Sex Offender Registries and Community Notification: Making a Statement at a Cost

The body of 15-year-old Rose Palermo was found only three doors away from her Brooklyn home, on February 2nd, 1946. The girl’s favorite weekly activity was going out dancing with her friends. When she did not show up at home, her mother was not alarmed as Rose sometimes spent the night with friends after dancing. However, Rose’s mother awoke to screams at 2:30 A.M. She looked outside, and seeing nothing wrong, she went back to bed. It turned out, that was the sound of her daughter being beaten, raped, and strangled to death. The girl’s body was discovered at 10:40 A.M. the next day. It was nude except for stockings, and her ripped up undergarments were found nearby.[1] This crime was undeniably horrific, and sadly, it was in no way the only one to happen that year. Sex crimes are not a modern phenomenon, they have existed for an untold amount of human history, and one would not suggest that the sex crime in New York was the first to happen in the United States. However, even though sex crimes, like most other crimes, have been happening for much of human history, they were not being addressed on the federal level in the United States until much after 1946. The first piece of federal legislation addressing this issue was the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act. This act required all states to have a sex offender registration system that was linked to the offender’s address. Two years after the passing of the Jacob Wetterling act, Congress also adopted Megan’s Law, which added a requirement for community notification to the Jacob Wetterling act.[2] The concept of having every American who has committed a certain crime to be put on a public registry, and have community members notified when an offender was living nearby them, was never implemented against any type of crime other than sex crimes. Not against serial killers, not against domestic terrorists, and not against domestic abusers. Such a piece of legislation was not even implemented for sex offenses until 1994. The effectiveness of this legislation is heavily debated. There are mixed scholarly views as to how well registries and notification system work, or if they work at all. Scholar Amanda Agan says: “I find little evidence to support the effectiveness of sex offender registries, either in practice or in potential. Rates of sex offense do not decline after the introduction of a registry or public access to a registry via the Internet, nor do sex offenders appear to recidivate less when released into states with registries.”[3] Other scholars say that, while recidivism may decrease, it does not necessarily correlate to less sex crimes. Scholar J. J. Prescott notes that: “Notification laws may also reduce recidivism among known sex offenders by offering potential victims information they can use to protect themselves. But this publicity, by generating significant negative collateral consequences for released offenders such as the loss of employment, housing, and social ties, may also increase their proclivity for crime.”[4] However, regardless as to whether or not the laws work, they come with consequences. In this essay, I will argue that while there may be scholarly debate as to whether or not sex offender registries and community notification are effective in reducing the amount of sex crimes that are perpetrated, by looking at the impact moral panic had on the passing of such legislation, and the guaranteed downsides of the legislation, I will try to show these laws serve an expressive function rather than a practical one. This is important, because if these laws exist to make a statement, and if they are not proven to have positive and practical effects, then their existence may need to be reconsidered.

The first federal piece of legislation regarding sex crimes starts with a name, “Jacob Wetterling.” The act is not simply called the “Crimes Against Children and Sexually Violent Offender Registration Act.” On October 22nd, 1989, 11-year-old Jacob Wetterling was kidnapped by a man who had a gun. There were two boys with Jacob at the time, and the abductor told Jacob to stand still and said that if the other boys did not run into the woods, he would shoot them. Just 5 years after Jacob’s tragic kidnapping, the Jacob Wetterling act was passed in congress. This was not the only example of a federal sex crime law being named after the victim of a crime. On August 1st, 1994, the murderer of 7-year-old Megan Kanka admitted to committing the murder. He told the court that he told Megan to come into his house and see the new puppy he had just bought. Once inside the house, he pulled the young girl into his room, where he proceeded to strangle her with a belt and sexually assault her. The murderer, Jesse Timmendequas, had been previously convicted of attempted sexual contact, aggravated assault, and attempted sexual assault of a child.[5] The late 1980s and early 1990s is when the moral panic surrounding sex crimes began, and in particular, those against children. These years featured high profile cases of sex crimes being committed against children, such as the sexual assault, kidnapping, and murder of Polly Krass,[6] which happened the same year as the kidnapping of Jacob Wetterling. Two years later, when the next piece of sex crime legislation was passed, it was once again named after the well-known victim of a crime. What happened to Jacob and Megan is calamitous, but so is what happened to the two girls in New York in 1946. Even though the United States was founded in 1776, it took over 200 years for legislation to be enacted at the federal level regarding sex offenders. What made the stories of Jacob and Megan so much more powerful that they had this kind of impact on U.S domestic policy? Scholar Steven Morrison argues that the increase in religious conservatism is responsible.

The public outcry over the sex crimes of the late 1980s and early 1990s, and in particular Megan Kanka’s rape and murder, was influenced by the religious right in America, and its rise during the same time period. Along with legislation being passed regarding sex offenders, there was also legislation passed in Congress to go after another form sexual behavior: homosexuality. The Defense of Marriage Act was also passed in 1990s, defining marriage as heterosexual. The religious right’s rise was present in legislation and in the call-to-arms over sex crimes. The reaction that Americans had to Megan’s case, as well as other high profile sex-offense cases in that time period were, in Morrison’s opinion, caused by 3 factors. “First, Christianity’s influence over American society is strong, whether the currents of influence flow one way or two. Second, Christianity’s influence over societal norms is felt most strongly in the realm of sexuality, specifically in regards to establishing a dominant or normative sexuality, as well as alternative, deviant sexualities that exist outside of the norm.”[7] The increase in rightwing religiosity combined with the high profile rape cases of the 1990s could be identified as one of the sparks for the moral panic surrounding sex crimes.

High profile cases of sexual abuse along with the rise in the religious right resulted in a moral panic directed towards sex offenders. The term moral panic was first mentioned in the 1972 book Folk Devils and Moral Panics by Stanley Cohen. The very first paragraph of the book gives a good representation of what a moral panic can be:

A condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right-thinking people . . . Sometimes the panic passes over and is forgotten, except in folklore and collective memory; at other times it has more serious and long-lasting repercussions and might produce such changes as those in legal and social policy or even in the way the society conceives itself.[8]

A moral panic is when a “condition, episode, person or group of persons,”[9] as stated by Cohen, becomes ridden with stereotypes about its behavior, and those stereotypes are then propped up by media and other authorities on the matter. Cohen also acknowledges that these moral panics can have effects in the form of legal policy. While he may have been discussing the American response to gang violence, moral panic’s presence can be found in the national response to sex crimes as well. Scholar Gayle Rubin identifies moral panic as “the most important and consequential kind of sex conflict,”[10] and that it is due to the conflict’s political nature and legal consequences. She further describes behavior during one of these moral panics, saying that “media become ablaze with indignation, the public behaves like a rabid mob, the police are activated, and the state enacts new laws and regulations.”[11] This is very similar to Cohen’s original description of a moral panic. However, his definition mentions that normally, a particular group of people is the target of the panic. Rubin confirms this, saying “generally, the outbreak of a moral panic is preceded by an intensification of such scapegoating.”[12] In the case of the sex panic of the 1990s, the moral panic was not just about sex crimes, it was about who was committing them, and Morrison goes on to explain the public’s idea of who those individuals were.

The average image of a sex offender is one of disgust and danger. If one is asked to describe a sex offender, they might describe someone like Jesse Timmendequas. The kind of person who would betray the trust and innocent of a girl like Megan, offering her the chance to enter a house to see a new puppy, only to never leave the house alive. The media portrayed Jesse as antisocial and awkward. His divorced parents never showed up. He was not from a family of love like Megan was, his father raped him and beat him. He even killed animals in front of Jesse. The prosecutors also reminded the jurors of how Jesse looked when he lived across the street from Megan, citing a patrol officer who described him as “dirty looking.”[13] This did not reflect what many Americans would consider to be an acceptable familial situation, and they make Jesse out to be an outcast, but one who had the ability to one day murder Megan, and destroy the lives of her family. Jesse is just one example of the dark image surrounding sex offenders. In a time of family values, one can see how such a moral panic would begin. Sex offenders were viewed as disgusting and dangerous child molesters and rapist, strangers that were in essence modern day boogiemen, waiting to prey on innocent children, but this image is not the reality of what average sex offenders actually are.

While some sex crimes are indeed harmful, there are many that are comparatively harmless which still require one to register; not all sex offenders committed violent crimes. Sexual assault, for example, is obviously a sex crime and if someone commits it, they will be forced to register as a sex offender. Sexual assault is directly harmful to the victim, but not all sex crimes are. Furthermore, not all sex crimes have a specific victim. For instance, public nudity is illegal in some states. While this may make people uncomfortable if they see it, does not harm them in a way that is at all comparable to how someone is harmed by being sexually assaulted. Displaying sexually suggestive words or photos in public can also cause one to be arrested and put on the sex offender registry.[14] Having a shirt with a sexually explicit phrase on it, or a bumper sticker of a similar manner, would be considered by most people to not be harmful in the way that sexual assault is, yet those who commit this crime must still register as a sex offender. These are not the only crimes like this. Sexting, public urination, having sex in a car, mooning, filming or taking pictures of one’s child in the bathtub, providing contraceptives to one’s child, streaking, and a 17-year-old minor having sexual relations with an 18-year-old adult are all examples of potential sex offenses.[15] Many of the crimes that would put on the sex offender registry are not violent crimes, nor do they have a specific victim. Not only are the crimes frequently less severe than most people assume, but data shows that it is not strangers who pose the greatest risk of sexually abusing children. Only 10% of the children that fall victim to molestation are being abused by a sex offender who did not already know them. Not only that, but almost half of all sex offenses are committed by family members and acquaintances. What this means is that only 10% of pedophiles molest children that they have not met previously, and that the majority of the time, the abuse is done to children the sex offender already knows.[16] The people who present the most danger to a child, in terms of risk of sexual violence, are those closest to the child, not strangers. The end of the 20th century was the beginning of the Christian conservative focus on family values.[17] The image of the sex offender does not coincide with what a moral family member would be like, but the data shows that a family member presents more of a risk of sexual misconduct than a stranger does. The fact that the registry contains many sex offenders that are only in it for committing misdemeanors and that the stereotypical image of an offender is inaccurate results in a danger for families. If parents are utilizing a sex offender registry to identify possible threats to their child, then they could be missing a large part of the danger, because it is not the stereotypical sex offender that poses the greatest risk; it is rather the people who already know the child.

The sex offender registry can cause parents to be complacent, and not take the necessary precautions to protect their children. If one thinks that the greatest threat to their kids are the men and women on the registry, they are going to take actions to avoid those people. That could be telling their children to not go on a certain street, it could even mean the family moving to a whole other neighborhood to avoid living near an offender. On top of this, there are going to be plenty of sex offenders who have not been caught, but are not on the registry. These actions do nothing to protect the child against family members or family acquaintances that could pose a risk to the child. This does not mean that strangers do not pose a threat to the child, they still can. However, other parts of sex crime laws only further increase complacency. Certain areas like schools and playgrounds might be labeled “predator-free-zones.”[18] This designation is not going to create some sort of barrier between the sex offenders and the children, but it can create a lack of urgency felt on the part of the parents if they are ever at one of those locations. This is the complacency that puts children in danger. If parents are not alert to all threats that face their children, and rather focus on a very small portion of sex offenders, the chance that they will become victims of sex crimes will increase. Not only does current sex crime legislation endanger children, but it harms entire communities.

There are real-world effects of having a sex offender registry and notification laws, some of which harm those who the legislation attempts to protect. As part of community notification and sex offender registries, one will be able to learn if there is a sex offender living in a particular neighborhood. This may be viewed as helpful, as it will give people a sense of safety is there are no registered offenders living nearby. However, the registry has downsides for those who inevitably do live near an offender. A study found that on average, when a sex offender moves into a neighborhood, the nearby surrounding homes lose, on average, $5,500 in value.[19] This means that, along with the registry causing complacency with parents by providing a false sense of security, it harms the families finically. The Jacob Wetterling act, Megan’s law, and subsequent legislation cause harm at a more legal level as well.

Recent Supreme Court decisions have undermined the protections guaranteed by the constitution. The Ex Post Facto Clause of article I, § 9 of the U. S. constitution “prohibits retroactive application of criminal laws, including an increase in punishment beyond what was prescribed when the crime was committed,”[20] yet legal scholars have found that this protection the constitution guarantees to American citizens has been disregarded in various cases regarding sex offenders.[21] In Smith v. Doe, the Supreme Court found that retrospectively applying a registration law to sex offenders convicted before the law was passed was not punitive in nature, and therefore this retroactive application was not unconstitutional. The law’s intent of increasing public safety was cited as the reason for it not being punitive in nature.[22] However, due to the restrictions that are placed upon a convicted sex offender show that sex crime legislation does indeed punish the offenders. This disregard for the constitution, the large reduction of property values for communities across the nation, and the endangerment of children are all consequences of sex offender registries and community notification, yet these laws are still in place. In this respect, sex offender registries, community notification, and predator-free-zones are serving an emotional function rather than a practical one. Sex offender registries and similar legislation does not protect citizens, rather it instead makes a statement at the expense of their safety.

The “expressive function of law” is a term fist coined by legal scholar Cass R. Sustein in his article On the Expressive Function of Law. He argues that many laws have an expressive function as opposed to a practical one; or as put by Sustein: “. . . the function of law in “making statements” as opposed to controlling behavior directly.”[23] If sex offender registration and community notification are not actually as effective in reducing sex crimes and protection children from predators, there must be a reason that people still support them. Even though these laws have existed for over two decades, they have not been repealed despite the legislation’s downsides. Sustein also offers an explanation for this kind of phenomenon: “many people support law because of the statements made by law, and disagreements about law are frequently debates over the expressive content of law.”[24] The expressive content of the law is the values and statements that are found within. However, the statement that is being made within sex crime legislation is not simply that sex crimes are immoral. These crimes were illegal before the 1990s.

Within his article, Sustein notes that people support the death penalty for the statement it makes, not for its practical effects. “Many people who endorse capital punishment would not be much moved by evidence that capital punishment does not deter people from committing crimes. Their primary concern is the symbolic or expressive content of the law, not aggregate murder rates.”[25] In this scenario, the people in support of the death penalty are trying to make a statement rather than simply reduce the amount of murders that there are. The statement being made is that the supporters of the death penalty find murder so egregious that they are willing to enable the state to end the life of those convicted of murder. This is very similar to the public support for sex offender registries and community notification. There is evidence to support the claim that these laws do not reduce sex crimes, and their functionality is at best inconclusive, yet there is still support for them. Even with various downsides, people’s support is not deterred. Just like with the death penalty, there is a subtler reason for the laws. The purpose is not to just keep people safe from offenders, or to tell potential offenders to not commit sex crimes. The statement being made by sex crime legislation at the federal level is that the types of crimes are so horrible, that the federal government will disregard the constitution, lower property values of its citizens, and risk instilling complacency in parents, all to further punish sex offenders.

There is not just an expressive function of law, there is also an expressive function of punishment. Similarly, this expressive function is the statement that is being made by applying a particular punishment to a crime. “ . . . Punishment generally expresses more than judgments of disapproval; it is also a symbolic way of getting back at the criminal, of expressing a kind of vindictive resentment.”[26] The power of this resentment can be seen by the punishment the justice system gives to sex offenders. In a 1984 study, jurors were likely to recommend sentences to an alleged child molester that were harsher than the sentences normally given to someone convicted of first-degree murder. A 1988 study found that jurors view sex offenders as a separate group of defendants. These attitudes persist today, with a 2011 study finding that attitudes in regard to punishment are harsher toward sex offenders than toward nonsexual offenders, even for crimes where the severity is similar. The study also found that these attitudes are not entirely rational, due to people receiving sex offenders as a unique type of criminal. The study furthermore found itself to be consistent with the idea that the public response to sex crimes represents a moral panic.[27] This supports the idea that both the laws regarding sex crimes and the punishments that the sex offenders receive serve expressive functions. People view sex crimes to be worse than crimes that are not sexual in nature. This would explain why the costs of sex offender registries and community notification policies are deemed to not outweigh the “positive” of giving harsh repercussions to those convicted of committing crimes that are sexual in nature.

If one views encouraging complacency in parents, entire neighborhoods losing property value, and the disregard for the constitutional rights of sex offenders as a price worth paying to punish sex offenders, that person’s view will not be persuaded by being shown how scholars do not agree on whether or not sex offender registries and community notification actually help reduce sex crimes. That person supports the expressive function of these laws, and the punishment that the offender receives. However, it is the responsibility of the government to pass laws after weighing their costs and benefits, while at the same time remaining rational in not succumbing to moral panic. The expressive benefit of sex crime legislation, the punishment of offenders, comes at the price of innocent people. This is not to mention the low level offenders who suffer from the vindictive nature of moral panic. The effectiveness of the Jacob Wetterling act and Megan’s law is debated, but the harm that these laws create is clear. Until there is a scholarly consensus as to whether or not these laws work, their existence will not be justified, and neither will their negative side effects.

1: The New York Times. “MURDERED GIRL, 15, FOUND IN BROOKLYN.” New York Times (1923-Current File), Feb 03, 1946

2: Rebecca L. Visgaitis, “Retroactive application of the sex offender registration and notification act: A modern encroachment on judicial power.” Columbia Journal of Law and Social Problems, 45(2), (2011): 273–302.

3: Amanda Y. Agan, “Sex Offender Registries: Fear without Function?” The Journal of Law & Economics 54, no. 1 (2011): 207–39. doi:10.1086/658483. 209.

4: J. J. Prescott, “Do Sex Offender Registries make Us Less Safe?” Regulation 35, no. 2 (2012): 48–55.

5: “Suspect Confessed in the Murder of a 7-Year-Old, Prosecutors Say.” New York Times (1923-Current File), Aug 02, 1994.

6: Michelle L. Meloy, Yustina Saleh, and Nancy Wolff, “Sex Offender Laws in America: Can Panic‐Driven Legislation Ever Create Safer Societies?”Criminal Justice Studies 20, no. 4 (December 1, 2007): 423–43. doi:10.1080/14786010701758211

7: Steven R. Morrison, “Creating Sex Offender Registries: The Religious Right and the Failure to Protect Society’s Vulnerable.” American Journal of Criminal Law 35 (2007): (1): 23–89. http://search.proquest.com/docview/206274069?accountid=13314

8: Stanley Cohen, “Deviance and Moral Panics,” in Folk Devils and Moral Panics: The Creation of the Mods and Rockers. London: Routledge, 2002, 1–20, 1.

9: Ibid,. 1.

10: Gayle Rubin, “Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality” in Pleasure and Danger: Exploring Female Sexuality by Carole S. Vance (Boston, London, Melbourne and Henley. Rutledge and Kegan Paul, 1984) 163

11: Rubin, “Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality,” 163.

12: Ibid,. 163.

13: Steven R. Morrison, “Creating Sex Offender Registries: The Religious Right and the Failure to Protect Society’s Vulnerable.” American Journal of Criminal Law 35 (2007): (1): 23–89. http://search.proquest.com/docview/206274069?accountid=13314

14: Ibid.

15: Ryanne Colbert. “Discrimination Needed: The Over-Inclusive Definition of Who is a Sex Offender.” Journal of Criminal Psychology 1, no. 1 (2011): 43–50. doi:http://dx.doi.org.ezproxy.princeton.edu/10.1108/20093829201100005.

16: Steven R. Morrison, “Creating Sex Offender Registries: The Religious Right and the Failure to Protect Society’s Vulnerable.” American Journal of Criminal Law 35 (2007): (1): 23–89. http://search.proquest.com/docview/206274069?accountid=13314

17: Seth Dowland, ‘“Family Values” and the Formation of a Christian Right Agenda’. Church History 78, no. 3 (01 September 2009): 606–31. doi:10.1017/S0009640709990448.

18: Michelle L. Meloy, Yustina Saleh, and Nancy Wolff, “Sex Offender Laws in America: Can Panic‐Driven Legislation Ever Create Safer Societies?” Criminal Justice Studies 20, no. 4 (December 1, 2007): 423–43. doi:10.1080/14786010701758211

19: Amanda Y. Agan, “Sex Offender Registries: Fear without Function?” The Journal of Law & Economics 54, no. 1 (2011): 207–39. doi:10.1086/658483.

20: Sarah E. Agudo, “IRREGULAR PASSION: THE UNCONSTITUTIONALITY AND INEFFICACY OF SEX OFFENDER RESIDENCY LAWS” Northwestern University Law Review 102, no. 1 (Winter, 2008): 307–341. 321.

21: Kelsey Eagan, “FORFEITING SEX OFFENDERS’ CONSTITUTIONAL RIGHTS DUE TO THE STIGMA OF THEIR CRIMES?: STATE V. TROSCLAIR.” Loyola Law Review 59, no. 1 (2013): 267–288.

22: “Criminal Law — Sex Offender Registration — Ninth Circuit Holds That Retroactive Application of SORNA to Juvenile Violates Ex Post Facto Clause. — United States v. Juvenile Male, 581 F.3d 977 (9th Cir. 2009).” Harvard Law Review 123, no. 6 (2010): 1524–531.

23: Cass R. Sunstein, “On the Expressive Function of Law.” University of Pennsylvania Law Review144, no. 5 (1996): 2021–053. doi:10.2307/3312647. 2024.

24: Sunstein, Cass R. “On the Expressive Function of Law.” 2023.

25: Ibid,. 2048.

26: Joel Feinberg, “THE EXPRESSIVE FUNCTION OF PUNISHMENT.” The Monist 49, no. 3 (1965): 397–423. 403.

27: Christopher J. Ferguson and Darrin L. Rogers, “Punishment and Rehabilitation Attitudes toward Sex Offenders Versus Nonsexual Offenders.” Journal of Aggression, Maltreatment & Trauma 20, no. 4 (2011). 395–414. http://dx.doi.org/10.1080/10926771.2011.570287