I. Background

Child-on-Child Sexual Violence in the United States

Sexual violence is a serious problem in the United States. According to a US Department of Justice (DOJ) study, an estimated 125,910 rapes and sexual assaults occurred in the United States in 2009 (the most recent year for which data are available).[4] An estimated 24,930 of the victims were between the ages of 12 and 19 at the time of the assaults.[5] The DOJ study did not examine how many of these incidents involved adult or youth offenders.

While 24,930 incidents of sexual violence against children is a disturbing number, it may be an underestimate. Victim fear, shame, or loyalty to the abuser can each contribute to the underreporting of sexual violence.[6] For example, a study by the National Institute of Justice found that only one in five adult women rape victims (19 percent) reported their rapes to police.[7] Failure to disclose sexual abuse is also common among children.

There is evidence, however, that victims today—including child victims—are more likely to disclose abuse, at least to loved ones, than they once were. Dr. Marc Chaffin, an expert and professor of pediatrics at University of Oklahoma Health Sciences Center, told Human Rights Watch that recent studies suggest that “about half of child victims tell someone.”[8] While this does not necessarily mean more incidents are getting reported to police, it is clear that child victims are more likely to disclose abuse than in decades past.[9]

Historically, the reluctance or inability of survivors of abuse or their family members to report sexual assault crimes has contributed to under-enforcement of the law: the vast majority of sex crimes do not lead to arrests and convictions.[10] A study examining data from 1991 to 1996 found that sexual assaults on child victims were more likely to result in an arrest (29 percent) than were assaults on adults (22 percent), but assaults on children under age six resulted in an arrest in only 19 percent of the cases.[11]

For adults, the emotional and psychological consequences of sexual violence can be profound and enduring and include depression, anxiety, and post-traumatic stress disorder.[12] According to the American Psychological Association, children who have been sexually abused may suffer a range of short- and long-term problems, including depression, anxiety, eating disorders, guilt, fear, withdrawal, self-destructive behaviors, and sexual acting out.[13] This study did not differentiate between the experiences of victims who were abused by adults and those abused by other children. According to Dr. Marc Chaffin, who has studied the specific impacts on child victims of child-on-child sexual offenses,

The overarching summary of the research is this—there are a substantial number of victims who recover and are not highly affected beyond a short time. There is a middle group with moderate effects. And there is a group with severe and often lasting effects.[14]

In many cases, the trauma of child sexual abuse is made more complex because the abuse occurs within the family. Denise, a single mother of two boys, Troy (age 15) and Ted (age 12), recalled the day Ted confided in her that he had been sexually abused by Troy: “Ted explained that ‘he had been touched on his private parts’ by his older brother.”[15] Denise continued, “I felt like I had heard the worst thing a mother can hear. I felt confused and shocked. As I listened to Ted, I began feeling everything through him and seeing it through his eyes. I felt so deeply sad for what he had been through, and I battled with feelings of responsibility. What could I have done to prevent this? Why didn’t I see the signs?”[16] Denise immediately began getting help for both her sons and making sure they were both safe from repeating these behaviors. She stated that it,

[B]ecame clear the boys could not be left alone together. At first, it actually felt like things were getting worse not better, especially when Ted confided in me saying, “I lock my bedroom door at night,” as he described how he fears a visit from his brother…. I wish I could explain what it is like to be the parent of both a child who has been abusing and a child who has been victimized. The feelings are so mixed and confusing. I love both my sons, but at times I felt guilty and ashamed that I cared for Troy even though he had hurt Ted.[17]

Child sexual abuse is a complicated form of harm. The effect sexual violence can have on survivors, their family members, and their communities can be harrowing. After a sexual assault, victims may experience a wide range of emotions, such as sadness, anger, fear, shame, guilt, grief, or self-blame; and they may grow up to experience a variety of psychological, social, relationship, and physical difficulties.[18]Not only are victims left to cope with the very personal and intense after-effects of a sexual assault, but they also must deal with the tangible costs associated with the assault, including medical care, counseling, and potential lost wages.[19] In light of all of this, and given the potential consequences for child victims, ending sexual offenses against children is a legitimate priority. 

History of Sex Offender Registration and Notification Laws in the US

In part as a result of high-profile cases of sexual abuse in the late 1980s and 1990s, state and federal policymakers passed an array of registration, community notification, and residency restriction laws for individuals convicted of sex offenses.

• Registration refers to a set of procedures that offenders must follow to disclose information to law enforcement authorities and to periodically update or “register” that information so that it remains current.
• Community notification refers to systems by which information about registrants is transmitted to the public or portions of the public.
• Residency restriction laws refer to mostly state and local ordinances that limit registrants’ ability to live in or spend any time in specific locations (such as near a school).

Each state, US territory, and federally-recognized Indian Tribe now has its own set of sex offender registration, notification, and residency restriction laws. Overlaying this diversity is a series of federal laws.

Early Sex Offender Registration and Community Notification Laws

The first federal law addressing sex offender registration, the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act of 1994 (the “Wetterling Act”) established a national database of sex offenders and conditioned states’ receipt of federal anti-crime funds on state compliance with the act.[20] Specifically, it required states to create registries of offenders convicted of sexually violent offenses or crimes against children and to establish heightened registration requirements for highly dangerous sex offenders. States moved quickly to implement federal sex offender legislation, with a majority passing notification and registration statutes for adult sex offenders between 1994 and 1996.[21]

Congress passed its first community notification law in 1996 in response to the abduction and murder of seven-year-old New Jersey resident Megan Kanka.[22] Under Megan’s Law, community notification requirements applied only to individuals identified as “potentially dangerous sex offenders.”[23] Community notification systems proliferated rapidly through a series of amendments to Megan’s Law. Some form of community notification for adult sex offenders has been present in all 50 states and the District of Columbia since 1996.

The Lychner Act, passed in 1996, amended the federal community notification laws, providing for a national database to track sex offenders and subjecting certain offenders to lifetime registration and notification requirements.[24] Both of these laws have been superseded by the 2006 Adam Walsh Act (discussed below).[25]

Incorporation of Youth Sex Offenders in Registration and Notification Laws

When first adopted, federal registration and notification laws neither required nor prohibited inclusion of persons convicted of sex offenses as children (youth sex offenders). But by the mid-1990s, many state sex offender registration laws were drafted to include children adjudicated delinquent of sex offenses as well as children tried and convicted of sex offenses in adult court. The resulting policies swept youth sex offenders into a system created to regulate the post-conviction lives of adult sex offenders.

Youth sex offenders were caught at the convergence of two increasingly harsh “tough on crime” policy agendas: one targeting persons convicted of sexual offenses, and the other targeting youth accused of violent offenses, who were often portrayed at the time as “superpredators”—a notion that has since been discredited.[26] The overheated rhetoric surrounding the issue scared the public, and politicians responded, including with increasingly broad laws affecting youth sex offenders. In an effort to protect children from sexual assault and hold sex offenders accountable, lawmakers failed to fully consider that some of the sex offenders they were targeting were themselves children, in need of policy responses tailored to their specific needs and circumstances.[27]

Today, federal law and the laws of all 50 states require adults to register with law enforcement. Eleven states and the District of Columbia do not register any child offenders adjudicated delinquent in juvenile court. However, these 12 jurisdictions do require registration for children convicted of sex offenses in adult court.[28] Thirty-eight states register both children convicted of sex offenses in adult court and those adjudicated in the juvenile system.[29]

State notification laws establish public access to registry information, primarily by mandating the creation of online registries that provide a former offender’s criminal history, current photograph, current address, and other information such as place of employment. In many states, everyone who is required to register is included on the online registry. In the 50 states and the District of Columbia, adults and children convicted in criminal court are generally subject to public notification, meaning that these individuals are included on the online registry. Children adjudicated delinquent in juvenile court are subject to the same public notification as adults in 27 states, allowing for the disclosure of child offenders’ private information to the public.[30] 

A growing number of states and municipalities have also prohibited registered offenders from living within a designated distance (typically 500 to 2,500 feet) of places where children gather, such as schools, playgrounds, and daycare centers.

The Adam Walsh Act’s SORNA

In an effort to standardize the vast and growing number of state sex offender registration systems, Congress passed the Adam Walsh Child Protection and Safety Act in 2006.[31] Title I of the Adam Walsh Act, the Sex Offender Registration and Notification Act (SORNA), provides a set of federal guidelines that further expands the breadth of sex offender registration and notification in the 50 states, the District of Columbia, the five US territories, and federally-recognized tribal territories. The Adam Walsh Act did not, in its initial draft, specifically address the situation of child offenders. However, an amendment known as the Amie Zyla Provision expanded the scope of the act to include certain juvenile court adjudications in the act’s definition of “conviction” (children convicted in adult court already fell within the definition).[32]  

SORNA made several broad changes to existing federal guidelines on sex offender registration that include, but are not limited to:

• Mandating that children register, if prosecuted and convicted as adults or adjudicated delinquent in family court for a sex offense comparable or more serious than “aggravated sexual abuse or sexual abuse.”[33]
• Establishing a new federal and state criminal offense of “failure to register,” punishable by a term of imprisonment.[34]
• Requiring registration for offenses that may not be considered sexual offenses in some jurisdictions, such as indecent exposure, kidnapping, false imprisonment of a child, public urination, rape, incest, indecency with a child by touching, and possession of child pornography.[35]
• Requiring jurisdictions to reclassify the risk level of each sex offender based solely on the crime of conviction or adjudication, with no reference to individualized risk assessment.[36]

To comply with SORNA, jurisdictions must also require registered offenders to keep their information current in each jurisdiction in which they reside, work, or attend school.[37] Jurisdictions that fail to enact the SORNA guidelines risk losing 10 percent of their Edward Byrne Memorial Justice Assistance federal funding.[38]

After the federal government granted several extensions, the deadline to comply with SORNA was July 2011. Five years after the act was signed into law, no jurisdiction has “completely implemented” SORNA, and only 13 have “substantially implemented” the law. On the deadline, several states signaled that they still were unable to implement SORNA.[39] According to a 2013 US Government Accountability Office (GAO) report on the status of SORNA implementation, as of November 2012, 37 of 56 jurisdictions had submitted complete implementation packages for review, and the US Department of Justice’s (DOJ) Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) office had determined that 19 of those jurisdictions (16 states and 3 territories) had substantially implemented SORNA and another 17 had not.[40] The 16 states deemed by the DOJ to have substantially implemented SORNA were Alabama, Delaware, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, Ohio, Pennsylvania, South Carolina, South Dakota, Tennessee, and Wyoming.[41]

An Overbroad Policy of Questionable Effectiveness

Throughout the United States, sex offender registries include offenders convicted for a range of acts, from offensive or vulgar behavior to heinous crimes. Registries create the impression that neighborhoods are thick with recidivist sexual predators, making it impossible for residents, including parents, to discern who actually is dangerous.[42] Sex-offender registries now include not only persons who committed sexually violent offenses or crimes such as kidnapping or false imprisonment of a minor, but also people who have committed offenses like public urination, indecent exposure (such as streaking across a college campus), and other more relatively innocuous offenses. Many people assume that anyone listed on the sex offender registry must be a rapist or a child molester. But most states spread the net much more widely.[43]

Sex offender registration schemes were initially designed to help police monitor the “usual suspects”; that is, to capture the names and addresses of previously convicted adult sex offenders on a list, which could be referred to whenever a new offense was committed. In theory, this was a well-intentioned method to protect children and communities from further instances of sexual assault. In reality, this policy was based on a misconception: that everyone found guilty of a sex offense is a recidivist pedophile. However, according to the National Center on Sexual Behavior of Youth, “most adolescents are not sexual predators nor do they meet the accepted criteria for pedophilia.”[44]

Individuals who commit sexual offenses are not all the same. A one-size-fits-all approach to sex offender registration does not contribute to public safety, especially since, as described further below, the most dangerous offenders are often supervised in the same way as very low-risk offenders who are not likely to commit new sex offenses.

A 2008 report from the Texas Department of Public Safety revealed that the number of registered sex offenders in Texas more than tripled between 1999 and 2008. The 2008 figure was 54,000 offenders, including nearly 7,500 who were placed on the registry for offenses committed as children.[45] Ray Allen, a former chair of the Texas House Corrections Committee who once helped push the tougher sex offender registration bills into law, admitted that he and his colleagues went too far. “We cast the net widely to make sure we got all the sex offenders … it turns out that really only a small percentage of people convicted of sex offenses pose a true danger to the public.”[46]

Does the Registry Prevent Sex Offenses?

Despite the massive growth in the number of registered sex offenders, studies of states that have implemented registration requirements are inconclusive as to whether the registries have any effect on the incidence of reported sex offenses. One study of 10 states with registries concluded that “the results do not offer a clear unidirectional conclusion as to whether sex offender notification laws prevent rapes.”[47] A study in New Jersey found that sex offense rates have been on a consistent downward trend since 1985, with the data showing that the greatest rate of decline in sex offending occurred prior to 1994 (the year registration laws were passed) and the least rate of decline occurred after 1995 (the year registration laws were implemented).[48] There are at least three flaws that help to explain the ineffectiveness of sex offender registries in deterring crime.

First, sex offender registries are focused on preventing recidivism, when instead the focus should be on deterring the first offense from ever happening.[49] The focus on recidivism is misguided because sex offenders are among the least likely to reoffend. Individuals labeled as “sex offenders” have extremely low recidivism rates when compared to persons convicted of robbery, non-sexual assault, burglary, larceny, motor vehicle theft, fraud, drug offenses, and public order offenses.[50] The only type of offense with lower recidivism rates is homicide.[51]

As discussed in detail in the following chapter, youth offenders, including youth sex offenders, have even lower rates of recidivism than adults. The emotion provoked by the sexual abuse of a child is powerful—powerful enough to make many overlook the embedded false presumptions and misperceptions about risks of reoffending, especially with regard to children who have committed sexual offenses against other children.[52] But research indicates that these terrible crimes are extremely unlikely to be committed by an individual who was labeled a sex offender as a child.

Second, sex offender registration overburdens law enforcement. Detective Bob Shilling, a 29-year decorated veteran of the Seattle Police Department who spent 20 years as a detective in the Special Victim’s Unit, Sex and Kidnapping Offender Detail, for the Seattle Police, explained how his officers were required to make home visits to registered sex offenders. He stated that focusing attention and resources on an overly broad group of ex-offenders detracts attention from the smaller number of sexually violent offenses that occur, leaving communities vulnerable to sexual abuse, creating a false sense of security, and exhausting valuable resources by tracking the “wrong offenders”—that is, individuals not likely to ever reoffend sexually. The detective said, “the most recent laws dilute the effectiveness of the registry as a public safety tool, by flooding it with thousands of low risk offenders like children, the vast majority of whom will never commit another sex offense.”[53]

Third, registration fails to target resources where they are most needed. Federal guidelines adopted under SORNA risk worsening the problem by mandating that states eliminate the use of risk assessment tools to help identify those offenders who are likely to reoffend. Instead, as noted above, the guidelines require states to use “crime of conviction” as the sole means to classify offenders. Detective Schilling described the focus on crime of conviction “inherently flawed,” because sex offenders differ greatly in their level of impulsiveness, persistence, risk to the community, and desire to change their deviant behavior. Assigning sex offender tiers based on crime of conviction provides very little information about who a sex offender is and what his or her risk for reoffense may be.[54] All of these factors add more nonviolent, lower risk offenders to the registry—including youth offenders. While the sex offender database grows exponentially, funding for monitoring sex offenders is on the decline.[55]

A 2011 review of state sex offender registration legislation applied to child offenders found that only a small number of states were registering child sex offenders based solely upon the type of offense. [56] Most states that included child offenders in pre-SORNA registration schemes also designed safeguards to protect them, such as judicial discretion, consideration of individual circumstances, assessment of risk, or early termination of juvenile registration. The authors of the survey characterized these findings as noteworthy because “the need to comply with SORNA is pushing states in the opposite direction.” [57]