[Home]     [Up]

Politics and Irrelevance:
Community Notification Statutes

by Eric Lotke

As appeared in the Federal Sentencing Reporter, September/October 1997 - Volume 10, No. 2

On July 29, 1994, seven year old Megan Kanka accepted the invitation of a convicted sex offender to enter his home to play with his puppy. When the man was charged with raping and strangling little Megan, members of her New Jersey neighborhood seized on a common sense solution: people should be told if a sex offender lives in the area.

In a single week, 100,000 New Jersey residents signed petitions in support of such a law. The state assembly declared a "legislative emergency" and rushed a bill through without hearings. On October 31, 1994, just three months after Megan's death, the governor made national headlines by signing the community notification act that came to be known as Megan's Law. Hardly pausing to see if such legislation reduces victimization rates, 41 additional states and the federal government have enacted community notification statutes since Megan's death.

While these statutes are clear political winners, their effect on neighborhoods is less certain. Notification efforts can lead to cumbersome administrative problems, debate over issues irrelevant to public safety, and the reduction of interventions more likely to protect the community. Notification also increases the de facto sentence by adding a negative collateral consequence to the conviction. This article discusses the factual underpinnings of sex offender notification and some frequently overlooked complexities.

I. Myths and Realities

The purpose of community notification statutes is to alert the public to the presence of sex offenders who have been released into the community. In theory, people will use the information to avoid the threat presented by sex offenders in their midst; parents, in particular, will be able to warn their children whom to avoid. While this theory has intuitive appeal, it rests on factual assumptions that turn out to be substantially unfounded.

A. The myth of high reoffense rates.

The belief that sex offenders repeatedly reoffend fuels the rush toward community notification. "Statistics show that 95% of the time, anyone who molests a child will likely do it again," declared the Indiana senator proposing sex offender registration in that state. [1] A Florida senator referred to "sexual predators who start to look for their next victim as soon as they are released from prison," [2 ]and a California legislator warned the public that sex offenders "will immediately commit this crime again at least 90 percent of the time." [3]

Scholarly research does not support these claims. Elizabeth [?Margaret?] Alexander's comprehensive meta-analysis of 7,753 sex offenders [cfr. Alexander 1999] found reoffense rates of 10.9% among treated sex offenders and 18.5% among untreated offenders. [4] Lita Furby, whose work prompted the popular belief that "nothing works" to reduce sex offender recidivism, found overall reoffense rates of 12.7% among the 15,361 people she researched. [5] Most recently, a national report commissioned by the Office of Canada's Solicitor General found overall reoffense rates of 13.4%. [6] Thus, it appears that only a minority of identified sex offenders reoffend. Over 80% never offend again, almost the opposite of what many politicians claim, and substantially lower than for many other types of crime. [7]

One source of confusion about reoffense rates is the failure to distinguish between identified and unidentified offenders. Prior to getting caught, people are more likely to engage in repeat victimizations. Offenders may have sexual relations with one or several victims on a regular basis for lengthy periods of time, and it can add up to dozens or hundreds of separate contacts. But everything changes after getting caught. In the words of one ex-offender:

[W]ith arrest and the other shocking consequences of being discovered, those uncertain boundaries [stemming from one's own prior victimization] are suddenly and vividly redrawn. For most, that drawing emerges with very hard lines. More than with any other class of offender, getting caught leaves sex offenders humiliated, shamed and shaken to the core. Being handcuffed and hauled away from decent society is a shattering experience for anyone, but it is all the more electrifying and soul-stripping when the nature of the offense is as intimate and shameful secret as is a sex crime. [8]

People's own internal shock is the primary reason reoffense rates are relatively low even among untreated sex offenders. Unlike alcoholics, wife beaters or drug users who can create excuses for their behavior - I can control my drinking, she deserved to be disciplined, whatever - there is no excuse for fondling one's stepdaughter. People know they have done something shockingly wrong, and that realization drives them to stop. Punishment might be explicable on the basis of retribution, but not so much on the basis of likelihood of reoffense. And of course for those sex offenders who have not yet been identified, there is by definition nothing anyone can do.

Another technical matter that can inflate reoffense rates is failure to focus on recidivism for subsequent sex offenses. The prospect of repeat sexual offending is more troubling than the prospect of more mundane subsequent lawbreaking. People who commit sex crimes may someday shoplift, use drugs or get in a bar fight - likely at rates similar to the general population. Sex offense research tends to focus on the reoffense rate for additional sex crimes, but including subsequent crimes of a more general nature can substantially inflate recidivism rates. [9]

Another common source of inflation is the loss of an "up to" in the chain of reporting. Large studies of sex offenses generally find substantial ranges of reoffense rates - because different offenses and different types of offenders followed for different periods will generate different results. Researchers typically calculate overall rates as well as rates of specific categories, and report their findings with language such as "as low as 3%" or "up to 40%." Politicians and the press sometimes cite such research but they ignore the low figure and drop the "up to" from the high figure. By the time the research makes it to the public, it substantially overstates actual reoffense rates.

Reoffense rates are thus lower than widely believed. The unstoppable sex predator is primarily a creation of media and politicians highlighting the dramatic and pandering to prurient interests. While the unfortunate possibility that 15 out of 100 people might reoffend needs to be taken seriously, the scale of the misunderstanding and the speed with which it led to legislative action may be more significant than the statutes that happen to be enacted.

B. The myth that nothing works.

In her nationally syndicated advice column, Ann Landers reports that "the only molesters who can be considered permanently cured are those who have been surgically castrated. A drastic measure? Yes. But it's the only one that is guaranteed to work." [10]

The idea that nothing works can be substantially tracked to a 1989 study by Lita Furby. [11] Furby studied treatment outcomes in the mid 1980's and found evidence that treatment reduced recidivism to be inconclusive. Recidivism rates hovered around 13% for both treated and untreated offenders. A more recent study by the U.S. General Accounting Office reached a similar position. [12] Methodological problems and difficulty of matching comparison groups indicated that "more work was needed before firm conclusions could be reached." [13]

As a matter of logic, a conclusion of inconclusiveness is different from a conclusion that nothing works. As a matter of subjective experience, many researchers - even those who admit their research is not yet conclusive - are optimistic. A Vermont study of child molesters given sophisticated treatment found 4.6% recidivism after 3 years compared to 8.2% in the control group. Gordon Hall found reoffense rates declining from 27% to 19%, and Margaret Alexander found rates dropping from 18.5% to 10.9%. Robert Freeman-Longo of the Safer Society acknowledges the methodological problems but has decided that the latest research into state-of-the-art therapies resolves all doubts, and he declares "Treatment works!" - with the exclamation point. [14]

C. The myth that sex offenders are fundamentally different.

If average people are asked to describe a sex offender, they will probably paint a picture of a drooling, violent predator, either retarded or scheming, who rapes and kills for sexual pleasure. Nothing could be further from the truth.

First, sex offenses cover a wide range of behavior. Often they involve non-violent activity such as possession of child pornography or soliciting for prostitution, so there is no victim in the traditional sense. The most troubling sex crimes involve physical contact, usually with family members or friends, often children, who are manipulated or intimidated into silence. Most of these crimes involve fondling or undressing, though they occasionally rise to sex acts or intercourse.

Second, sex offenders tend to be ordinary in most respects. They hold jobs, have a place in a family, play sports and maintain friendships. The feature that distinguishes them is that many, if not most, were victims of abuse in the past. This fact does not excuse their misconduct, but it helps to explain it. Addressing the psychological harm done to offenders in the past may help to reduce the harm they inflict on others in the future, thus preempting intergenerational cycles of abuse.

II. Complexities

Behind the enactment of Megan's law lies the unspoken assumption that if only Megan's parents knew who lived in that house, Megan might be alive today. Of course we can never test the hypothesis for Megan, but local whispers raise doubts. Neighbors apparently knew that repeat rapist Joseph Cifelli lived in that house, and that he met his two roommates while serving time in a state prison for sex offenders. [15] It has even been reported that Megan's parents warned her to stay away, [16] but none of this prevented an inquisitive child from crossing the street to see a puppy.

The inability of Megan's family to prevent the tragedy is cause for sympathy, not criticism. It's not clear what action the parents could have taken that would have saved their daughter. Indeed, the difficulty of contingent action is one of the complexities behind community notification that goes largely unexplored. This section is devoted to exploring some frequently overlooked issues.

Impact on Victim and Other Family Members.  

Sex crimes typically occur among family and friends; 90% of rape victims under 12 years old knew their attacker. [17] In such cases, notifying the public of the offender's identify can also identify the victim. In cases of incest, for example, it is difficult to name the offender without also naming the victim. Moreover, the community that most needs to know of the incident - the family - almost certainly already knows. They don't need the sheriff to go door to door handing out their address. What impact will community notification have on an offender's wife? How should we help his children cope with the taunts in school? For how many years should the family suffer those consequences? Proponents of community notification need to consider the impact on nonoffending citizens.

Distracting, Irrelevant Arguments:  

Nowadays the question is not whether to notify the public but how. Should notification be by 800 number, which costs the state money, or by 900 number, which generates revenue? Should names be available on CD ROM or transmitted over the internet? Within how many days of moving must an offender notify authorities? Should notification be managed at the state or county level? By what agency? States are investing considerable energy addressing these problems - and none of that energy is going into treatment for either offenders or victims. The prevalence of these issues on talk radio demonstrates the political popularity of notification, but it distracts from discussion more likely to advance public safety. Citizens convinced that notification will make them safe might not demand to expand treatment opportunities that would make them safer yet.

Offenders Can't Normalize.  

A person who has once committed a sex crime needs more than anything else to learn to function normally in the community. The best path to safety is to help offenders cope with their various problems - trauma from past victimization, lack of trust, feelings of rejection or isolation, poor anger management or communications and social skills. Ostracism following public notification may exacerbate these problems and increase the risk of reoffense. Rejection by the community may lead people to despair of ever living a normal life, and such hopelessness can undermine attempts to conform to community standards, driving people inwards, where they may dwell on increasingly inappropriate fantasies.

Offenders Run Elsewhere.  

Organized community hostility to sex offenders in a neighborhood can compel offenders to move to less organized communities - where the person may be more likely to reoffend unnoticed. Even if the person stays in a community organized against him, he may easily travel a short distance to a place he is not known. The most notification can hope to achieve is increased safety in a small radius; the sphere of notification cannot possibly extend as far as a person can easily move in a motorized society.

Overbreadth.  

California's publicly available CD-ROM of sex offenders contains 64,000 names, including convictions for consensual sex among underage youth or gay men in the 1950's. [18] While the public thinks registration is for serious repeat violent offenders -"predators," is the usual term - the reality is more mundane. Overbroad registries provide at least two types of disservice: (1) they unfairly stigmatize the non-dangerous people branded by notification, and (2) they prevent the public from identifying the small number of truly risky individuals buried among thousands of other names. The national database managed by the federal government is designed for at least 250,000 names - though it was motivated by just a handful of high profile incidents. [19]

States that attempt to assess the risk of individual offenders can moderate problems of overbreadth, but broad statutory definitions of risk and the tendency of bureaucracies to protect themselves by classifying people as higher rather than lower risks still leaves too many low risk people subject to notification. Furthermore, it is essential to ensure accuracy in reporting. Arrests without convictions or very old convictions need to be reassessed by those maintaing registries and specifying notification, just as sentencing judges may discount older convictions at sentencing.

Vigilantism.  

Fears of widespread vigilante attacks on registered offenders have not materialized, but there are enough individual stories to cause alarm. The home of one sex offender was burned down in Oregon, and another's dog was beheaded and the head set on his doorstep. In New Jersey, home intruders beat an innocent man they mistook for a sex offender. Door to door leafleting and red signs posted outside homes - in the absence of serious community education and mediation - invite such abuse.

Decrease in Reporting.  

Reports from New Jersey and Colorado indicate decreased reporting of sex offenses against juveniles, including incest by family members, by people who do not wish to subject the family to community notification. [20] Careful attention must be paid to the disincentive notification places on victims to step forward, so both they and the offender can be dealt with.

Extension to Other Crimes.  

Is a sex crime more serious than a murder? Should the neighborhood be told if a murderer moves in? A former drug addict? Maybe police should tell the town that a man beats his wife - to subject him to the social stigma of his offense. . . . It is difficult to draw lines in notification. While criminal records tend to be public, going the next step to notification takes an affirmative act. Broad based notification for large classifications of sex offenses moves our society in the direction of still broader classifications of prior misdeeds being aired in public.

Misplaced Responsibility.  

Treatment is more effective when offenders are required to take full responsibility for their actions. They must change their thought processes and notify people in their support system - ranging from family and friends to employer and probation officer - about their mental states. Comprehensive treatment and community reintegration are superior means of increasing personal responsibility and internal control, while notification is an external means of surveillance. Notification shifts responsibility to the community, which can undermine offenders' personal sense of responsibility and leave the impression they can do whatever they can get away with.

False Security, False Fear.  

Community notification can leave neighborhoods with two simultaneous and paradoxically competing perceptions: a false sense of security and an artificial spread of terror. Passing a notification statute may soothe fears and make people feel the state is rooting out offenders in their midst, leaving a neighborhood relaxed when offenders from elsewhere drop by in search of victims. On the other hand, the sensational news coverage and fear-inspiring political speeches associated with passing a notification act can artificially inflate fears and make people feel monsters live among them. Neither of these feelings is particularly true. Strangers who commit repeat violent sex offenders are thankfully rare. Whatever good notification might do may be undone by statutory overbreadth and displacement of treatment opportunities.

III. Solutions

Legislation passed in the emotional aftermath of horrifying crimes is not the best path to a safe society. The time and money presently directed toward maintaining offender databases and designing notification schemes should be redirected to create and expand high quality treatment regimes. Treatment should be part of the sentence for people convicted of sex crimes, and available for those who identify themselves independent of the legal process. Trained counselors can detect emotional backsliding before it leads to completed actions, and they can intervene more effectively than barely informed neighbors. Long term therapy and strategies designed to normalize and reintegrate the lives of offenders in the community are the most promising path to neighborhood safety.

[Home]     [Up]