The Exceptional State of Sex Offender Registries (Part One)
Despite the force that comes with a stark warning received in the mail, the postcard itself offered very few details of the actual offence. Following the directions on the postcard to find additional information, I pulled up a web browser and visited the Texas Sex Offender Registry online. Here I learned that the victim was a twelve-year-old girl, and while I could see a photo of the offender (the same photo is also on the postcard), I couldn’t immediately tell his age—though he did look pretty young. To figure out his information, I needed to do a little math—not an unproblematic operation. I could see his date of birth (1985). So, I knew how old he was. In another location, I saw the date of the offence (2000). Obviously, he was fifteen when the offense occurred.
But what exactly did he do? As it turns out, the actual details of the offense are not readily available. Instead, I had to click on a link that took me to the specific language in the Texas Penal Code 21.11 (a)(1), Indecency with a Child, which states that “(a) a person commits an offense if, with a child younger than 17 and not the person’s spouse, whether the child is of the same or opposite sex, the person: (1) engages in sexual contact with the child or causes the child to engage in sexual contact.”
A number of questions do spring to mind in this moment. The most interesting to me deals with the issue of marriage. Would there have been an offense if they were married? More importantly, if this were indeed a serious assault, would the same level of punishment have been assigned within the institution of marriage? Such issues have been hotly debated and are a subject for another post. But they are worth acknowledging. For now, I want to consider another angle. Ignoring for a moment the very real possibility that a sexually aware twelve-year-old could certainly be the aggressor in a situation involving a slow-to-develop (or even average) fifteen-year-old, we have to raise some questions. How does the older person in this scenario wind up being punished by the same law designed to protect somebody his age? What behavior is actually being policed here? Whose behavior is being policed? And under what circumstances?
Let me be clear, I have no idea what actually happened. The individual convicted of this crime might have simply pleaded to a lower charge for any number of reasons, including not further traumatizing a victim in a courtroom setting. Let me also be clear in my belief that some children do harm to other children in ways that absolutely warrant criminal prosecution and punishments that include incarceration beyond their juvenile years. But there still seems to be something odd at work if the law can be used against those it is designed to protect. Both people in this instance fall into a class protected from predatory adults. And yet some members of that class (probably related to age or nature of offence) can be excepted out of that group and considered an adult. A minor at the time of the offense, the young man faces a stigma that follows him well into adulthood. Not only will he be subject to criminal background checks, his status as a sex offender appears in newspapers, on iPhone apps, through internet searches, not to mention postcards delivered to his neighbors. Again, the devil is in the details. But the important details are precisely those that we do not have reasonable access to. Severe punishment may well be warranted. But folks in the neighborhood only know that a severe punishment has been meted out, that he is on a list.
After reviewing some research and statistics, I was immediately startled at the divide between the perception and reality of both the criteria for being placed on Sex Offender Registries and the consequences of such an inclusion. Specifically, the expansion of the criteria for inclusion seems to be growing perpetually. Erica R. Meiners explains that media coverage of popular abductions appears to be the primary impetus for this expansion. While some of these sensationalized sex offenses have caused the passage of several well-meaning laws at all levels of government, Catherine Wagner explains that the actual consequences of these statutes confound and subvert the intent of the lawmakers. Research by Meiners, Wagner, as well as the results of a study by Alissa Ackerman, Megan Sacks, and Lindsay Osier describe the progression and expansion of Sex Offender Registry by laws named after mostly white children: The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, passed in 1994, requires offenders to be registered with police agencies for a minimum of ten years after being released from incarceration; in 1996, Megan’s Law not only made sex offender registries public, but the registries themselves were broadened to include non-violent offenders as well as perpetrators who were not children; and the Adam Walsh Child Protection and Child Safety Act of 2006 (not the first law to bear Adam Walsh’s name) required that all states establish and maintain online sex offender registries. In addition to the every-expanding selection criteria, the scope of the registries continues to expand to include younger and younger offenders. An article by Jessica Salerno (et al.) explains that children are protected from inclusion on Sex Offender Registries in only four states whereas states like North Dakota allow the inclusion of children as young as seven years old.
Some examination of the origins of these registries is warranted. The genesis of sex offender registries begins with nefarious police tactics ones used to target homosexuals. Erica Meiners explains that as homosexuality became more visible, these lists evolved into a method of tracking child predators. Apparently, policing procedures don’t just evaporate when social paradigms evolve. The registries simply claimed a new focus. Queer folks who are today celebrating the rapid expansion of marital privilege could have found their private behavior subject to both imprisonment and registry inclusion just over a decade ago. It is for this very reason that Meiners takes queer communities to task, because while the stated focus of these registries is to track sexual predators, the lists persist in reinforcing stereotypes of mustachioed, stranger-danger homosexuals lurking in the bushes. It is human nature to assume any person listed on a Sex Offender Registry has committed the worst, most horrific crime possible, especially since acquiring the details isn’t always easy.
This fact is made more problematic when the inclusion of juveniles is considered. The research conducted by Salerno explains that violent rapes committed by juveniles added up to only 15% of underage sex crimes in 2007. Other offenses included minors exposing themselves in classrooms and even juveniles of the same age engaging in consensual sex. Wagner explains that while public urination is sufficient for inclusion on Sex Offender Registries in thirteen states, eleven of those don’t require the presence of a minor. This last fact seems a little off consider how much these registries are marketed to exist for the safety of children. However, the research by Wagner presents the most troubling trend because a sexual component is not always a requirement of the assault on a minor, which means that since the age of the offender can be quite young, two junior high kids who get into a scuffle can potentially find themselves listed on a registry.
While many different kinds of behavior at just about any age can land someone on a Sex Offender Registry, the consequences are pretty consistent. The most obvious example relates to zoning ordinances, which already give deference to those of higher socio-economic statuses. More presciently, people on Sex Offender Registries may find themselves with no place to stay at all. Not only do relatives and landlords refuse to shelter or rent to people on Sex Offender Registries, these zoning ordinances in some cases prevent people from living with someone who would otherwise be willing to take them in. In some cases, according to Wagner, this includes homeless shelters—tough break for that seventh grader who flashed his private parts to his classmates. Just like the criteria for registry inclusion, the dimensions of these zones continue to change. As everyone agrees, these pressures can lead to recidivism or even the commission of new crimes. How can we claim to protect children when we are poking the supposed monsters that seek to do them harm?
Moreover, why are we ignoring so many of the real monsters that cause harm to children? According to the research conducted by Ackerman, Sacks, and Osier, “a vast majority of sexual offenses are committed by someone known to the victim.” According to Meiners, public zones like parks and schools are not as threatening as other locations like homes and residences where seventy percent of assaults against children take place. While it is true that Sex Offender Registries do include offenders who committed offences within a home, the very fact that the policing gaze is turned outward from the home limits potentially more productive efforts at prevention. What is the purpose of maintaining a 500-foot distance from a school when the child is under more threat from the place where he or she dwells? Meiners sums it up perfectly: “The perpetuation of stranger danger takes responsibility off the construct of the family or patriarchy. If violence to children is represented as the stranger, the nuclear family is preserved as a natural and safe institution.” There is, after all, a reason for the marriage caveat in the statute listed above. To be any level of sex offender—even when being a sex offender consists of neither sex nor reasonable offense—is to be all the levels of sex offender. Minor crimes are seemingly added every day. The list continues to expand along with the requirements to be classified as a sex offender.
But what does any of this have to do with Critical Theory? The impulse to protect children in our society is noble. For one thing, the whole operation and concept of nobility has been called into question or even dispatched entirely by several theorists. Overall, Critical Theory exists to give us all some impulse control. More to the point, how can Critical Theory illuminate this complicated issue? In my next blog post, I will look at work by theorists, including Giorgio Agamben, who offer significant insight into the mechanisms at work here. Even though the problems and contradictions inherent in this cursory examination of Sex Offender Registries indicate they might require abolition or redesign, some significantly more nefarious operations may well be at work.