Close X

California Is Right to Curb the Sex Offender Registry

Posted by Fay Arfa | Oct 13, 2017 | 0 Comments

Say what you want about Governor Jerry Brown, but never say he's not brave. He just signed a law that could eventually purge 90 percent of the names off of California's lifetime registry for sex offenders.

I expect that he, and the legislators who passed it, will be subjected to the withering outrage that accompanies any action or statement, however mild or correct, that seems “soft” on sex offenders. I once wrote a column suggesting that pedophiles who are attracted to children but do not act on their impulses need more support from society to help keep them on the straight and narrow. Of course I was roundly scorned as being, at best, a woolly-headed liberal with a permanently broken moral compass, and at worst, probably a pedophile myself.

This is how we have ended up with the absurdities of the sex offender registries. In which teenaged boys who slept with their underage girlfriends can be required to spend years of their life (perhaps all the years of their life), fending off revolted stares from neighbors who think they're child molesters. In which men have to sleep under bridgesbecause there is no abode in the county that is far enough from a child for them to legally take residence. In which work, marriage, travel or even a roof over your head become near-impossible dreams for anyone ever convicted of any sexual offense — and you may even be liable for these penalties if you are accused of exploiting … yourself.

The results can occasionally be not only absurd, but also tragic. At 19, William Elliott had sex with his then-girlfriend, who was a few weeks shy of her 16th birthday. Five years later he was shot to death by a pedophile-hunting Canadian gunman who found his name on Maine's sex offender registry.

In this context, California's step back is rather modest; they are allowing sex offenders to be removed from the registry 10 or 20 years after they serve their sentence, provided they haven't committed another serious crime in the meantime. What's remarkable about the legislation is that it happened at all; it stalled for years, because lawmakers were afraid of being seen as soft on crime.

America needs to rethink its sex offender registries, and whether they're really the best way to protect children from abuse. And our knee-jerk reaction to being “soft on child abusers” makes doing so extremely difficult.

Proposing to ratchet up our laws governing sex offenders is an easy win for politicians; there is no donor base or powerful activist group organized to defend sex offenders. But should the law turn out to produce bizarre unintended consequences — such as people forced to live under bridges — any attempt to reduce those consequences will end up framed as thinking child abuse isn't a big deal.

For the record: I think child abuse is a big deal. We should identify child abusers, we should punish them, and we should do our best to protect children from them. But it's not clear to me that sex offender registries, especially in the overbroad way they're often implemented, are the best way to achieve those ends.

Take William Elliott. A 19-year-old who dates a girl three or four years younger than himself may be unwise. He may even be exploiting the relative difference in their maturity. But is he a permanent danger to society? Or is he quite likely to grow up and settle down with someone pretty close to his own age? 1

I'd suggest that Elliott should never have been registered for any length of time. Nor is his case unique. As an article in National Affairs noted last year:

While some people on the registries certainly are public threats, many are not. Journalist and lawyer Chanakya Sethi found that 12 states require registration for urination in public and six states do for prostitution-related offenses. Teenagers who have consensual sex with other teenagers can be forced to register (sometimes for life) in 29 states. Numerous states permit and some even require registration for kidnapping, even where it has no sexual element. Consensual incestuous sex between adults (while deeply abnormal) can require registration, even though it presents no public danger.

Most disturbingly, about 40 states put juveniles on sex-offender registries, and Nicole Pittman of Impact Justice has found that six states can require juveniles to register for life. Indeed, the federal Adam Walsh Act created some incentives for doing exactly that. At least 5% and perhaps as many as a quarter of all people on the registries around the country are there for offenses for which they were tried as juveniles.

Of course, some teenagers who have sex with younger teenagers may grow up to be creepy men who are courting 15-year-old girls not only while teenagers, but also at ages 20, 40 and 70. Some men who urinate in public may go on to commit grosser crimes. But the same could be said for reckless drivers, yet we do not require them to register with the local police and warn the neighbors that they're a danger to the community.

There are some serial offenders who do need careful watching. And the registry does seem to have some effect on the number of crimes, possibly because fear of being registered acts as a powerful deterrent. But the tendency to use that deterrent indiscriminately may actually be counterproductive; as National Affairs notes, “the presence of non-violent and non-threatening juveniles on sex-offender registries contributes to registry ‘clutter' that makes it difficult for police and social workers to monitor the truly dangerous sex offenders.” This, the article argues, is how Phillip Garrido, a registered sex offender, nonetheless managed to hold Jaycee Dugard prisoner in his backyard for 18 years. It is also apparently why California law enforcement agencies were among the backers of its kinder, gentler registry law.

California's retreat from lifetime registry is a good first step. But it is only a step toward the system we need: narrower, less fearful, and better tailored to actually keeping children safe.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

1. This is, of course, a relative distance; as it happens, there is a much larger age gap between myself and my husband than there was between Elliot and his girlfriend. The difference is that we married when he was 27, not 15.

To contact the author of this story:
Megan McArdle at [email protected]

To contact the editor responsible for this story:
Philip Gray at [email protected]

It's overly applied, unintentionally harsh and ultimately self-defeating.

By Megan McArdle / October 10, 2017, 3:57 PM CDT

About the Author

Fay Arfa

Fay Arfa has the distinction of being Certified as a Specialist in two separate areas of law – Criminal Law as well as Appellate Law – by the California State Bar, Board of Specialization. The National Board of Trial Advocacy has also awarded her a board Certification in Criminal Trial Advocacy. ...


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Board Certifications

Contact Us Today

Fay Arfa is committed to answering your questions about Trials, Appeals, Habeas Corpus, State Crimes, Federal Crimes, and Sex Crimes law issues in California.

We offer a free telephone consultation and we'll gladly discuss your case with you at your convenience. Contact us today to schedule an appointment.