VII. Sex Offender Laws and Child Offenders
Teenagers and even young children who engage in certain sex-based conduct may find themselves subject to sex offender registration, community notification, and residency restriction laws. Some children are on registries because they committed serious sex offenses, such as forcibly raping a much younger child. Other children are labeled sex offenders for such non-coercive or nonviolent and age-appropriate activities as playing doctor, youthful pranks such as exposing ones buttocks, and non-coercive teen sex.
Subjecting children to sex offender laws originally developed for adult offenders is both unnecessary from a public safety perspective and harmful to the child.
The juvenile justice system acknowledges that children who break the law should be treated differently than adults, with a greater emphasis on rehabilitation, and that forcing them to carry the burden of a public criminal record for childhood mistakes serves neither them nor the community. The records of children caught up in the juvenile justice system can be expunged or sealed, or entered into the public record as an adjudication when the offender reaches the age of majority.222 State sex offender registration laws, however, can trump juvenile offender laws. Children thus find themselves subject to the shame and stigma of being identified as sex offenders on online registries, in some cases for the rest of their lives. For example, Kevin A. was adjudicated at age 12 for performing a sex act on a child under 10. He told a journalist, I was at school, at lunchtime, and one my best friends came up to me and asked me [about my name being found on the online sex offender registry after doing a Google search]. It sort of hit me off balance. It just gave me a feeling of I dont want to be there, knowing they know what I did wrong.223
Every state requires children convicted in adult court of certain kinds of sex crimes to register as sex offenders. Thirty-two states include in their online registriessometimes for lifeyouthful offenders who were convicted of specified offenses, regardless of whether they were adjudicated in adult or juvenile courts.224 The Adam Walsh Act requires all states to include in their online registries offenders who were 14 or older at the time they committed specified offenses, or risk the loss of federal funding for law enforcement resources.225 Child offenders are not exempt from state and municipal residency restrictions; even while children they can be prohibited from living with their families in restricted areas.
Children as Sex Offenders
When he was 12 years old, Paul L. performed oral sex on his six-year-old cousin.226 Paul pled guilty in adult court to one count of criminal sexual conduct with a child under 13. Paul has been through an intensive sex offender treatment program. He is in group therapy and is in individual counseling. Pauls mother told Human Rights Watch that Paul is required to register with law enforcement for 25 years, although he is not subject to community notification. Still, the ordeal has had a significant effect on Paul. At 15, he is, in his mothers words, terrified to date, because, as he told me, Mom, I must be a monster. No girl should want to be around me. Looking at the proliferation of residency restriction laws around the country, Pauls mother is also concerned about the future. I am worried that if the state that says sex offenders cant be in certain places where children gather, that my child, who is technically a sex offender who molested a child, will no longer be able to go to school, or play with his friends, or go to church.
The National Center on Sexual Behavior of Youth, a program of the Office of Juvenile Justice Programs, reports that adolescent sex offenders like Paul account for approximately one-third of all reported sex offenses against children.227 According to the Bureau of Justice Statistics, 23 percent of all sexual assault offenders were under age 18 at the time of the offense. About 3.7 percent were under the age of 12. Indeed, a detailed profile of offenders in sexual assault crimes shows that the single age with the greatest number of offenders from the perspective of law enforcement was age 14.228
Forty percent of the offenders against very young children (under the age of six) were themselves children; a similar proportion (39 percent) of offenders whose victims were age six to 11 were children.229
Many sex offenses committed by children resemble the many types of delinquent activities that the juvenile justice system is designed (in theory, if not always in practice) to enable teenagers to outgrow.230 Most child sex offenders do not engage in aggressive or violent behavior. In a study of children arrested for committing sexual offenses, 59 percent of the offenses were categorized as indecent liberties (touching or fondling) and 27 percent as rape. The rest were arrested for what were described as non-contact offenses (public exposure).231 In rape cases where the offender is under 18, the victim is likely to have been the same age as the perpetrator or older.232
Human Rights Watch spoke with a young woman, Sharon D., now 23, who was convicted in Michigan of fondling her sister when Sharon was 10 and her sister was four. I didnt really understand sex then, or what it meant to be sexually appropriate with someone, to respect their boundaries. I made a mistake, but it was a childs mistake, not an adults mistake, and I think the distinction matters.233
A number of studies cite nonsexual problems as the biggest factor behind the commission of coercive, violent, or other serious sex crimes by child offenders.234 According to the Association for the Treatment of Sexual Abusers, poor social competency skills and deficits in self-esteem can best explain sexual deviance in children, rather than paraphilic interests and psychopathic characteristics that are more common in adult offenders. There is little evidence that these youths engage in acts of sexual penetration for the same reasons as their adult counterparts.235 The problems child sex offenders have that may have been a factor in their sex offending are frequently ones that are quite amenable to treatment, for example, conduct disorders, depression, and learning disabilities.236 Mental health professionals who specialize in the treatment of children are hopeful about the prospects for success in treating child sex offenders and the possibility treatment offers for reducing reoffense.237
There is relatively little research on recidivism by child sex offenders, either while they are still under the age of 18 or after they are deemed adults under the law. The research that exists supports the views of mental health treatment providers that normal development wins out most of the time for these kids.238
Recent studies reveal low recidivism rates for child sex offenders. The Texas Youth Commission (TYC) followed a group of 72 young offenders who had committed violent sex crimes.239 Three years after release from the TYC back to the community, only three (4.2 percent) had been rearrested for a sexual offense.240
An analysis of the reoffense rates of 300 male sex offenders from around the country who committed sex offenses when they were children found that, in a follow-up period of three to six years after they were released from custody, only 13 of the 300 (4.3 percent) had committed another sex offense.241
A study of 204 male child sex offenders and 41 female child sex offenders in Philadelphia found that one in 10 of the boys committed another sex offense within eight years of their 18th birthday. None of the female offenders committed another sex offense in the same period.242 The researchers also found that having committed a sex offense as a juvenile was not a particularly strong predictor of committing a sex offense as an adult; indeed, boys with long (five or more) contacts with the police that did not involve sex offenses were twice as likely to commit sex offenses as adults than boys who had committed sex offenses but had fewer than five police contacts.243
Similar results showed up in a study of 47 male child sex offenders from Racine, Wisconsin: 8.5 percent of them committed a sex offense within five to 12 years after their 18th birthday, compared with 6.2 percent of males with any non-sex juvenile contact.244 The study also found that a lengthy record of non-sex juvenile offenses was a better predictor of committing a sex offense as an adult than a record of a single juvenile sex offense.245
Examination of adult sex offender records in Philadelphia and Racine also revealed that few adult sex offenders had been convicted of sex offenses as children. In Philadelphia, only 8 percent of adult sex offenders had been juvenile sex offenders.246 In Racine the figure was 4 percent.247 Using juvenile sex crime records to predict who would become adult sex offenders would miss 92 percent to 96 percent of all adult male sex offenders.248 These findings contradict the idea that requiring juveniles to register as sex offenders at all, much less for decades or a lifetime, makes a meaningful contribution to public safety.
Jim T.s story249
As a mother, if we were talking about a true child molester, I may want to
know these things, but we are talking about someone who made a mistake
when he was a child. Jims story is like a nightmare, where all the terrible
things in the world, it all collides together.
Nina T., Jims mother
When he was 15, Jim T. was convicted of molesting his younger sister starting when she was six and he was 10. Jim was accused of touching his sisters vagina multiple times, and forcing her to touch his penis multiple times. Jim was tried as an adult, convicted, and spent three years in a Maricopa County, Arizona jail, where he was assaulted on a number of occasions. He was released when he was 18. Jim was not able to participate in his high school graduation, so when he was released from jail, his parents bought a graduation cap and gown, and took a picture of Jim on the day he received his G.E.D. We call it our fake graduation day picture. Looking at it, you would not guess all the pain surrounding this time in our lives.
Jim is subject to community notification for life. He registers every 90 days, and each time he registers with the law enforcement officials, they, according to Jims mother, go door-to-door, put a flyer and tape it to his neighbors door, and do this for a two-mile radius. We live a mile-and-a-half from Jim, so we are notified. On the flyers, they keep his age the same [currentmeaning that he is now listed as age 20; his victim is listed as her age at the time of the abuse], and publish the vehicle he drives.
Jim lives in a small home his parents bought him. According to his mother, He never goes outside, he never opens his shutters. He is horrified that his picture is posted in his neighborhood. He is horrified that his neighbors think he is a baby rapist.
Jims mother says that he has been incarcerated three times for violating parole, but for things that have nothing to do with endangering the communityhe was late to work, he was at a nursing home visiting his grandfather, and he was on a college campus.
Jim works in construction, because, through a friend, his mother was able to explain his situation to the company manager. The manager continues to employ Jim, despite his arrests.
Jims mother says, And yet, at the end of the day, even with a house and a job, Jim will talk to us at times about ending it allcommitting suicide. I dont think he will, but, you never know.
Consensual Teenage Sex
Some of the sexual behaviors by youth that lead to a sex offense conviction and the application of sex offender laws do not involve the sort of acts or intent normally associated with criminal offenses. Most child behavior experts agree that sexual experimentation is a normal part of a young persons development.250 Some of the youthful offenders who are currently required to register as sex offenders were exploring their sexuality, or engaging in other typical adolescent behavior such as genital play or consensual sexual intercourse.
According to a survey conducted by the US Department of Health and Welfare, by age 14, more than one-third of the surveys respondents reported genital play with another youth under the age of 18, and about one-fifth had started having sexual intercourse.251 By age 16, over 40 percent of both sexes report intercourse, and that rises to 55 percent for both boys and girls at age 17.252 Child development experts agree that consensual sex play among children, including intercourse between teenagers, is not psychologically harmful under ordinary circumstances and is probably a valuable psychosocial experience in developmental terms.253
EEvery state in the United States criminalizes sexual activity with someone below the age of consent, a crime typically called statutory rape. Legislators have created Romeo and Juliet exceptions to these laws so as to lessen or eliminate criminal penalties for young people close in age who have non-coercive sex with each other. At least 39 states exclude at least some teenage voluntary sexual activity from the category of statutory rape, typically by either setting a minimum age for the defendant (for example, 16 or 17) and/or by specifying that there is no crime committed if the defendant is no more than a specified number of years older than the victim (typically between two and four years).
These exceptions still leave many teenagers at risk of being labeled as sex offenders for engaging in sexual conduct that is legal for adults. At least 28 states require registration as a sex offender for someone convicted of having consensual sex with another teenager, if the offender was either age 17 or two years older than the other party. In 11 states, there are no Romeo and Juliet exceptions; anyone who has sex with a person below the minimum age of consent is committing a crime and could, if convicted, be required to register as a sex offender.
During research for this report, Human Rights Watch spoke with or came across the stories of a number of men and women who because of consensual teenage sex with willing partners must now register as sex offendersin some cases for lifeand suffer all the adverse consequences that come with that status. For example, in Georgia, a 26-year-old married woman was made to register as a sex offender for life and had to move from her homebecause it falls within an area in which sex offenders are prohibited from living, because as a teenager she had oral sex with a willing fellow high school student when she was 17 and he was 15.254 It is difficult, if not impossible, to fathom what public safety purpose is served by subjecting her to registration, community notification, and residency restriction laws.
As one individual who was convicted of statutory rape at age 16 for having consensual sex with his 14-year-old girlfriend told Human Rights Watch, We were in love. And now we are married. So its like I am on the registry for having premarital sex. Does having premarital sex make me a danger to society? My wife doesnt think so.255 A mother of a young man from Texas who has to register for having consensual sex at age 19 with his 14-year-old girlfriend noted, Our family has been devastated by this law that treats a young man in a consensual dating relationship the same as a violent rapist or a predator of young children.256
Case Study: Dan M.s story257
I was convicted of statutory rape when I was 17. The girl was 15. Now I am in college. I register everywhere and every time I am suppose[d] to. I must register every 90 days. I must register between the hours of 8 and 5 Monday thru Friday before the 15th [of the] month. Right now I can handle that. I am a student, my hours are flexible, but once I start work, I will either have to work near the police office I register at to do it on my lunch hour or take time off from work.
I get a call from the [college baseball] head coach to come to the office. My heart is in my throat. He takes me to the athletic directors office. The athletic director is beside himself. He tells me that an officer from the police station comes in to see him and that he says that we have a sex offender on campus that is on his baseball roster. He is angry. He says I must have lied on my application, because I checked no on my college application when it asked if I was ever convicted of a felony. I said I did not lie. [He was adjudicated and has no public criminal record]. I am not a felon. He says that being on the list makes me a felon. I said Im not.
I am use[d] to my family confronting these people [who ask me about being on a sex offender list]. It is hard to tell people over and over. The looks on their faces are hard to read. You never know what they are really thinking until much later. Here I am in a new school. I know no one and very early on I have to explain my past to total strangers.
When my family and I go on vacation to visit relatives in other states I must always look up the law as to my duties regarding the list in a particular state. More than two weeks in New York I must register. More than three consecutive days in one county in Florida I must register. My parents moved to Arkansas. If you are in Arkansas you must register after 14 days. They take a statement and fingerprint you. It is always like starting it up all over again. I will be visiting my parents for more than 30 days in a year so I had to be assessed as to my level of risk to reoffend. I had to take a psychological test. I wanted to puke [the questions] were so disgusting. Is that the type of person people think I am? I am not attracted to children, or dead people. I would never rape anyone. I respect women; I have three sisters, a mother, grandmothers, aunt and girlfriend who I love. I am a good person who made a bad decision with a peer 16 months my junior seven weeks after my 17th birthday. My coach might send me to New York next summer to play baseball. I will have to be assessed by them too. I will have to do this for another 23 years. That is how long I have to register.
Adjudicated Youth on Public Registries: Sealed Records Unsealed by Sex Offender Laws
Sex offender laws can also trump other laws designed to enable young offenders to have clean public records and keep their misconduct private. Michigan provides a powerful example of this problem.
Case Study: Michigan
In Michigan children can be tried and convicted as adults, with the conviction entering the public record. The state created an alternative procedure, however, for youth between the ages of 17 and 21 who commit certain crimes, including sex offenses. Under the Holmes Youthful Trainee Act (HYTA), judges have the option of allowing a young offender to plead guilty, and if he or she completes the period of supervision without incident the conviction is never entered into the public record and the young offender keeps a clean record. The goals and benefits of the HYTA are, however, compromised by sex offender registration and community notification laws. Young sex offenders who accepted a plea deal under HYTA have found that they are nonetheless required to register as sex offenders.
A federal class action lawsuit has been filed contending that placing a HYTA youths name on a public sex offender registry is akin to giving him a public criminal record.259 One of the plaintiffs is Sean C., who was adjudicated at 17 for having consensual sex with a girlfriend who was three weeks shy of 16, the age of consent in the state. At Seans sentencing, the judge said,
So, what should be the consequences for a 17-year-old who commits
an offense under these circumstances, particularly one whos
remorseful? By all accounts you are a reliable, bright and thoughtful
young man, and there are many glowing statements about your
personal qualities. So the question then becomes should this act
of indiscriminate behavior on your part relegate you to the status of
a convicted felon, and in my judgment that would not be fair .
Therefore, it is my decision that I will sentence you under the Holmes
Youthful Trainee Act .260
Although Sean C. successfully completed his HYTA sentence, he is required to register as a sex offender and is included on the states online registry.Sean wrote about his experience of being placed on the sex offender registry:
I thought the whole purpose behind being sentenced under HYTA was
so that I could start my life over, and basically be given a second
chance. In my opinion, the registry is far worse and has a much bigger
stigma attached to it than having a conviction on my record. A friend
of mine was sentenced under HYTA for something which does not
require registering and he can honestly say he has never been
convicted of a crime and it does not show up anywhere else, to ruin
Plaintiffs in the lawsuit report that they have had problems finding employment, housing, access to education and other opportunities because they are included as sex offenders on the states police and online registry.262 They also report ostracism, harassment, and vigilantism.263
As Sean wrote to the court, I was promised a clean start under HYTA, if I followed the rules. I followed the rules, but my name on the sex offender registry prevents me from having my clean break.264
Rethinking Sex Offender Laws for Juvenile Offenders
It is questionable that any good comes from turning children and teenagers who have engaged in sexual misconduct into registered sex offenders whose photos and offenses are online for all to see. Requiring community notification for teenagers who have engaged in consensual sex with others seems particularly problematic. The public has a strong interest in making sure that those youth who are troubled and are at risk of reoffending receive the help they need to avoid engaging in such conduct again. Treatment and rehabilitation of children is rarely furthered by publicizing that they were adjudicated or convicted of a sex crime. Moreover, as noted above, since most adult offenders were never youthful sex offenders, requiring adults to register for crimes committed as youth contributes little to the public interest in identifying and monitoring people likely to engage in sex offenses.
Human Rights Watch is not persuaded that there is ever a need to have child offenders register and subject them to community notification laws. The terms of an individual offenders post-adjudication supervision should be able to incorporate legitimate community safety precautions. However, if the law is going to authorize registration of children, no child should ever be required to register unless a court or authorized panel of experts determines he or she poses such a serious risk to public safety that other safety measures are insufficient and registration is necessary. Even then, a child who is registered should not be included on online sex offender registries. If the court or panel determines that some form of community notification is necessary, law enforcement should undertake to do so in a careful and limited way that would minimize the harm to the child while protecting public safety. Any registration requirement should also be periodically reviewed to ensure it remains necessary.
219 Human Rights Watch telephone interview with Scott Smith, MA, LCPC, P.G., Dover Counseling, Galesburg, Illinois, August 25, 2005.
220 Doug Ramsey, Parents of Young Sex Offenders Say Arizonas Laws Too Strict, KTAR News, October 30, 2006.
221 Boy, 5, Accused of Sex Harassment for Pinching Girls Butt, NBC4.com, http://www.nbc4.com/news/10577111/detail.html (accessed December 20, 2006). According to the news report, 28 Maryland kindergarten students were suspended during the 2005-06 school year for sexual offenses, including sexual assault, sexual harassment, and sexual activity. In November 2006 school administrators in Waco, TX gave a four-year-old pre-kindergarten student a suspension for allegedly rubbing his face in the chest of a female teachers aide while hugging her. Ibid.
222 Most developed nations and every jurisdiction in the United States maintain two separate institutions with responsibility for adjudicating criminal chargescriminal courts for persons over a stipulated age of majority, and juvenile courts, for minors. Human Rights Watch, For the Rest of Their Lives: Life without Parole for Child Offenders in the United States, October 2005, http://hrw.org/reports/2005/us1005/, pp. 14-24; Human Rights Watch, United States Custody and Control: Conditions of Confinement in New Yorks Juvenile Prisons for Girls, September 2006, http://hrw.org/reports/2006/us0906/; Franklin Zimring, Confronting Youth Violence (New York: Oxford University Press, 1998). In the past 30 years, state laws have cut back juvenile court jurisdiction in some serious cases, and there is an overall trend toward trying children in adult courts. Juvenile courts recognize that childrens crimes should be treated differently than adult crimes. In theory, juvenile courts emphasize rehabilitation over punishment. Ibid.
223 Kids as Young as 12 are Being Put on the Kansas Sex Offender Website, KAKE News, November 16, 2006.
224 Linda A. Szymanski, National Center for Juvenile Justice (NCJJ), Megans Law: Judicial Discretion over Requiring Juveniles to Register as Sex Offenders, March 2005.
225 The Adam Walsh Act, Sec.118, 113, 111 (registration and online notice requirements) and Sec.125 (for withholding of funding).
226 Email communication from Paul L.s mother to Human Rights Watch, September 14, 2006.
227 National Center on Sexual Behavior of Youth, What Research Shows About Adolescent Offenders, July 2003, http://www.ncsby.org/pages/publications/What%20Research%20Shows%20About%20Adolescent%20Sex%20Offenders%20060404.pdf (accessed August 24, 2007); and Katrina Baum, BJS, Juvenile Victimization and Offending, 1993-2003, August 2005, http://www.ojp.usdoj.gov/bjs/pub/pdf/jvo03.pdf (accessed August 24, 2007).
228 Howard Snyder, BJS, Sexual Assault of Young Children as Reported to Law Enforcement: Victim, Incident, and Offender Characteristics, July 2000, http://www.ojp.usdoj.gov/bjs/pub/pdf/saycrle.pdf (accessed August 24, 2007), p. 8.
229 Ibid., pp. 8-10, fig. 7.
230 Glen E. Davis and Harold Leitenberg, Adolescent Sex Offenders, 101, Psychology Bulletin (1987), pp. 417-419.
233 Human Rights Watch telephone interview with Sharon D., August 18, 2006.
234 Mark Chaffin and Barbara Bonner, Dont Shoot, Were Your Children: Have We Gone Too Far in Our Response to Adolescent Sexual Abusers and Children with Sexual Behavior Problems? Child Maltreatment, vol. 3, no. 4 (1998), pp. 314-316. Holly Smith and Edie Israel, Sibling Incest: A Study of the Dynamics of 25 Cases, Child Abuse & Neglect, vol. 11, no.1 (1987), pp. 101-8.
235 Association for the Treatment of Sexual Abusers (ATSA), Position Statement: The Effective Legal Management of Juvenile Sexual Offenders, adopted by the ATSA Executive Board, March 11, 2000, www.atsa.com/ppjuvenile.html (accessed December 4, 2006).
236 B. Gordon & C.S. Schroeder, Sexuality: A Developmental Approach to Problems (New York: Plenum Press, 1995).
237 Theola S. Labbe, New Approach to Young Offenders: Therapy Addresses Spate of Sex Crimes, Washington Post, January 9, 2005.
238 Human Rights Watch telephone interview with Dr. Robert Longo, a child psychiatrist who specializes in treating child sex offenders, August 1, 2005.
239 D. Leidecke and M. Marbibi, Texas Youth Commission, Risk Assessment and Recidivism in Juvenile Sex Offenders: A Validation Study of the Static-99, 2000.
241 Donna Vandiver, A Prospective Analysis of Juvenile Male Sex Offenders: Characteristics and Recidivism Rates as Adults, Journal of Interpersonal Violence, vol.21, no.5 (2006), pp. 673-688.
242 Franklin Zimring et al., The Predictive Power of Juvenile Sex Offending: Evidence form the Second Philadelphia Birth Cohort Study, June 2007, pp. 13-14.
244 Frank Zimring et al., Juvenile and Adult Sex Offending in Racine, Wisconsin: Does Early Sex Offending Predict Later Sex Offending in Youth and Youth Adulthood? January 23, 2007.
245 Ibid., p. 23.
246 Zimring et al., The Predictive Power, pp. 13-14.
247 Zimring et al., Alex Piquero, Juvenile and Adult Sex Offending in Racine, Wisconsin, January 23, 2007.
248 Ibid., p. 14.
249 Human Rights Watch telephone interview with Nina T., November 20, 2006.
250 Robert Longo and D.S. Prescott, eds., Current Perspectives: Working with Sexually Aggressive Youth and Youth with Sexual Behavior Problems (Holyoke, MA: NEARI Press, 2006).
251 US Department of Health, Education, and Welfare, National Institute of Child Health and Human Development, National Longitudinal Study of Adolescent Health, 2000.
253 Center for Disease Control, Sexual Behavior Among High School StudentsU.S. 1990, Morbidity and Mortality Weekly Report vol.40 (1992), pp. 885-88.
254 Complaint - Class Action for Injunctive Relief, Whitaker v. Perdue, Civil Action No._____, June 20, 2006.
255 Human Rights Watch telephone interview with Kareem J., August 5, 2005.
256 Email communication from Janet Y. to Human Rights Watch, October 2, 2006.
257 Letter from Dan M. to Judge Nancy G. Edmunds, copy on file with Human Rights Watch.
258 Letter from Henry F. to Judge Nancy G. Edmunds, copy on file with Human Rights Watch.
259 John Doe and Samuel Poe v. Tadarial Sturdivant, Sixth Circuit Court of Appeals No. 05-2631, Plantiffs Brief, July 25, 2006.
260 Ibid. at 4.
262 See affidavits of Doe VI (fired); Doe V (fired; denied housing); Doe IV (fired, unable to attend college); Doe I (denied employment); Doe II (evicted); Doe IX (expelled from law school); Poe X (unable to live with his child in subsidized housing); Doe XI (unable to coach or teach Sunday School). Also, John Doe and Samuel Poe v. Tadarial Sturdivant, Sixth Circuit Court of Appeals No. 05-2631; Amicus Curiae Brief of the ACLU of Michigan, July 25, 2006.
263 Ibid. Doe VIII (obscene materials sent to home and work); Doe XVIII (600-person lecture class informed that Doe was sex offender).