|Online Sex Offender Registration: The Domestic and International Perspective|
|By Monica King, CCNN Staff Writer|
This month marks the anniversary that the U.S. Supreme Court agreed to hear Connecticut v Doe, the first case involving a convicted sex offender who was required to publicly register on the Internet.
Since last November, the correctional community has closely watched this landmark case, as is evidenced by the fact that the country is predominantly split over whether these Internet-based databases are constitutional. As of 2001, only 29 states and the District of Columbia had publicly accessible websites containing information on individual sex offenders in a searchable format, according to the Bureau of Justice Statistics.
"Anytime you want to make that kind of information [sex offender data] available to the general public, you are going to have people who feel passionately on both sides of the issue," said William "Bill" Sturgeon, Principal for Institute for Adult Education and Training whose institute helps correctional agencies draft new policies, implement procedures and train staff.
The issue of sex offender registration first appeared in 1994, after a convicted sex offender abducted eleven-year old Jacob Wetterling on his way home from a neighborhood convenience store. In response, Congress passed the Jacob Wetterling Crimes against Children and Sexually Violent Offender Registration Act. In the bill, sex offenders in all 50 states were required to register with local law enforcement agencies. States that were non-compliant by the Fall of 1997 were subject to a 10% penalty in state and federal grants.
The registries, as stated in the law, were designed to assist law enforcement agencies in investigations, establish ground rules for holding known offenders, deter offenders from committing new crimes, and offer information to citizens to protect children
That same year, the rape and murder of a seven-year-old Megan Kanka by a convicted sex offender prompted President Clinton to enact Megan's Law. This law permitted states to now publicly disclose their sex offender information to the community-at large.
Unable to predict the proliferation of Internet access that would put this data into every home in America, these acts were passed with minimal controversy. In fact, by 1998 the Bureau of Justice Statistics reported than nearly 277,000 sex offenders were already registered in 49 states and the District of Columbia.
Then came the Internet, the new vehicle of choice for the implementation of statutes like Megan's Law.
Suddenly victims, neighbors and other citizens could quickly and effortlessly discover the identity, release date and whereabouts of these individuals from home or work. This level of public access created a host of legal issues including the 14th Amendment right to Due Process.
"There will always be the controversy of personal privacy versus public safety," said Sturgeon, "and when it comes to these individuals [sex offenders] the citizens perceive public safety as their right to know."
In November of 2002, the US Supreme Court agreed to hear the issue.
Connecticut Department of Public Safety et v. Doe
In the case of Connecticut Department of Public Safety et v. Doe, the question posed to the Court was whether the Due Process Clause of the 14th Amendment prevented a state from listing convicted sex offenders in a publicly disseminated registry without first providing offenders with individualized hearings and assessments regarding their current level of dangerousness.
Under the Connecticut General Statutes, the persons listed in the database were individuals convicted of one of the four statutorily defined categories:
1. The criminal offense was against a victim who is a minor
Since John Doe qualified under these statutes he was required to register in the state database. Pursuant to the Connecticut Sex Offender Registration Act, the information was then made available to the public without consideration to the perpetrator's potential for future re-offending or administration of any type of assessment.
So, Doe filed a federal suit citing breach of 14th Amendment rights that, "...no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law..."
The plaintiff argued that by registering all sex offenders as equally dangerous without an individual assessment violated his right to due process. In the case, John Doe argued that due process requires an individualized hearing or assessment to determine the potential danger of each registrant listed on the sex offender registry.
The state argued that the information disclosed was truthful and did not require assessment. Furthermore, the state explained that the listing was accompanied by a disclaimer that, "any person who uses information in this registry to injure, harass or commit a criminal act against any person included in the registry or any other person is subject to criminal prosecution."
The lower courts agreed with the Plaintiff and ruled that failure to differentiate between registrants implied the message that each person listed was, more than likely, more dangerous than average individuals.
The Supreme Court weighed the public's right to know versus the offender's privacy and overturned the lower court decision this March.
Justice Ruth Bader Ginsburg questioned Connecticut's law but also observed that citizens need to know. The Justice stated, "If you make a mistake about a pickpocket, someone is out of change. Here, the consequences of a mistake are much more serious."
According to Ginsburg "due process does not require the opportunity to prove a fact," especially not one that is "not material to the State's statutory scheme." It was also noted in the case that the purpose of such Internet registries was to make information easily available and accessible, "not to warn about a specific individual."
Support for public access of sex offender information can be found in both correctional and therapeutic settings.
Bob Anderson, Director of Community Corrections for the Middle District of Tennessee stated, "Community supervision and safety is community justice. We have an obligation to our communities to ensure that proper techniques are applied by statute and not by opinion."
According to Anderson the Internet is an important tool to address the challenges associated with the supervision of an exploding offender population and frequent offender transition back into the community. "Not all agencies have access to the same communication tools," says Anderson explaining that the Internet gives nation-wide access to agencies and communities.
This is in light of the fact that the Bureau of Justice Statistics reports that approximately 97% of the U.S.'s 1.3 million inmates will be released into communities; close to 400,000 of these are registered sex offenders.
The public right to know of the whereabouts of sex offenders within their own community also stems from the controversy over the level of success of treatment for such offenders. Of concern are the statistics that indicate 67% of all victims of sexual assault are under the age of 18 with 34% of that number being under the age of 12.
Dr. Lane Lasater has been affiliated with cognitive therapy programs throughout the United States for a number of years. Cognitive therapies provide a "systemic, step-by-step rehabilitation system for treatment resistant clients."
"Sex offender supervision and rehabilitation are widely recognized in the field as lifetime enterprises," stated Dr. Lane Lasater, President of Character Development Systems.
"These behavior patterns must be monitored and sex offenders must practice offense prevention for their lifetimes in order to be offense free, explains Lasater who widely supports the use of public sex offender databases. "It's is a heavy burden for offenders, but with accountability and support we can rehabilitate and prevent the creation of future victims."
The International Perspective
The movement of posting sex offender information in other nations is gaining ground in the United Kingdom, Australia, and Canada.
United Kingdom and Australia
Joy Cocker with the Australian Institute of Criminology revealed that the focus at the present "leans toward a movement supporting publication of pedophile information" in the United Kingdom as a result of the death of eight-year-old Sarah Payne under similar circumstances that fueled Megan's Laws in the United States. Additional information provided by Ms. Crocker further describes the implementation of the National Child Sex Offender System through the Federal Agency known as CrimeTrac with the purpose of providing information throughout Australia to police but not to the general public.
Another striking difference between U.S. and Britain's laws can be found in the House of Commons Home Affairs Committee response to the Sex Offenses Bill. The bill states that no matter what the crime of the accused, "anonymity is to be protected particularly in the period between allegation and charge." The Association of Chiefs of Police was tasked with amending guidelines regarding media release and "general release of information for a given period."
The Sex Offender Registry Act of 2002 of New Zealand clearly illustrates the most typical difference between domestic and similar foreign legislation. The New Zealand act establishes "a registry of sex offenders to assist police in their investigation of sex offences, to reduce sexual offending, and thereby contribute to public safety," provided Cocker. Access to the registry is limited and similar clauses appear in parliamentary acts and proposals in Britain, Australia, and Canada.
In April of 2001, province-wide registries took effect in Ontario, Canada. Known as "Christopher's Law" in honor of an 11 year-old murdered at the hands of a pedophile, the provinces of Alberta and British Columbia soon implemented similar legislation.
Each bill appears to do little to prevent offenders from moving into other areas of the country. The purpose stated is to supply police agencies with sex offender information allowing them to track the whereabouts of perpetrators. For example, a report prepared by a team of police officers in British Columbia illustrated an attempt to track 12 high risk offenders for 20 days. Officials noted that seven of the twelve were rearrested for a number of other charges, others were volunteering at church-run day care facilities and one had used a friend to lure a child to a hotel.
"As for the future of privacy and the Internet, you can be sure this issue has not been put to rest," said Sturgeon.
At the September 2003 United Nations Telecommunication Union, the first steps towards developing a common Internet Policy took shape. Such issues discussed included protecting minors from harmful content and assuring confidentiality of personal information.
Later this year, the World Summit on the Information Society will re-convene on the same issue.
Likewise initiatives such as the National Criminal History Improvement Program and the Criminal Identification Technology Act continue to strive to assure that accessible offender information is accurate.
"For now, the Internet information is not always complete or consistent," said Anderson, noting that it is a valuable tool nonetheless.
And based on the U.S. Supreme Court decision this March, the using the Internet for sex offender registration is now a legal option in correctional and law enforcement communities.
William "Bill" Sturgeon
Dr. Lane Lasater, PhD
Bureau of Justice Statistics
Legal Information Institute
Department of Justice