Rethinking 'America's Unjust Sex Laws'

Yesterday in the grocery store I noticed the cover story on this week's Economist is a feature on "America's Unjust Sex Laws." Doc Berman recently provided links to the two main stories:

• Unjust and ineffective

• America's unjust sex laws

I particularly appreciated the observation that "The registry is a gold mine for lazy journalists." Lots of other good stuff here: The whole piece should be a must-read for policymakers. In fact, I wish Governor Perry could have read it before he vetoed legislation this year that would have allowed judges to remove Romeo and Juliet cases from Texas' registry.

Relatedly, Berman also points to a piece by Amir Efrati at the Wall Street Journal titled "Courts Face Growing Battle Over Limits on Ex-Convicts," which places in a national framework recent Texas cases in Judge Rob Junell's Western District court limiting restrictions by federal judges on ex-offenders. Last year the Fifth Circuit struck down Junell's routine practice of requiring that ex-offenders could live with no one but a spouse or family members.

In a similar vein, as discussed earlier this week, such post-conviction restrictions have become an issue in Texas state-level cases, but frequently the strictures the parole board adds the restrictions as a condition of release instead of having them dictated by a judge or jury at sentencing. Federal District Judge Sam Sparks recently said that the Texas Board of Pardons and Parole may have improperly labeled thousands of people "sex offenders," by requiring them to register upon release from prison even though they hadn't been convicted of a sex crime.

It's hard not to conclude upon close examination that our sex-offender statutes are a big mess and the concluding paragraphs to the main Economist article make the case especially strongly that the rest of the world has "no excuse" for following Americans' lead:

There are three main arguments for reform. First, it is unfair to impose harsh penalties for small offences. Perhaps a third of American teenagers have sex before they are legally allowed to, and a staggering number have shared revealing photographs with each other. This is unwise, but hardly a reason for the law to ruin their lives. Second, America’s sex laws often punish not only the offender, but also his family. If a man who once slept with his 15-year-old girlfriend is barred for ever from taking his own children to a playground, those children suffer.

Third, harsh laws often do little to protect the innocent. The police complain that having so many petty sex offenders on registries makes it hard to keep track of the truly dangerous ones. Cash that might be spent on treating sex offenders—which sometimes works—is spent on huge indiscriminate registries. Public registers drive serious offenders underground, which makes them harder to track and more likely to reoffend. And registers give parents a false sense of security: most sex offenders are never even reported, let alone convicted.

It would not be hard to redesign America’s sex laws. Instead of lumping all sex offenders together on the same list for life, states should assess each person individually and include only real threats. Instead of posting everything on the internet, names could be held by the police, who would share them only with those, such as a school, who need to know. Laws that bar sex offenders from living in so many places should be repealed, because there is no evidence that they protect anyone: a predator can always travel. The money that a repeal saves could help pay for monitoring compulsive molesters more intrusively—through ankle bracelets and the like.

In America it may take years to unpick this. However practical and just the case for reform, it must overcome political cowardice, the tabloid media and parents’ understandable fears. Other countries, though, have no excuse for committing the same error. Sensible sex laws are better than vengeful ones.