for stuff, post commentary and do pretty much all the things the rest of us can do. Victory!

Except ... check out this list (.pdf) of all the "infractions" that can require a person to register as a sex offender. In Alabama, for instance, one "registerable offense" is "Public display of obscene bumper sticker, sign or writing." Wonder how officials down there would deal with this author's Sanders for President bumper sticker which reads, "Fuck it—I guess I am a Democratic Socialist"? Or the "Truck Nutz" that many like to attach to their back bumpers?

Other crimes that require registering include "Producing, directing or promoting sexual performance" (AR) (Good luck trying to shoot porn in this state!); "Engaging in sexual conduct in a penal institution" (CO) (What? Prisoners can't masturbate?); "Violation of privacy" (DE) (includes trespassing to eavesdrop, installing a hidden recording device, disclosing what's been recorded even though it has nothing to do with anything remotely sexual, and installing a GPS tracker); "Obscenity" (FL); the ever-popular "Crime against nature" (ID, LA, OK, VA); "Abusing an individual through forced labor," "Public display of explicit sexual material," and "Promoting obscenity in the first degree" (MO); "Operation of unlawful clandestine laboratory" (MT); "Employing or permitting minor to assist in offenses against public morality and decency" (NC); and "Unlawful abortion (when the child involved is under the age of 18)" (OH).

Now, to be clear, no one is suggesting that anyone should commit any of the infractions listed above. The point is, none of them necessarily have anything to do with sexual assault, which was the prime criterion for creating the Sex Offender Registry in the first place, yet people can spend a decade or more on the list even though they've never committed an actual sex crime.

"So they're on a list; so what?" one might ask.

Well, aside from the problems detailed in AVN's previous article, being on the Sex Offender Registry creates sometimes insurmountable problems for the listee. For example, here is the information that a listee in Utah must provide to the state, and must update within at least a couple of weeks if something changes: "(a) all names and aliases by which the offender is or has been known; (b) the addresses of the offender's primary and secondary residences; (c) a physical description, including the offender's date of birth, height, weight, eye and hair color; (d) the make, model, color, year, plate number, and vehicle identification number of any vehicle or vehicles the offender owns or regularly drives; (e) a current photograph of the offender; (f) a set of fingerprints, if one has not already been provided; (g) a DNA specimen, taken in accordance with Section 53-10-404, if one has not already been provided; (h) telephone numbers and any other designations used by the offender for routing or self-identification in telephonic communications from fixed locations or cellular telephones; (i) Internet identifiers and the addresses the offender uses for routing or self-identification in Internet communications or postings; (j) the name and Internet address of all websites on which the sex offender is registered using an online identifier, including all online identifiers and passwords used to access those websites; (k) a copy of the offender's passport, if a passport has been issued to the offender; (l) if the offender is an alien, all documents establishing the offender's immigration status; (m) all professional licenses that authorize the offender to engage in an occupation or carry out a trade or business, including any identifiers, such as numbers; (n) each educational institution in Utah at which the offender is employed, carries on a vocation, or is a student, and any change of enrollment or employment status of the offender at any educational institution; (o) the name and the address of any place where the offender is employed or will be employed; (p) the name and the address of any place where the offender works as a volunteer or will work as a volunteer; and (q) the offender's Social Security number."

Also, the state helpfully notes, "Information collected and released under this section is public information," and "The department shall post registry information on the Internet." What that means, of course, is that everyone the person on the Registry deals with or may have contact with—neighbors, employers, law enforcement, community watch groups, teachers, etc.—will know the person's status—and not everyone reacts well to that knowledge. It's not uncommon, for instance, for neighbors to mount campaigns to drive a registered "offender" out of the neighborhood, and many communities have laws prohibiting the listee from living within 500 to 2,000 feet of places where children are known to hang out: Schools, daycare centers, parks, playgrounds, churches, other public buildings—the list is long, and it's caused many listees to become homeless in their own communities, possibly without the means to move somewhere else... where they might very well be subjected to the same restrictions.

And don't even ask how some employers react to the news that one of their employees is on the Sex Offender Registry!

But now that the recidivism figures have begun to be called into question, the possibility exists that the whole registration regimen will be reassessed—but frankly, we're not holding our collective breaths. There are plenty of people making hay (and money) off of the idea that communities need to be protected from people who jacked off in prison, installed a GPS device ... or showed someone else a photo of people fucking. And plenty of them have the ears of Congress and the President.

(H/t to Bill Dobbs)