We’re Putting Sex Offender Stamps on Passports. Here’s Why It Won’t Curb Sex Tourism & Trafficking.
On October 30th, the State Department announced that passports of people who are required to register as sex offenders because of an offense involving a minor will be marked with a “unique identifier” that will read:
The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).
The law which occasions this requirement, International Megan’s Law (IML), was enacted in 2016 under President Obama. In addition to the identifier requirement, IML allows for existing passports of those on the registry to be revoked, and imposes criminal penalties on them for failure to provide the government with advance notice of international travel plans.
While U.S. law already provided for destination countries to be put on notice regarding the travel plans of those on the sex offender registry, IML ratchets things up by requiring the person to carry the government’s “identifier” with them wherever they go abroad.
Ostensibly, the rationale underlying IML and policies like it, such as its namesake, Megan’s Law — the legal and pseudo-colloquial term for the sex offender registry — is this: those on the registry have a high rate of reoffending therefore their international movements ought to be tracked and destination counties put on notice when those on the registry travel abroad. Indeed, in the text of the pre-amble to IML, it is stated that “known child-sex offenders are traveling internationally,” implying a connection between those on the sex offender registry and sex tourism, even though this connection is unsupported by evidence.
Like most legislation of this kind, IML received little serious debate and was quickly signed into law.
While IML and similar laws are packaged as a way to prevent sexual violence and exploitation, they do little to nothing to meet those objectives because they make assumptions about sexual offending that are incorrect.
For instance, people who have been convicted of sexual offenses generally have one of the lowest rates of re-offense out of any class of criminal. Dozens of studies have consistently confirmed this finding, including research from the U.S. Department of Justice. Along similar lines, a 2008 time-series analysis of 170,000 unique sex offenses found that 95.9% of the time, the perpetrator was a first-time offender.
In other words, nearly all reported sexual offending is being perpetrated by people who are not on a registry.
In light of the evidence, the argument that IML and other sex offense policies misdirect resources and attention from actual causes and obfuscate actual solutions is compelling. Experts such as John Hopkins professor and Director of the Moore Center for the Prevention of Child Sexual Abuse Elizabeth Letourneau have argued that, instead of focusing our attention and resources on sex offenders and criminal justice, we ought to focus on education and prevention efforts. Courts, such as the United States Court of Appeals for the Sixth Circuit, are also beginning to take notice. In striking down several aspects of Michigan’s sex offender registration statutes as unconstitutional in Does v. Snyder, the Court wrote:
The record below gives a thorough accounting of the significant doubt cast by recent empirical studies on the pronouncement in Smith that “[t]he risk of recidivism posed by sex offenders is ‘frightening and high.’”. One study suggests that sex offenders (a category that includes a great diversity of criminals, not just pedophiles) are actually less likely to recidivate than other sorts of criminals. Even more troubling is evidence in the record supporting a finding that offense-based public registration has, at best, no impact on recidivism. In fact, one statistical analysis in the record concluded that laws such as SORA actually increase the risk of recidivism, probably because they exacerbate risk factors for recidivism by making it hard for registrants to get and keep a job, find housing, and reintegrate into their communities.
Generally, when people on the registry are returned to prison it is for a “technical” violation of their supervision, as opposed to a new sexual offense, or for failure to comply with an increasingly byzantine and Kafkaesque patchwork of laws related to the sex offender registry. For instance, last month Zach Anderson, an Indiana teen who became a poster child for the overbreadth of the sex offender registry after having sex with another teen who lied about her age on a dating app, was arrested and taken into custody for two hyper-technical violations of his supervision. In Chicago, people on the registry have been turned away by police when they tried to register as sex offenders, only to later be arrested for failing to do so.
Because approximately 96% of those on sex offender registries are first time offenders laws such as IML would not have an impact at all on preventing the vast majority of sex offenses. To state it differently, even if one assumes that laws like IML have any deterrence on sexual offending or trafficking, it is only reaching roughly 4% of reported sexual offenses.
This conclusion is impelled with equal force in the context of international travel. The U.S. Government Accountability Office and State Department quietly admitted that there is no mass exodus of people on the registry traveling to sex tourism destinations to engage in rape and child molestation: they identified three cases over a five-year period where a person on the registry was convicted for a sexual offense overseas. To put that number in perspective, there are presently more than 800,000 people on a sex offender registry in the United States in 2017.
IML is more than simply ineffective at accomplishing what its authors have intended. As commentators have observed, the marking of “a basic badge of citizenship” with a proverbial Scarlet Letter is nearly unprecedented in history. The freedom of movement, including the right to leave one’s own country, is a basic and fundamental human right outlined in Article 13 of the Universal Declaration of Human Rights. Historically, the state marking the travel and civil documents of despised groups was only a prologue to further encroachments on fundamental rights.
As recent years have demonstrated, sex offenders have become a proving ground for law and policy that the public would (and should) otherwise find abhorrent. IML, and its attendant marking of the sine qua non of international travel documents, is just the latest high-profile example.
By misdirecting attention and resources away from actual causes and solutions, policies like IML obfuscate real solutions to the problems presented by sex tourism, trafficking, violence, and exploitation, and reinforce a narrative that is wholly divorced from facts. Because of this, policies like IML will only ultimately serve to perpetuate the very harms that they seek to prevent.
Guy Padraic Hamilton-Smith is an author and civil rights activist focusing on sex offense law and policy, criminal justice, and civil rights. His own experiences with the registry inspired him to go to law school, though was denied the ability to take the bar exam in Kentucky. Most recently, he successfully sued Kentucky in federal court for civil rights violations. His writing has been published in various outlets such as the Berkeley La Raza Law Journal and the American Bar Association’s State of Criminal Justice. He resides in Lexington, Kentucky with his fiancé and two cats. Connect with him @G_Padraic on Twitter.