In 1994, 7 year old Megan Kanka was brutally raped and murdered by her 43 year old neighbor, Jesse Timmendequas. The news sent shockwaves across their community and the nation as a whole, not just because the crime was stomach churning, but because Timmendequas was a registered sex offender. The event spawned a series of laws across the nation — often referred to as Megan’s Law — requiring law enforcement to inform the public when a sex offender relocates to their community. On the federal level, Megan’s Law was woven into legislation requiring sex offenders to register with the state and inform the state of any moves for a determined or even infinite amount of time. The whole initiative was an effort to allow the public to protect themselves from known sex offenders.
But that’s not what happened. Instead, sex offenders frequently found themselves hard up for work or even housing as people recoiled at their designation, which ironically exacerbated the likeliness of recidivism. That’s quite a feat, given that recidivism among convicted sex offenders is statistically quite low. Unsurprisingly, there are a number of groups who argue that this practice violates the eighth amendment by punishing an individual in perpetuity for one crime. Instead of public safety, there was a rise in public vigilantes. Stephen Marshall, for instance, sought out two men on the registry and murdered them in cold blood. Michael Dodele was murdered by a local father “in protection of his son” after he discovered Dodele’s conviction, though Dodele’s crime had nothing to do with children.
And there’s another problem here: what we classify as sex crimes. There are some crimes that fit neatly in this category: rape, sexual assault, molestation. But some crimes that classify might be as simple, innocuous and stupid as urinating in public or streaking at a football game. In some cases, even the labels we recognize as legitimately heinous don’t make a ton of sense in context. A 30 year old man who forces himself on a 16 year old girl in an alley, for instance, is not the same as an 18 year old senior in high school having consensual sex with his 16 year old sophomore girlfriend, but on the registry, there often won’t be a distinction.
The sex offender registry is not an inherently terrible idea. Even the Association for Treatment of Sexual Offenders concedes that sexual offenders should be carefully reintegrated into society upon release with ample legal oversight. But until laws and the registration process are reformed, the current process is doing no one any favors.
Which brings us to today, as Congress sends President Obama what is known as an “International Megan’s Law.” This law would require that the State Department conspicuously mark the passports of anyone involved in a sex crime that involved a minor to inform other nations of their risk upon entry.
There are a lot of problems with this. We’ve already talked about how the registry conflates crimes by ignoring crimes; this is worse. Teens sexting each other would end up on this list if convicted. But beyond the fact that its application could end up being unjustly applied, there’s absolutely no evidence this would thwart the human trafficking it claims to target. And if people are being discriminated against with their names listed online, imagine what happens to those who use a passport as a form of identification. To add insult to injury, their supposed purpose is redundant. As Reason explains:
[W]hen it comes to those who have committed the most heinous crimes or are the most likely to reoffend, we already have a mechanisms in place to either prevent them from getting passports or notify foreign governments when they’re traveling abroad. The Secretary of State can deny passports to people convicted of certain sex crimes, and Immigration and Customs Enforcement’s (ICE) “Operation Angel Watch” already notifies foreign officials when Americans convicted of certain sex crimes are traveling there.
And the reason ICE knows the travel habits of these sex offenders? Because all people on state sex offender registries—regardless of why they’re there or how long ago their crimes were committed—are required under federal law to “inform his or her residence jurisdiction of any intended travel outside of the United States at least 21 days prior to that travel.”
In other words, the only thing this law would do is exacerbate the harms that already exist in the flawed framework of sex offender registry related laws. Nice, right?
But as the legislation crosses President Obama’s desk, it seems unlikely that it would be vetoed, largely because of optics. How would it look for him to reject legislation that’s supposed to protect children from being raped?
That doesn’t mean we should accept its passage. Sexual violence survivors deserve our support, and if anything, the flaws in the current legal regime trivialize their experience. That a person having sex with someone they’re in high school with is put on the level with a brutal rape is unconscionable. That that same kid be treated with the same disdain reserved for violent rapists for potentially the rest of their natural lives is revolting. We can do better, and should.
Until then, let’s hope Obama’s constitutional law background triumphs over PR inclinations.