Saturday, December 4, 2010

Sex offender registries: They’re not just for sex offenders anymore

Our nation’s preoccupation with tracking sex offenders comes at a high cost.  Between the fifty states and the federal government, we’re spending hundreds of millions of dollars on sex offender registries each year, in addition to the billions spent on incarceration and community supervision.  However, these registries aren’t all they’re cracked-up to be, in part because they’re flooded with useless information.  For each violent rapist, a registry may contain dozens of teenagers who had consensual sex with younger teens, and dozens of other teens who were convicted of “sexting,” urinating in public, or similar behavior.  But, perhaps the biggest problem with sex offender registries is that they’re not just for sex-related crimes anymore.
In addition to dramatically expanding what constitutes a “sex crime,” many states have boldly crossed the line and require registration for crimes that aren’t remotely related to sex, pornography, or even public urination.  An excellent example of this trend can be found in the Wisconsin case of State v. Smith, where Smith, a 17-year-old boy, made another 17-year-old boy go with him to collect a debt.  Smith was convicted of felony false imprisonment for this behavior and, because his “prisoner” was a minor, the state forced Smith to register as a sex offender.  (Smith, also 17-years-old, was not considered a minor.  Wisconsin considers accused 17-year-olds to be adults.) 

Everyone agreed that Smith’s behavior was completely non-sexual.  In fact, his obvious motivation in taking his fellow 17-year-old to collect the debt was purely financial.  Despite this, Wisconsin’s highest court rejected Smith’s commonsense argument that “the purpose of the sex offender registry is to protect the public from sex offenders.”  Instead, the court held, even people accused of non-sex crimes can be forced to register, because it could assist law enforcement. 

To their credit, two justices—Justice Ann Walsh Bradley and Chief Justice Shirley Abrahamson—dissented from this absurd decision.  They made what should have been obvious points:

  • First, the court’s decision harms the public interest.  Sex offender registries become useless when they are “clogged by offenders” who were never even accused, let alone convicted, of a sex crime or even a quasi-sex crime.

  • Second, there is no “rational basis” for branding this 17-year-old boy as a sex offender for his completely non-sexual behavior.  Instead, this is an “arbitrary action of government,” and violates Smith’s constitutional rights. 

  • Third, with this kind of overeager, irrational government action, no one is safe.  The dissenters warned that, under the court’s reasoning, even traffic offenders will soon be swept into the registry, because doing so would “advance the purpose of assisting law enforcement,” thus satisfying the court’s new test.

This Wisconsin case seems to be part of a larger theme.  We elect politicians to government—Wisconsin elects not only its legislators but also its high court justices—and then these politicians act in absurd ways that often go unnoticed by most of us.  In this example, the legislature drafted a ridiculously broad law, the high court rubber-stamped it, and then the legislature failed to correct the problem after the fact.

However, today’s political climate—which consists of billion dollar annual deficits and a somewhat anti-government sentiment in the air—provides the perfect opportunity for state legislators around the country to bring reason back to government.  Now is the time for them to use examples like State v. Smith to try to reform these overly inclusive, irrational sex offender laws.  We’d all be better off for their efforts.


  1. sfilippo@centurytel.netDecember 7, 2010 at 8:51 AM

    The politicization of the judiciary in Wisconsin (and Iowa among others) is nearly complete. "Tough on Crime" candidates, be they legislators or judges, get elected. Judicial canditates with superior intelligence, legal reasoning ability and intellectual/moral courage do not attract the conservative big money which goes to those who pander to fears of those too lazy to think for themselves.

  2. Possibly they could categorize sex offenders into 1. he shouldn't have been convicted but he was 2. he deserved his conviction but isn't violent 3. he was convicted and would be dead if parents had their way.

  3. you think this is bad, check out the actual statute of 1st degree sexual assualt of a minor "the meir touching of the genital area, whether outside the clothed area or no; and/or intentional or not" is a class B felony. Meaning incidental/accidental, you will be charged with 1st degree sexual assualt of a child under the age of 16.

  4. Greg - thanks for the post. However, in some states, the law requires both an "intentional" touching, and proof of "sexual gratification" before a touching constitutes a sexual assault. However, I suspect that most juries are too eager to simply assume the "sexual gratification" element. But in any case, each state's law could be slightly different.

  5. Ten Myths About Sex Offenders –

    Of all crimes, sex offenders are widely believed to have the highest level of recidivism. However, treatment professionals and criminologists have known for some time that once sex offenders are caught, only a small minority of them will commit another sex crime. Although some pedophiles, before they are caught, have many victims, most have a single victim in or about their own family.

    We all hope for the day when we can see fewer sex offenses and particularly fewer juvenile victims of such crimes. But so long as what we think we know about these types of crimes is based on myths and fear rather than facts, that day will never come. There are several myths that are widely believed that need to be debunked.

    Abolish the Public Sex Offender Registry:



  7. Could someone please tell me how "collecting a debt" is a crime in any event. Am I missing something here??

  8. Claire53:

    I think the crime was taking someone with him, against their will, to collect the debt. (False imprisonment.) Collecting the debt in and of itself wasn't the crime.