VIII. Human Rights and Registration of Youth Sex Offenders

International human rights law requires all governments to protect people within their jurisdiction from violence, including by deterring crimes such as sex offenses.[344] While at least six other countries—Australia, Canada, France, Ireland, South Africa, and the United Kingdom—have implemented sex offender registration, they have done so in a more restricted manner, in order to more closely conform with international human rights standards. Thus, in these six countries there are often no public notification or residency requirements and the inclusion of youth offenders is heavily circumscribed.

The important duty of government to protect persons from harm has undoubtedly inspired the creation of sex offender registration schemes in the United States. However, the onerous nature of the schemes and their specific application to youth offenders raise serious questions under human rights law.

The Child’s Right to Special Treatment

Conviction for even a very serious sex offense does not extinguish a child’s claim to just treatment at the hands of government, nor does it free a government to ignore fundamental rights when imposing punishment or “collateral” obligations such as registration.

International law recognizes that juvenile offenders require special protection. The International Covenant on Civil and Political Rights (ICCPR), to which the United States became a party in 1992, specifically acknowledges the need for special treatment of children in the criminal justice system and emphasizes the importance of their rehabilitation.[345] Article 10(3) requires the separation of youth offenders from adults and the provision of treatment appropriate to their age and legal status. Article 14(4), which was co-sponsored by the United States,[346] mandates that criminal procedures for children “take account of the age and the desirability of promoting their rehabilitation.”[347] The ICCPR requires states to respond to the offenses children commit by focusing on positive measures and education rather than punishment.[348]

Those in favor of youth sex offender registration often argue that the requirements—whether registration alone, or registration in combination with community notification and residency restrictions—are distinguishable from criminal punishment. Since registration is imposed only after a child completes his or her criminal sentence, they argue, it is at most a collateral consequence of punishment and as such is distinct from the original punishment. However, the international human rights law requirement that children be treated in a manner that takes into account their age and particular vulnerabilities does not hinge upon whether government is imposing a criminal punishment or instituting other types of administrative procedures that constitute “collateral consequences.” In all cases, juveniles must be treated differently.

In the United States, many sex offender registration laws at both the state and federal levels treat youth offenders no differently from adults. This is true of youth offenders subject to the jurisdiction of adult courts, but also of many children adjudicated delinquent in juvenile courts. When children and adults are subjected to exactly the same procedures and laws, the United States violates provisions of the ICCPR requiring special measures for children. In order to comply with its obligations under international human rights law, the United States should abolish sex offender registration schemes that are not specifically tailored to address the situation of youth offenders.

Recent cases in the US Supreme Court raise serious questions under US constitutional law about any scheme in which the differences between youth and adults are not taken into account. In a case abolishing the death penalty for juveniles, the court stated, “From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.”[349] Similarly, the court has given weight to:

Developments in psychology and brain science [that] continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence. Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of “irretrievably depraved character” than are the actions of adults.[350]

Moreover, in abolishing the mandatory imposition of life without parole sentences on juveniles, the US Supreme Court based its decision on the fact that the child’s status cannot properly be weighed:

By removing youth from the balance — by subjecting a juvenile to the same life-without-parole sentence applicable to an adult — these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.[351]

In a recent opinion outside of the sentencing realm, moreover, the Supreme Court recognized that children’s perception is different from that of adults and that police officers must take into account the age of children when deciding whether they are in custody and need to be informed of their rights under the 1966 case Miranda v. Arizona. The Supreme Court stated, “‘[o]ur history is replete with laws and judicial recognition’ that children cannot be viewed simply as miniature adults. We see no justification for taking a different course here.”[352]

Disproportionate Infringement on Other Rights

Other human rights of children threatened by youth sex offender registration include the rights to protection from harm, family unity, education, health and well-being, and freedom of movement. None of these rights are absolute. But laws that infringe upon these rights must be necessary to serve a legitimate public interest, the relationship between the interest and the means chosen to advance it must be a close one, and the laws must be the least restrictive possible. For example, as the United Nations (UN) Human Rights Committee, which assesses compliance with the ICCPR, has stated with regard to limiting the right to movement,

[I]t is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.[353]

If a state restricts a right, it can only do so to the extent consistent with “the provisions, aims, and objectives of the Covenant” and only to the extent “reasonable in the particular circumstances.”[354] Reasonableness is achieved if the restriction is “both proportional to the end sought and necessary in the circumstances.”[355]

Some of the most fundamental rights of children (and adults who are former youth offenders) are put at risk by sex offender registration laws. Given the low recidivism rates of youth sex offenders, it is doubtful whether registration truly furthers the government’s objective of protecting future victims from new sex offenses. Therefore, the infringements on rights imposed by these laws appear to be disproportionate to their purpose.

The Approach of Other Jurisdictions

The US is not alone in implementing registration systems for sex offenders. At least six other countries (Australia, Canada, France, Ireland, South Africa, United Kingdom) have sex offender registries, either for perpetrators of all sex offenses or only offenses in which the victim was a child, and others are contemplating establishing registries. [356] However the US is alone in the scope of the registries, in particular the public and easily accessible nature of the information on the registries, the onerous conditions imposed on registrants, the imposition of residency restrictions, and the broad application of many of these aspects to youth sex offenders.

Sex offender registries in other countries have come under judicial challenge, and courts have found the more circumscribed registration requirements compatible with protection for human rights, only in so far as each scheme strikes the appropriate balance between the rights of the individual on a register and the public safety interest that the registries are designed to meet. The US sex offender registration schemes fail to meet these standards.

The European Court of Human Rights (ECtHR) has acknowledged that registries pursue legitimate aims (such as the prevention of crime and the protection of the rights and freedoms of others) and are consistent with states’ duty to protect individuals from grave forms of violence.[357] In finding that conditions of registration in both the UK and France imposed a proportionate constraint on offenders’ private and family lives, the Court set down clear criteria for assessing proportionality. [358] For example, in its examination of the French law the Court noted that sex offenders could appeal to the prosecutor against their automatic inclusion on the registry, then to an appellate chamber, and then to the president of the investigating chamber. The Court said,

[T]his judicial procedure for removing the information ensures independent review of the justification for the retention of the information according to defined criteria and provides adequate and sufficient safeguards in relation to respect for private life, with regard to the seriousness of the offences justifying registration on the sex offenders’ register.[359]

The criteria the European Court set out was relied on by the UK Supreme Court to strike down a provision in UK law requiring lifetime registration for a person convicted of an offense carrying a sentence of 30 months or more imprisonment.[360] In this case one of the registrants, F, was a youth sex offender, who had been convicted at age 11 of the rape of a younger boy, and was required to register for life. The UK Supreme Court endorsed the conclusion of the Court of Appeal that,

“[A]n offender was, as a matter of principle, entitled to have the question of whether the notification requirements continued to serve a legitimate purpose determined on a review. This entitlement was even stronger in the case of child offenders because of the fact that children change as they mature.” (emphasis added)[361]

Relying directly on ECHR standards on safeguarding the right to privacy, the UK Supreme Court ruled that the life-long notification requirement was a disproportionate interference with sex offenders’ right to private and family life, because it was automatic without any opportunity for review.[362] The European Court has expressly endorsed the UK Supreme Court’s assessment. [363] The UK High Court has also struck down on privacy grounds other procedures for disclosing information about offenders.[364]


Protection from Violence

Two categories of children suffer harm as a result of sexual offenses and the sex offender registration laws described in this report. The most obvious category is the child victims of sexual assault, who have rights to protection from harm and to redress for the harms they have suffered.

However, youth sex offenders are also entitled to protection from harm, including from vigilante violence. The United States has signed and ratified the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Convention against Torture) and the International Covenant on Civil and Political Rights (ICCPR). Each of these treaties prohibits cruel, inhuman, or degrading treatment or punishment[365] and includes requirements that the state act to prevent acts of violence directed at anyone—adults and children—committed by private actors.[366]

Protection from violence, moreover, is an essential component in securing other human rights including the right to physical integrity. Additionally, the harassment and violence some youth offenders endure as a result of state sex offender registries and related policies may end up depriving them of their right to live together with their family, or to an education on equal terms with their peers. Such harassment and violence may also have serious mental health consequences and infringe upon the right of youth to the enjoyment of the highest attainable standard of health.[367]

Privacy and Family Unity

Sex offender registration laws interfere with a child’s right to privacy, which international human rights law recognizes as more robust than an adult’s right to privacy. Even in instances in which registration is not explicitly combined with community notification requirements, the reproduction of such records by public and private actors in a variety of ways and locations—particularly in our electronic age—makes it nearly impossible for the heightened privacy rights of children to be respected.

The Convention on the Rights of the Child (CRC), which the United States has signed but not ratified,[368] and the ICCPR both prohibit arbitrary or unlawful interference with a child’s privacy.[369] This prohibition—along with other international legal guarantees of treatment with dignity, respect, and protection from cruel, inhuman, or degrading treatment—underlie the minimum standards for privacy set forth in the UN Standard Minimum Rules for the Administration of Juvenile Justice (the “Beijing Rules”). These minimum standards require that every child’s privacy be respected at all stages of the juvenile justice process, including with regard to dissemination of a youth offender’s criminal record.[370]

Some youth offenders in the US have challenged mandatory registration and community notification laws on the basis that those laws open their records to public view, whereas existing law has generally permitted children to keep their juvenile records confidential or have them expunged. US federal courts have recognized juveniles’ heightened “liberty interest” in the confidentiality of their records but have yet to overturn sex offender registration or notification laws on that basis.[371]

The right to family unity finds articulation in numerous human rights treaties.[372] The concept is also incorporated into the domestic law of the United States. For example, in the context of custody rights for grandparents, the US Supreme Court has held that the “right to live together as a family” is an important right deserving constitutional protection, and an “enduring American tradition.”[373]

In some instances, however, the youth offender’s strong right to family unity is subordinated to the best interests of his or her siblings, who the state assumes would be at risk if the youth offender is allowed to reside with the family. Cases outlined in this report raise questions about whether government is striking the right balance even in these cases.

Education, Health, Well-being, and Freedom of Movement

The Universal Declaration of Human Rights states that everyone has a right to education, to freedom of movement and residence within the borders of their country, and to a standard of living adequate for health and well-being, including housing.[374] Sex offender registration laws can interfere with all of these rights. Residency restrictions and the contradictions between state laws often interfere with registrants’ ability to move residences, including between states within the US. The restrictions also have a profound impact on children’s ability to secure housing, and thus can lead to homelessness.

Sex offender registration, notification, and residency restrictions also have the effect of interfering with children’s access to education. When children are unable to attend school because they are banned from going near or entering school buildings, or when other restrictions on their residency or freedom of movement make it impossible for them to maintain a home and thus the stability to attend school, their access to education is curtailed.

Registration and community notification laws also have a deleterious impact on registrants’ standard of living because they can interfere with access to employment. State and local laws often ban a registered youth offender from working anywhere near children—so registered teens cannot seek jobs at the local mall, fast food restaurants, camps, and recreational centers. Current laws require registrants to provide their employers’ business name and address to be posted on the internet—further deterring employers from hiring them. Finally, the shaming and publicity associated with community notification can negatively impact registrants’ mental health.