This piece is a commentary, part of The Appeal’s collection of opinion and analysis on important issues and actors in the criminal legal system.
Last month, New York Governor Andrew Cuomo unveiled a legislative proposal billed as a way to “prevent convicted sex offenders from using social media accounts, dating apps and video game chat functions to exploit children.”
But Cuomo’s proposal would do little to stop sexual harm on these platforms—and would most likely undermine public safety by creating a false sense of security that plays on popular myths about sexual violence.
Instead, it would simply make it more difficult for people who have been held accountable for a crime to reintegrate into society.
The proposal would make it a crime for people with prior sex crime convictions to misrepresent themselves online, and would require that they disclose their “internet identifiers” to authorities who, in turn, provide that information to social media platforms to potentially exclude them from their user base.
Cuomo has been criticized in the press as being soft on crime in the wake of New York’s criminal discovery reforms and abolition of cash bail for most offenses. And, surely knowing that politicians rarely lose votes by targeting unpopular groups of people in the name of public safety, Cuomo turned to one of the most well-worn targets of this particular trope: people with prior convictions for sex offenses.
His proposal also comes after BuzzFeed sounded the alarm about purported predators lurking in the digital shadows. BuzzFeed detailed sexual violence experienced by users of platforms like Tinder and Match, and observed that these platforms allowed people with prior sex offense convictions to use them.
Of course, the goal of creating safe communities, online and elsewhere, is laudable. Sexual harm is a pressing problem in our society, and one that we have an undeniably bad track record of addressing if social movements like #MeToo are any indication.
Although Cuomo’s proposal purports to take sexual violence seriously, it aggressively ignores reality in favor of lazy solutions. Data from the U.S. Department of Justice indicates that most people who are held accountable for a sex offense aren’t rearrested for another sex offense. Research indicates that more than 95 percent of all arrests for sex crimes involve someone without a prior sex crime conviction. Data involving arrests of people with prior sex offense convictions specifically involving social media and other online platforms is limited, but a 2009 study examining trends in arrests for sex crimes against minors between 2000 and 2006 found that 96 percent involved someone not on a registry. And a 2016 article appearing in the Journal of the American Academy of Psychiatry and the Law observed that “to our knowledge, no data have yet demonstrated that banning sex offenders from the Internet or [social media platforms] actually reduces recidivism rates.” Similarly, buried in the middle of BuzzFeed’s reporting was the fact that—of the cases of sexual violence facilitated by online platforms—“only a fraction” involved someone on a sex offense registry.
In other words, even assuming that everyone with a prior conviction is banished from the digital landscape (and assuming that those who are determined to commit a crime don’t simply lie about their presence), the reality is that the vast majority of sexual violence remains unaffected.
But more than being ineffectual, the government seeking to ban people from online platforms in this way is also arguably unconstitutional. The Supreme Court ruled in 2017 that it was a violation of the First Amendment for the government to ban people convicted of sex offenses from social media. Governor Cuomo’s proposal does not (and could not legally) make it a crime outright for people to be on social media, but it seeks to make it impossible for them to do so. The express goal of the proposal, according to Cuomo’s announcement, is to get platforms to “purge their sites of offenders,” since the private corporations that run the modern public square are free to exclude whomever they choose. In other words, it is a ban by another name.
Given the proliferation of social media in the modern era, this is like banning people from using the telephone because they might use it to phone a victim.
Proposals that purport to take the problem of sexual violence seriously should actually do so, by recognizing the realities of it, and by ensuring that people who have exited the criminal system can effectively reintegrate into their communities. It denies reality to suggest that making that process more difficult enhances public safety in any way.
Just as we want people to be held accountable for sexual harm, we should also want politicians to be held accountable for the policies that they implement. Protecting the public is a worthy goal, but the only person who stands to be protected by Governor Cuomo’s proposal is himself.
Guy Padraic Hamilton-Smith is the legal fellow for the Sex Offense Litigation and Policy Resource Center at the Mitchell Hamline School of Law, and routinely writes about sexual violence prevention, civil rights, and criminal justice for a variety of outlets. His own experiences with the sex offense registry inspired him to go to law school, which he has written about here. You can follow him on Twitter @G_Padraic.