Exploring the Efficacy of Sex Offender Registration

Introduction

Sex offender registration system and notification is justified on the ground that it enables citizens to take preventive measures against sexual victimisation and also provide assistance to law enforcement services by identifying perpetrators (Najdowski, et al., 2016 ). Research has shown that sex offender registries help citizens to take preventive steps; for instance, an American study revealed that 68% of community members who had accessed their state’s online sex offender registry also educated their children, and babysitters about the presence of sex offenders in the community (Boyle, et al., 2014). The same study revealed that such persons also monitored their children more and also improved home security as a response to the perceived threat of sex offenders (Boyle, et al., 2014). Therefore, there are some reported benefits of the sex offender registration system for the purpose of enabling preventive steps by the potential victims or their families. However, this essay considers the question of the comparative evaluation of the sex offender registration and notification/disclosure systems in the United States and the UK from the perspective of the criminological theory, more particularly, the deterrence theory which is generally used to justify the use of the sex offender registration system (Najdowski, et al., 2016 ; Robinson & Darley, 2004). The essay explores whether current literature and evidence supports the thesis that sex offender registration system leads to general deterrence and reduction of the incidence of sex offending and whether the use of the system for both adult and juvenile sex offenders is justified.

Theories

Criminological theory emphasises on the potential for sex offender registration to serve as a deterrent for would-be adolescent sex offenders (Najdowski, et al., 2016 ). Therefore, the deterrence theory is used here in this essay to explain the responses of the UK and United States to se registration. The use of sexual offender registration as one of the responses of the criminal justice system is based on the general assumption that public dissemination of convicted sex offenders’ personal information and criminal offences will have the effect of reduction of rate of future sexual offending (Najdowski, et al., 2016 ). Robinson and Darley (2004) specifically point to this assumption when they write that the “criminal law makers and adjudicators formulate and apply criminal law rules on the assumption that they nearly always influence conduct” (Robinson & Darley, 2004, p. 173). However, there is a question as to whether the system is actually effective for deterrence (Robinson & Darley, 2004). Indeed, at least with reference to juvenile sex offenders, research does indicate that there is not much effect of the registration system for the reduction of the incidence of sex offending amongst this population (Najdowski, et al., 2016 ).

Another question that may be relevant here in terms of theory, is related to the perception of reoffending and the notion that individuals found guilty of a sex offense are likely to reoffend; but this has been challenged by research that shows that sex offenders are among the least likely to reoffend especially if they were children when they committed a sex offence (Human Rights Watch, 2013). Thus, while sex offender registries may be premised on the principle of prevention of recidivism, research indicates that individuals with sex offender past have low recidivism rates (Chaffin, 2008).

Moreover, there is also a concern about whether the sex offender registration system should differentiate between adult and juvenile offenders; in this respect, it been noted:

“The term “sex offender” implies that the individuals who engage in sexually abusive behavior are all alike and can be managed in the same way. However, because adult and juvenile sex offenders are such diverse populations, “one size fits all” approaches are neither appropriate nor effective. Determining what to do with which offenders, how and when to do it, and why it should be done demands careful consideration to the varied levels of risk, needs, development, and functioning of these individuals” (Bumby, et al., 2007 , p. 75).

The above statement emphasises on the need to differentiate between adult and juvenile sex offenders for the purpose of devising approaches or management techniques aimed at reducing incidence of sex offending amongst these diverse populations. One of the questions that is therefore raised in this essay with respect to comparative evaluation of the sex offender registration and notification/disclosure systems in the United States and the UK is whether there is a difference between how the systems are used with respect to the diverse population of offenders or put simply, if the two countries’ systems differentiate between the adult and juvenile offenders. Research suggests that there is no positive link between deterrence for adolescent sexual offending and registration (Najdowski, et al., 2016 ). This has led researchers to argue that a “blanket extension of deterrence-driven policies to adolescent offenders may be short-sighted and ultimately ineffective without proper consideration of well-documented principles of adolescent development that are known to impact youth decision making and behaviour” (Najdowski, et al., 2016 , p. 115). Therefore, the question of whether a system that is used to respond to adult sex offending should be extended to juvenile offenders as well and this is one of the questions that is raised here to compare the two countries’ response to registration of sex offending.

Case study: Registration and notification of sex offenders

At the outset, it is important to note the difference between registration of sex offenders and notification of sex offenders because while the former is practiced in both the US and the UK, the latter is followed in the US. The difference between the two is explained well by Prescott and Rockoff (2011) as follows:

“Notification laws mandate the dissemination of information about sex offenders (for example, criminal history, physical description, and home address) to the public. Registration laws, by contrast, require that sex offenders provide these specifics to some division of government (such as the local police), but the information is otherwise kept confidential” (p. 163).

Clearly then, there are important differences between registration and notification. Registration requires that sex offenders be registered with the police while notification requires that sex offenders’ information be made public. The purpose of registration and notification are also different with the former intended to assist the law enforcement agencies in monitoring offenders and apprehending known recidivists and the latter aimed at reduction of crime through public awareness of nearby offenders, which can lead to offender avoidance, public monitoring, and public identification of a suspect (Prescott & Rockoff, 2011).

In the United States, the sex offender registration and notification system is regulated by a federal law, specifically Title 1 of the Adam Walsh Child Protection and Safety Act of 2006 relates to the registration of juvenile sex offenders (Bowater, 2007). The Adam Walsh Child Protection and Safety Act of 2006 was enacted to establish a comprehensive, national sex offender registration system, the Sex Offender Registration and Notification Act or the ‘SORNA’ (Bowater, 2007). SORNA requires registration of juvenile adjudicated delinquent of aggravated sexual abuse, who was fourteen years of age or older at the time of the offence. The law mandates the same extent of community notification to a juvenile sex offender as an adult offender (Bowater, 2007).

SORNA is based on the premise that sex offender registration is essential for monitoring and tracking sex offenders after they are released into the community (Bowater, 2007). SORNA registration includes information about convicted sex offenders which is provided to the local and federal authorities and the public; the information is put up on sex offender websites in all states and because the law is federal in nature, all jurisdictions within the United States are meant to comply with the standards outlined in the law. In the event that there is a failure to register with the SORNA with reference to a sex offender this is treated as an offence under the law. The sex offenders are required to update their registration to reflect on the details of residence, employment, and attendance at any school or universities (Bowater, 2007). Failure to register correct and updated details is a crime. The law also envisages the appointment of CEOS works with the High Technology Investigative Unit (HTIU), the Federal Bureau of Investigation (FBI) and United States Attorney's Offices around the country to investigate and prosecute sex offenders who fail to register pursuant to the Sex Offender Registration and Notification Act (SORNA).

When youth sex offenders are released from the juvenile detention or prison, they become subject to registration laws that require them to disclose continually updated information, with the requirement to register lasting usually for decades (Human Rights Watch, 2013). Information about youth offenders who are prosecuted in juvenile courts are disclosed not only to law enforcement, but also to the public for most states in the United States under the community notification laws (Human Rights Watch, 2013). Residency restriction laws are also applicable to such individuals and such laws may be used to impose a range of rules about where such convicted juvenile sex offenders may live (Human Rights Watch, 2013).

In the United States, the Center for Sex Offender Management (CSOM) developed the Comprehensive Assessment Protocol: A Systemwide Review of Adult and Juvenile Sex Offender Management Strategies (CAP) to help the state jurisdictions in making their registration systems more effective (Bumby, et al., 2007 ). The CAP is based on five fundamental principles which form a “Comprehensive Approach” to adult and juvenile sex offender management: specialized knowledge and training; victim-centered approach; collaboration; public education; and monitoring and evaluation (Bumby, et al., 2007 ). One of the key underpinning principles therefore is monitoring and evaluation. However, the question is how far this approach is justified in the context of juvenile offenders.

In the United States, very young children have also been notified as sex offenders; there are cases of children as young as 9 years old being placed on the sex offender registry in Michigan and Delaware and research has suggested that 9% of minors on Delaware’s registry were under the age of 12 in 2011 (Human Rights Watch, 2013). There has been some concern that this has a negative impact on the young people who are placed on the registry and can in fact do further harm to a young individual who may have to face social and public exposure and isolation as a result of this (Human Rights Watch, 2013).

In the United Kingdom, offenders are placed on the register based on the offence committed by them, which are noted in the Schedule 3 of the Sexual Offenders Act 2003. It may be mentioned that the sex offender registration system was first introduced in the 1997 Sex Offenders Act (O'Sullivan, et al., 2016). The Sexual Offenders Act 2oo3 extended police powers and sex offence registration (O'Sullivan, et al., 2016). It is only in case of the conviction for these offences can the individuals be placed on the register, which is the Violent and Sex Offender Register (ViSOR). The offences for which sex offence registration is required are provided in Schedule 3 and include offence of rape under Section 69, intercourse with a girl under 13 under Section 5, intercourse with a girl under 16 under Section 6. Other offences for which sex offenders will have to be registered are incest by a man under Section 10, buggery under Section 12, and indecent assault on a woman under Section 14.

As per Section 82 of the Sexual Offences Act 2003, notification period is prescribed for individuals who are convicted for specific sexual offences (Lieb, et al., 2011). The time period for which the individual remains notified in the register is also based on the sentence or disposal as per Section 82 of the Sexual Offences Act 2003. Therefore, there are varying time periods for which different individuals may be subject to notification as sex offenders. There is also a difference drawn between adult offenders and child offenders in terms of the time to be spent on the register. As per the law, those who are under 18 years old receive a youth caution for a sexual offence are kept on the register for one year where an adult may be placed on the same register for 2 years (Youth Justice Legal Centre, 2016). Those who are less that 18 years old and sentenced for 6 months or less are kept on the register for three and a half years where the same would be 7 years for an adult (Youth Justice Legal Centre, 2016). In case of sentences between 6 to 30 months, the under 18 years old individuals are kept on the register for 5 years where the same is 10 years for an adult (Youth Justice Legal Centre, 2016). Only those children and adults who are imprisoned for more than 30 months are placed on the register for an indefinite period of time (Youth Justice Legal Centre, 2016).

The UK sex offender registration system is in part inspired by the existing laws and systems in the US; the most prominent of these being the Megan’s Law which was established to improve the sex offender registration system in the US after the rape and murder of a seven year old girl by a sex offender (Wright, 2014). In the US, there was already a law for sex offender registration in the form of Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act of 1994, which required sex offenders to register with local law enforcement, but did not require any public notification of the offence. In the aftermath of the rape and murder of Megan Kanka, there was a public outcry against the existing system and demand for introduction of community notification (Wright, 2014). There were a few states in the US that did require such community notification but the system was not universally applicable to all of the states in the US, which is the change that was made by what is popularly called as Megan’s Law (Wright, 2014). The changes made after the Megan’s Law is that there is a requirement of both registration of the sex offender as well as a community notification system which is applicable to all of the states (Wright, 2014).

In the UK, the sex offenders register became associated with public notification after the e Sarah Payne case but a full public disclosure of the kind that is followed in the US for certain cases was initially rejected in the UK on the grounds of public protection as well as lack of empirical evidence to support the Megan’s law and the unintended consequences of public disclosure (O'Sullivan, et al., 2016). However, certain pilot schemes have been undertaken in the UK to test the viability of a public disclosure system; notable among these is the pilot of the Child Sexual Offender Disclosure Scheme (CSODS) which can enable members of the public to make an enquiry about a person via the police about a named person, with whom the inquirer may be in contact with or have access to a child or children (O'Sullivan, et al., 2016). The system is not public notification in the same sense as the system followed in the US because instead of allowing any member of the public to have full access to the sex offenders’ details, the CSODS was meant to allow limited access via the police and only in the event that the subject of the enquiry meets certain criteria of risk, and has previous convictions for sexual offences against children (O'Sullivan, et al., 2016). Importantly, there has been a low rate of inquiry and disclosure associated with the CSODS as per the data maintained by the Association of Chief Police Officers (O'Sullivan, et al., 2016).

There is also the use of the statutory guidance or ‘Multi-agency public protection arrangements (MAPPA): Guidance’ in the UK (Ministry of Justice, National Offender Management Service, and HM Prison Service, 2014). The Guidance includes ViSOR, the secure database that holds details of MAPPA offenders and other aspects of information sharing, disclosure and risk assessment and the risk management plans.

Comparison between the US and the UK sex offender registration and notification/disclosure systems

Although the sex registration system is applicable in the UK as well, the system is different in practice from the one followed in the US in some important respects. Similar to the US, the UK also has a national law requiring registration of sex offenders. In the UK, Violent and Sex Offender Register (ViSOR) is maintained as a database of records of sex offenders. The requirement of registration is for those convicted of certain violent offences under the Sexual Offences Act 2003. Unlike the US, there is a requirement of registration only for those who are convicted of certain kinds of sexual offences. The registration system itself is very different from the one followed in the US, where the offender is required to register with the database and update the database whenever pertinent. In the UK, the offenders who are required to register have to do so with the police. The register itself is not made public unlike the US where details are available in the public domain. In the UK, the register is available only for the purpose of the monitoring of the sex offenders by the police, prisons and probation service after the offender’s release back into the community.

The crucial difference between the American and the English systems with reference to the sex offender registration system is that there is a requirement of community notification in the former and no such requirement for the English law. This needs to be explored further to critically appreciate how the two systems work in the context of criminology. Therefore, the difference between the sex offender registries in the UK and the US can also be considered in the context of access, that is, which parties are allowed to access the registry in these two countries. In the UK, the Violent and Sex Offender Register (ViSOR) can only be accessed by the police, National Probation System and the HM Prison Service personnel. A complete access to the public is not provided in the system that is followed in the UK and in this respect can be differentiated from the system that is followed in the US.

From the point of view of criminology, the justification for the sex offender registration system is based on the perspective of deterrence and recidivism. This was discussed in the section on theory above. However, evidence does not suggest that the public notification system that is followed in the US is effective in the context of deterrence or recidivism. On the contrary, there are studies that show negative impacts of public notification in the lives of the offenders and their families (Levenson & Tewksbury, 2009). In the US, one study utilized an online survey from 584 family members across the U.S. with regard to their experiences as family members of notified sex offenders and found that family members faced problems related to employment, financial hardships, housing disruption and even threats and harassment by neighbours because of the status as sex offender of someone in their family (Levenson & Tewksbury, 2009). The study pointed out that rather than avoiding recidivism, the public notification system had the unintended consequence of not allowing family members to support registered sex offenders in their efforts to avoid recidivism and successfully reintegrate into the society (Levenson & Tewksbury, 2009). In another study based in the US, the researchers found that while there is evidence to suggest that registration is beneficial to reduction of crime, notification is found to actually increase recidivism (Prescott & Rockoff, 2011). The researchers reported that there was evidence to suggest that registration reduces the frequency of reported sex offenses against local victims by keeping police informed about local sex offenders, but notification increases recidivism (Prescott & Rockoff, 2011). It may also be mentioned that the Office of Justice Programs in the US itself has noted that the sex offender registration and notification requirements have been implemented without taking into consideration any empirical evidence regarding their effectiveness (Office of Justice Programs, 2012). In the UK as well, there has been a criticism of the sex offender registration policy being drafted in a hurry just prior to the 1997 elections in the country (Thomas & Marshall, 2021). Therefore, there are gaps in the policy that need to be addressed as per Thomas and Marshall (2021).

An important criticism that is made against the registration system itself, which can be applied to both UK and the US is that it is focussed on criminal justice system response after offending has occurred, with a preventative focus to reduce further but because this system only targets offenders within or known to the system, there is limited scope for offence prevention (O'Sullivan, et al., 2016). Therefore, it may be noted that even with the aim of the sex offender registration system being to prevent crimes, the scope may only extend to those who are already within the system. Another criticism of the registration system, particularly in the US is made with reference to the broad nature of the kinds or types of offenders that can be included in the register with there being notifications even for men who men who urinated in public or were caught having sex in remote areas of public parks after dark (Lancaster, 2011). The criticism pertains to the all encompassing and non-nuanced nature of the registry in the US which does not take individual circumstances into consideration before requiring registry and notification (Lancaster, 2011). It may also be mentioned here that the registry in the US has also made public notifications of sex offenders who were minors and were caught experimenting with their peers (Human Rights Watch, 2013).

In the UK, the above criticism does not apply because not only does the UK not have a public disclosure system of the kind that is practiced in the US, there are only specific kinds of offences for which youth sex offenders will be registered and that too for a period of time that is half of that which is required for adult offenders who have committed the same crimes. However, there is a need to further improve the system in the UK as a study with the police participants have shown in the UK (McCartan, et al., 2018). This study found that while police officers were generally supportive of ViSOR and CSODS, they generally suggest that the system can be challenged due to the problems associated with logistics, practicalities, infrastructure, multi-agency collaboration and public understandings (McCartan, et al., 2018).

Finally, it may be noted that the system of registration that is followed in the UK is based on the premise of protection of public via the administrative authorities who have access to the registry and the seriousness of the punishment that is meted out to the convict of the sex offence determines the length of the period for which their details have to be maintained in the register (Thomas & Marshall, 2021). This is not the same that is seen in the US where public notification is aimed at allowing public protection via the public that has access to the register. Indeed, the US notification system was considered to be tough enough for the UK to not extradite an American citizen to the US who was to face trial for sexual offending because the High Court considered that to extradite would lead to European Convention of Human Rights (ECHR) violations of the individual (ullivan v The Government of the United States of America & Anor [2012] EWHC 1680, 2012).

Conclusion

Both the US and the UK have a system of sex offender registration, but only the US has a system of public notification. This is a crucial difference between the two systems which can also have implications for the recidivism motive of the policy. This essay has found that while registration can be useful in preventing crime and even deterring crime by the same individuals thus leading to deterrence as well as low recidivism, public notification system may actually be responsible for recidivism because of the unintended effects of this policy. Even in the context of registration, there is a difference between the UK and the US in that the former only requires registration for certain sex offences which are considered to be serious in nature with the period of registration also being linked to the sentence period of the offender. In the US, even those who have committed seemingly minor offences can get registered and notified for long and indefinite periods of time. Moreover, in the US even child offenders are subject to public notification requirements when they turn 18 years of age for offences that may be going back to the time when they were as young as 9 years of age. This is not seen in the system that is followed in the UK at this time. Therefore, to conclude it may be said that comparatively the US system is tougher with no evidence of deterrence and avoidance of recidivism. Looking for further insights on Dynamics in Police Force Progress Presentation? Click here.

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