Governments have an obligation to protect people and take appropriate steps to safeguard the lives of those within its jurisdiction to protect them from violence. One element of that duty is to take measures to deter and prevent crime.428 They must do so, however, within a human rights framework, which places restrictions on those measures that infringe on the human rights guaranteed to all. A persons conviction of a crime does not extinguish his or her claim to just treatment at the hands of government.
Sex offender laws interfere with a panoply of protected rights: the rights to privacy,429 to family430 and home,431 to freedom of movement and liberty (including the right to work432 and to reside where one chooses433), and to physical safety and integrity (including protection from harm by private as well as public actors).434 None of these rights are absolute. But laws that infringe upon them 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 UN Human Rights Committee, which assesses compliance with the International Covenant on Civil and Political Rights (ICCPR), has stated with regard to limiting the right to movement:
If a state action 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.436 Reasonableness is achieved if the restriction is both proportional to the end sought and necessary in the circumstances.437
The Siracusa Principles on the Derogation from the International Covenant on Civil and Political Rights (Siracusa Principles) were formulated to clarify when and to what extent a state can limit a human right affirmed by the ICCPR, and how to measure whether the restriction of the right is proportionate to the public safety concern.438
The Siracusa Principles emphasize that limitations on individual rights are to be narrowly construed.439 Under the Siracusa Principles, interference with an ICCPR freedom: (1) must not jeopardize the essence of the right concerned;440 (2) must further a legitimate aim in a manner proportionate with that aim;441 (3) must be subject to the possibility of challenge to and remedy against its abusive application;442 and (4) must not be imposed in an arbitrary manner.443 The Human Rights Committee has held that a lack of consideration for personal circumstances when depriving citizens of a fundamental right is prohibited under the ICCPR.444 The Committee also stated that the ICCPR did not allow rights to be taken away based solely upon the category of the crime for which the offender is found guilty.445
The principle of proportionality as it applies to assessing the legitimacy of restrictions imposed on human rights is used to ensure that rights are not denied arbitrarily, and that any human rights restrictions are rational and evidence-based.
International law recognizes that juvenile offenders require special protection. The Convention on the Rights of the Child (CRC) and the ICCPR prohibit arbitrary or unlawful interference with a child's privacy.446 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 childs privacy be respected at all stages of the juvenile justice process, including with regard to dissemination of a child offenders criminal record, and that safeguards be taken during transport to shield children and protect them from insult, curiosity and publicity in any form.447
Protection of public safety is unquestionably a legitimate aim. But US registration, community notification, and residency restriction laws are neither proportional to nor necessary to further that goal, nor are they the least restrictive measures possible consistent with the goal.
Registration requirements have not been carefully drafted in a way which balances the duty to protect individuals from sexual violence with the basic human rights of an individual who has committed a sex crime and is released into the community. The examination of registration requirements in this report reveal that they are overbroad, often severely impacting people who committed minor nonviolent offenses, including acts such as public or indecent exposure, and consensual sex by teenagers.
Even for people who have committed serious offenses, that fact alone is not determinative of their future dangerousness to society, nor can that factor be the basis on which an individual is effectively stripped of their rights. Yet, with only a few exceptions, states have not established processes by which registration requirements are keyed to an individualized determination of whether a particular offender poses a risk of future reoffending. Moreover, the requirement to register continues long after the point at which the offender poses negligible risk of reoffense.
In contrast, registration in the United Kingdom takes more care to strike the balance between the duty to protect society from sexual violence and the post-release rights of former offenders. By having a limited registration scheme which requires certain personal information to be retained only by the police, the United Kingdoms sex offender registry has been held to not impermissibly infringe on the right to privacy and other rights.
The European Court of Human Rights and UK Sex Offender Registration
The European Court of Human Rights (ECtHR) has considered three challenges to the United Kingdom Sex Offenders Act 1997 from persons convicted of sex offenses that required them to register information with the police, including their name, date of birth, home address, and any changes of name or home address. There was no public access to the registration in question and no notification requirement. The court found that no evidence was presented to it to suggest that individuals were at risk of public humiliation or attack as a result of the obligations to register with police under the Act.
The court considered that the requirement to provide the information to the police amounts to an interference with his private life. However, the measures were in accordance with the law and pursue legitimate aims, namely the prevention of crime and the protection of the rights and freedoms of others. The court then considered whether they are necessary in a democratic society, that is, proportionate to the aims pursued.
The court examined the proportionality of the measures on the basis that the interference with private life extended only to the requirement to register with the police. The court found that the interference was proportionate, in light of the gravity of the harm that may be caused to the victims of sexual offenses and in the absence of evidence presented to it that the individuals were at risk of public humiliation or attack as a result of this form of registration. The court left open the possibility that if evidence was presented that suggested attacks on registered individuals were connected in any way with the registration process in question, that individuals were at risk of public humiliation or attack, or that the requirement to register would lead to information that is not already publicly available becoming known to the media or the general public, its assessment as to its proportionality or interference with other rights would be different.448
Most of the damage to the rights of sex offender registrants occurs because of community notification, both because the laws directly interfere with their ability to live private lives with their families and because the laws have generated public responses that have led to harassment and violence.
Current community notification laws, while ostensibly enacted with the goal of promoting public safety, are neither necessary nor proportionate to that goal. Most notification laws simply reproduce the over-breadth of registration requirements, providing information to the public about people who pose little or no risk. Further, they ensure universal access to registration information, so that people who have no legitimate need-to-know have access to the information on state sex offender registries. This universal dissemination subjects former offenders and their families to needless stigma and hostility.
Laws that prohibit convicted sex offenders from moving to designated areas otherwise open to residential use and that banish them from existing homes in such areas cannot be squared with human rights principles.
On a number of occasions, the ECtHR has addressed human rights challenges to residency restrictions applied against particular individuals. The courts rulings reflect the importance of assessing necessity and proportionality on an individualized basis.
For example, the court considered the case of a Dutch citizen who had repeatedly and overtly used hard drugs in a designated emergency area (high crime area) of Amsterdam, who had received several orders prohibiting him from the area but had nevertheless returned to the area to use hard drugs in public, and who consequently was banned from this area for 14 days.449 In this case, the court found that the restriction was proportionate because it: (1) was limited in duration; and (2) did not result in undue hardship to the drug abuser, as he did not work or live in the area in question and was still able to collect his social security benefits and mail from the area. But the ECtHR did not accept residency restrictions in a case in which the Italian police placed a suspected mafia member under special supervision that included severe restrictions on his freedom of movement for three years.450 The Court ruled that although the measures pursued legitimate aims (namely, the maintenance of public order and the prevention of crime), they failed to fulfill the requisite condition of being necessary in a democratic society to achieve those aims, because there was insufficient concrete evidence to show that there was a real risk that [the suspect] would offend.451
With few exceptions, judges have upheld sex offender laws, rejecting procedural due process challenges, equal protection, banishment, and ex post facto claims, and arguments that such laws violate fundamental rights, including the right to privacy.452
The US Supreme Court has twice upheld state (Alaska and Connecticut) community notification laws.453 The specific constitutional issues raised in the cases differed, but in both cases the Court failed to grapple forthrightly with the practical implications of community notification. It gave little weight to the shaming and stigma that inevitably and necessarily accompany community notification, and overlooked the unnecessarily broad scope of the statutes with respect to both who is required to register and who may access the registry.454 Lower courts have similarly failed to acknowledge the serious rights violations that accompany community notification laws. For example, with regard to the privacy rights violated by community notification laws, a federal court noted, a states publication of truthful information that is already available to the public does not infringe the fundamental constitutional rights of liberty and privacy.455
Dissenting justices have acknowledged the significant consequences of community notification. For example, Justice Ginsburg noted community notifications onerous and intrusive obligations on the offender, the resulting profound humiliation and community-wide ostracism, its resemblance to historical practices of shaming, reliance upon convictions rather than present dangerousness, and the laws excessiveness in relation to its non-punitive purpose.456
Former offenders in a number of cases have claimed that sex offender registration and notification laws impermissibly infringe on protected rights. After concluding that fundamental rights were not, in fact, implicated by the laws, the courts did not subject them to close scrutiny, nor did they question the laws proportionality. For example, a registrant in Tennessee argued that the states registration law depriv[ed] him of his constitutional rights of privacy and employment, and the right to be free from stigma, without due process of law.457 The Sixth Circuit Court of Appeals, however, refused to recognize a privacy right in this context as a fundamental right.458 Similarly, residents in Florida challenged that states sex offender registration law, arguing that the law infringed on their right to associate with their families, the right to be free from threats, and their right to find and/or keep employment and housing.459 The appellate court ruled that none of these are fundamental rights.
Under US constitutional jurisprudence, if a fundamental right is not involved (and absent discrimination), courts will not require regulations to be anything more than rationally related to a legitimate public purpose, and the rationality test is easily satisfied unless a law is utterly irrational.
The United States Supreme Court has yet to consider the constitutionality of residency restrictions. Federal and state courts have, for the most part, upheld these laws against challenges that the restrictions are unconstitutionally overbroad460 and vague;461 permit a regulatory taking without just compensation;462 interfere with the right to contract;463 and violate substantive due process rights to housing,464 the Ex Post Facto Clause against retroactive punishment,465 and the Eighth Amendment ban on cruel and unusual punishment.466
The Eighth Circuit Court of Appeals unanimously upheld the Iowa residency restriction statute, concluding that residency restrictions are a form of civil regulation, and that keeping sex offenders a certain distance from where children gather was rationally related to the legitimate legislative goal of protecting children.467 The court found that the federal constitution does not include a right to live where you choose.468 The Court rejected the registrants contention that the law violated their fundamental right to live with their family members, because the law only limited where registrants could live, not with whomany impact on the family was only incidental or unintended.469 Although, as the dissent in the case noted, Iowas residency restriction law leaves so few legal housing options that many offenders face the choice of living in rural areas or leaving the state,470 the majority court refused to lend such consequences any legal significance.
Sex offenders have challenged the rationality of residency restrictions by pointing to a lack of evidence that the exclusion zones enhance childrens safety.471 Courts have conceded that the efficacy of the restrictions is unproven472 but have responded that the legislature deserves broad discretion to deal with potentially dangerous situations.473 No court applying rational basis review has held that residency restrictions are an unreasonable means to achieve the states legitimate purpose of protecting children.474
Courts have not been notably more protective of the rights of juveniles subjected to registration and community notification laws than they have of adults. Some juvenile offenders have challenged registration and notification on the basis that those laws open their records to public view, whereas criminal law has generally permitted children to have their juvenile records kept confidential or expunged.
Federal courts have recognized the validity of the argument that juveniles have a protected liberty interest in the confidentiality of their records, but have yet to overturn any laws because that interest has been violated. One court specified that the issue of confidentiality was immaterial in that particular jurisdiction, mainly because disclosure of juvenile information under its community notification law was limited to law enforcement,475 implying that if notification went beyond law enforcement, it would violate juveniles expectation of privacy. Another federal court held that juveniles have a particularized liberty interest in the established policy of setting aside their criminal records.476 However, the court stopped short of finding community notification an impermissible violation of this particularized liberty interest for all juveniles.477 Rather, it held that procedures to determine who would be subject to notification must consider juveniles heightened liberty interests.478
428 The European Court of Human Rights (ECtHR) has explicitly noted that the gravity of the harm that may be caused to the victims of sexual violence places states under a duty to take measures to protect people from such harm. Stubbings and Others v. the United Kingdom, Judgment of October 22, 1996, Reports 1996-IV, paras. 62-64.
429 The International Covenant on Civil and Political Rights (ICCPR), to which the US is a State Party, protects against arbitrary or unlawful interference with [anyones] privacy, family, home or correspondence, article 17.
430 Article 23 of the ICCPR provides that [t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the state, and that all men and women have the right to marry and to found a family. The right to found a family includes the right to live together. The UN Human Rights Committee, which oversees the implementation of the ICCPR, has set out, in General Comment No. 19: Protection of the Family, the right to marriage and equality of the spouses, article 23, 27/07/90, that the right to found a family implies the possibility to live together. The Convention on the Rights of the Child (CRC) G.A. res. 44/25. annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, requires, in Article 9 (1) that State Parties ensure that a child shall not be separated from his or her parents against their will, allowing for exceptions only where separation is necessary for the best interests of the child and where such a determination has been made by competent authorities subject to judicial review. Article 10 (2) establishes a childs right to maintain on a regular basis, save in exceptional circumstances[,] personal relations and direct contacts with both parents. The United States signed, but did not ratify, the CRC on February 16, 1995, meaning that while it is not a party to the Convention, it cannot take measures that would defeat the object and purpose of the treaty (see article 18 of the Vienna Convention on the Law of Treaties).
431 The right to housing is recognized in the Universal Declaration of Human Rights. Also, The International Covenant on Economic, Social, and Cultural Rights (ICESCR), G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No.16) at 49, U.N. Doc. A/6316 (1966), U.N.T.S. 3, entered into force January 3, 1976, provides that everyone is entitled to adequate housing (art. 11(1)). The United States signed, but did not ratify, the ICESR on October 5, 1977. Adequacy must be evaluated from multiple perspectives, including security of tenure, affordability, and location. ICESCR General Comment 4 (1991), para. 7: Adequate shelter means adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilitiesall at a reasonable cost. The UN Committee on Economic, Social, and Cultural Rights has emphasized that no one shall be subject to housing discrimination, irrespective of their status. The right to adequate housing applies to everyone . Furthermore, individuals, as well as families, are entitled to adequate housing regardless of age, economic status, group or other affiliation or status, and enjoyment of this right must not be subject to any form of discrimination. ICESCR General Comment 4 (1991), para 6.
432 The ICESCR recognizes the right to work and to an adequate standard of living in articles 6 and 11.
433 Article 12 of the ICCPR recognizes the right to liberty of movement and freedom to choose ones residence. Under article 12(3) of the ICCPR, a state may limit this freedom only insofar as it is necessary for the protection of the rights of others, national security or public order, or public health or morals. These limitations must be expressly provided for by the law and must be strictly construed.
434 The UN Human Rights Committee, in its general comments to the ICCPR, notes that States have an obligation to protect their citizens from private actors: The positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the state, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights. UN Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant. UN States are in violation of their obligations under the ICCPR where they are found to be permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate, or redress the harm caused by such acts by private persons or entities.
435 General Comment 16/32, in ICCPR/C/SR.749, March 23, 1988, para. 4. Nicholas Toonen v. Australia, Human Rights Committee, 50th Sess., Case No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992, para. 8.3. Although the Committee was addressing freedom of movement, the criteria it enunciated apply for all protected rights.
438 U.N. Doc. E/CN.4/1985/4, Annex (1985); "The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights," Human Rights Quarterly, vol. 7, no. 1 (February 1985).
440 Siracusa Principle 2.
441 Siracusa Principle 10.
442 Siracusa Principle 8.
443 Siracusa Principle 7.
444 Mr. Rawle Kennedy v. Trinidad and Tobago, Communication No. 845/1998, U.N. Doc. CCPR/C/74/D/845/1998 (2002), para. 7.3, http://www1.umn.edu/humanrts/undocs/845-1998.html (accessed June 19, 2006).
445 Eversley Thompson v. St. Vincent and the Grenadines, Communication No. 806/1998,
446 Article 16 of the CRC, following closely the language of article 17 of the ICCPR, states "(1) No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honor and reputation. (2) The child has the right to the protection of the law against such interference or attacks."
447 Administration of Juvenile Justice (The Beijing Rules), adopted November 29, 1985, G.A. Res. 40/33, annex, 40 U.N. GAOR Supp. (No. 53) at 207, U.N. Doc. A/40/53 (1985) (The juvenile's right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labeling.").
448 ECtHR, Adamson v United Kingdom, Application 4223/98, Decision of January 26, 1999. A previous application, Ibbotson v. UK, No. 40146/98 (October 21, 1998), had been considered inadmissible on similar grounds by the now-defunct European Commission on Human Rights (which was replaced on November 1, 1998 by the current full-time European Court of Human Rights), and in Massey v. United Kingdom, Application No. 14399/02, Partial Decision on Admissibility, April 8, 2003, the Court also had to consider, amongst other complaints, that registration was an interference with Masseys private life and that the registration requirement is automatic, with no assessment or review of the necessity of registration in his particular case. The Court applied the reasoning in Adamson in declaring that part of the application inadmissible.
449 Landvreugd v. The Netherlands, 37331/97, June 4, 2002.
450 Labita v. Italy, 26772/95, April 6, 2000.
452 For example, in US law: Dean v. Texas, 60 S.W.3d 217 (Tx Ct App. 14th Dist 2001) and Degrijzev v. Pataski, 2004 US Dist. LEXIS 2260 (both holding that registration scheme does not violate ex post facto clause of US constitution because it is not punitive); A.A. v. New Jersey, 341 F.3d 206 (2003) (rejected registrants privacy challenge because purpose of the registration statute was not to humiliate); and the following cases in which the court found that registration and notification requirements turn on conviction, not a determination of dangerousness, and no protected liberty interests are at stake. Milks v. Florida, 894 So.2d 924 (S.C. Florida 2005), certiorari denied, 2005 US Lexis 6201 (Oct. 3, 2005); Haskell v. Maine, 2003 US Dist. LEXIS 6384 (Maine 2003); Allen v. Dretke, 2004 US Dist. LEXIS 5308 (Texas 2004); Gunderson v. Hvass, 339 F.3d 639 (Minnesota 2003); Fullmer v. Michigan Department of State Police, 360 F.3d 579 (2004); Doe v. Tandeske, 361 F.3d 594 (Alaska 2004). But see In re Ronnie A., 585 S.E.2d 311 (Sup. Ct. S.C. 2003) (no violation of due process where youth, under 12 at the time of his crime, required to register because registration information about juveniles is not made public by the law).
453 Smith v. Doe, 123 S.Ct 1140 (2003) and Connecticut Department of Public Safety v. Doe, 123 S.Ct. 1160 (2003). The Court has declined to review any of the sex offender cases that have come before it since, including a challenge to the Iowa residency restrictions law that prevents sex offenders from living within 2,000 feet of parks or other places where children might be expected to congregate. Doe v. Miller, 405 F.3d 700 (8th Cir. Iowa 2005), motion for stay denied, 418 F.3d 950, petition for certiorari denied, 2005 US Lexis 8630 (November 28, 2005).
454 Ibid., at 100.
455 Ibid., at 1343-45.
456 Ibid., at 104. The trial court in the Connecticut case also noted the overly broad nature of the notification scheme: Connecticuts [sex offender] web site makes information available to more people than is necessary to achieve its public safety and enforcement goals . The website makes information available to millions of people who will never come to the state or otherwise come into contact with the registrant. Doe v. Lee, 132 F. Supp. 2d57, 69 (D. Conn. 2001).
457 Cutshall v. Sundquist, 193 F.3d466, 478 (6th Cir. 1998), certiorari denied, 529 US 1053 (2000).
459 Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005), cert. denied, 126 S.Ct 624 (US 2005).
460 Mann v. State, 603 S.E. 2d 283, 286 (Ga. 2004); People v. Leroy , 828 N.E.2d 769, 784 (Ill. App. Ct. 2005); Seering I, No. Crim. AGINOO6718, 2003 WL 21738894, at 14 (Iowa Dist. Ct. April 30, 2993), 701 N.W.2d 665 (Iowa 2005).
461 Mann, 603 S.E.2d, at 286.
462 Ibid., at 285.
463 Doe v. Petro, No. 1:05-CV-125, 2005 WL 1038845, at 5 (S.D. Ohio May 3, 2005).
464 Petro, 2005 WL 1038846, at 1, 5; Miller I, 298 F. Supp. 2d 844, 871-76 (S.D. Iowa 2004), 405 F.3d 700 (8th Cir. 2005); Leroy, 828 N.E. 2d at 776-77; Seering I, 2003 WL 21738894, at 4-9.
465 Petro, 2005 WL 1038846, at *2; Miller I, 298 F. Supp. @d at 866-71; Lee v. State, 895 So. 2d 1038, 1041-44 (Ala. Crim. App. 2004); Thompson v. State, 603 S.E. 2d 233, 234-36 (Ga. 2004); Denson v. State, 600 S.E. 2d 645, 647 (Ga. Ct. App. 2004); Leroy, 828 N.E. 2d at 778-79; Seering I, 2003 WL 21738894, at 10-12.
466 Miller I, 298 F.Supp.2d at 879-80; Leroy, 828 N.E. 2d at 784; Seering I, 2003 WL 21738894, pgs 13-14.
469 Doe v. Miller, 405 F.3d 700 (8th Cir. 2005), at 710.
470 Ibid., at 724 (Melloy, J. dissenting).
471 For example, Miller II, 405 F.3d, at 714 ("[Plaintiff sex offenders] contend that the statute is irrational because there is no scientific study that supports the legislature's conclusion that excluding sex offenders from residing within 2,000 feet of a school or child care facility is likely to enhance the safety of children.").
472 Ibid., at 714 (describing target of statute as "an area where precise statistical data is unavailable and human behavior is necessarily unpredictable"); Leroy, 828 N.E.2d at 777 ("[T]he record is bare of any statistics or research correlating residency distance with sex offenses ."); Seering II, 701 N.W.2d 655, 665 (Iowa 2005) ("[T]estimony revealed that the two- thousand-foot restriction was not necessarily a perfect protection against this threat .").
473 For example, Miller II, 405 F.3d , pg. 715 ("The legislature is institutionally equipped to weigh the benefits and burdens of various distances, and to reconsider its initial decision in light of experience and data accumulated over time."); Leroy, 828 N.E.2d at 776-77 ("[T]he state has broad powers, subject to constitutional confines, to avert potentially dangerous situations."); Seering II, 701 N.W.2d, 665 (noting that risk of recidivism posed by sex offenders is high and explaining that a perfect fit "is not necessary to meet the rational basis standard.").
474 See Miller II, 405 F.3d, 716 ("[W]e are not persuaded that the means selected to pursue the State's legitimate interest are without rational basis."); Leroy, 828 N.E.2d, 777 ("[W]e conclude that by prohibiting child sex offenders from living within 500 feet of a playground or [similar] facility subsection (b-5) also bears a reasonable relationship to the goal of protecting children from known child sex offenders and sets forth a reasonable method of furthering that goal."); Seering II, 701 N.W.2d, 665 ("We believe there is 'a reasonable fit between the government interest' of preventing sex offenders from re-offending and the residency restriction statute, 'the means utilized to advance that interest.'") (quoting State v. Hernandez-Lopez, 639 N.W.2d 226, 238 (Iowa 2002)).
475 In re Appeal in Maricopa County Juvenile Action No. JV-132744, 933 P.2d 1248 (Ariz. Ct. App. 1996).
476 Doe No. 1 v. Williams, 167 F.Supp. 2d 45, 64 (D.D.C. 2001).