International Megan’s Law: Bad Public Policy

On Monday, February 8, 2016, President Obama signed HF 515, and it became Public Law 114-119, known casually as “International Megan’s Law” (IML).  The very next day, Janice Bellucci, a civil rights attorney and President of CA-RSOL, filed a legal challenge in Federal Courts in California, citing constitutional violations of the First and Fifth Amendments, and the Ex Post Facto Clause.  After careful review of the intent and apparent effect of this new Public Law, and the arguments raised in the legal challenge, it seems IML is not only unwarranted, but establishes a dangerous precedent.     

The stated intent of IML is:  “To protect children and others from sexual abuse and exploitation, including sex trafficking and sex tourism, by providing advance notice of intended travel by registered sex offenders outside the United States to the government of the country of destination, requesting foreign governments to notify the Unites States when a known sex offender is seeking to enter the United States, and for other purposes.”  It seems the intent of IML was honorable enough for Congress to support it and the President to sign it, but lawmakers might have been unaware of the real consequences. 

IML extends the work of Operation Angel Watch, functioning for several years to monitor child sex trafficking and tourism between the US and foreign countries.  With the US Marshal’s Service and international coordination, Operation Angel Watch has facilitated numerous international arrests for child sexual abuse.  With evidence lacking that the 840,000 current US registered sex offenders are engaged in an international child sex trade, IML has turned the noble intentions of Operation Angel Watch into a blacklist for US registered sex offenders. 

IML creates the Angel Watch Center within the US Department of Homeland Security (ICE-CEIU).  Teamed with the US Marshal’s Service National Sex Offender Targeting Center (NSOTC) as its investigative and enforcement partner, the Angel Watch Center will become something of a clearinghouse for both US citizens and foreign nationals who have sex offenses, and are traveling in or out of the US.  IML creates the authority for Angel Watch Center and NSOTC to share information with the US Department of Justice (Federal law enforcement), the US State Department (controls passports), INTERPOL, and foreign governments regarding registration and international travel of US citizens who, under IML, meet various equivocal definitions of “sex offender.” (IML, Sec. 6)

IML requires notification of international travel for most US sexual offenders, regardless of whether they are currently on a sex offender registry (inconsistent with the stated intent).  Perhaps the most disturbing provision for IML is for registered sex offenders who have an offense involving a minor: if those offenders have a passport, it will be revoked. (IML, Sec. 8)  If a member of that group applies for a new passport, it will be issued with a yet to be determined “unique passport identifier” – seemingly to alert authorities that the bearer is not just a sex offender but, at least by implication, at risk for molesting children.        

When a covered registrant plans to travel outside the US, destination countries and INTERPOL will be notified.  IML does not provide for registrants to know what information has been collected and shared between federal agencies or conveyed to foreign governments.  Registrants might mistakenly believe notification results in being “cleared” to travel, and be surprised to find their travel plans suddenly interrupted.  Whether traveling for business or pleasure, disruptions are likely to be unnecessarily embarrassing and economically damaging.  (Challenge, p. 16-20)   Inconvenience is just the beginning. 

Violations of IML have severe penalties.  When a registrant applies for a passport, they will be required to disclose their registration status. (IML, Sec. 8 (e))  A registrant who knowingly fails to provide information required for international travel, and engages or attempts to engage in the intended travel, in violation of IML, is subject to fines and/or imprisonment for up to ten years. (IML, Sec. 6, (b)) 

When the US has never before flagged passports for dangerousness, will the world think that US authorities are overreacting?  Or believe targeted offenders really ARE dangerous?  Registrants should be prepared to be questioned by customs when leaving the US and by enforcement authorities in every destination country.  Depending on how passports are marked, registrants may have problems boarding airplanes, renting cars, or checking into hotels.  If a registrant is traveling with minor children, they should expect to be stopped and questioned by foreign authorities, as intended - the Angel Watch Center will have alerted international authorities that a known sex offender might be engaged in child sex trafficking.  Can foreign authorities ignore such dire warnings?

Travel disruptions might not be the worst outcome for registrants traveling abroad.  Even if passports are marked in a manner only intended for enforcement authorities, it is not just third world countries where local law enforcement might not be professionally respectful of identified ‘child molesters.’  Bellucci cites a dozen cases of registrants in the US who were injured or murdered when vigilantes discovered their status.  Bellucci argues that registrants identified as sex offenders, regardless of how discretely passports are marked, puts registrants and their traveling companions in grave danger. (Challenge, p. 13-16) 

Failure-to-register (FTR) violations are frequent in the US – perhaps more likely the result of carelessness than deliberate willfulness.  If offenders don’t comply with every requirement of IML, it would seem that, on a single trip abroad, a traveling registrant could have multiple opportunities for felony violations of IML.  Each potential violation could be cause for international authorities to arrest, detain, and charge registrants.  With the possibility of prison time, in the US or in a foreign country, some registrants might be intimidated into a plea agreement; others will just be grateful to get back home. 

Because most US registered sex offenders are already closely monitored, it is unlikely that IML will have much effect on its stated goal of protecting children from international sexual predators, but IML very likely will be counterproductive for the vast majority of offenders who are truly in recovery.  Some registrants might decide that a stigmatizing passport and onerous travel requirements carry too much personal risk, and choose to forego international travel. 

On February 9, 2016, for the first time in US history, the US government ordered passports for an underclass of US citizens to bear a “unique passport identifier.” (Challenge, p. 2)   But it’s not the first time in world history that citizens have been stripped of civil rights based only on status.   On October 5, 1938, the German government invalidated all passports for Jewish citizens and ordered a unique passport identifier: a “J”.  It was 74 years ago that Executive Order 9066 authorized the unwarranted but popular roundup of Japanese Americans during WWII.

Lest anyone thinks relating sex offenders in the US to Japanese Americans or Jews in Nazi Germany seems like an ugly comparison or overreaction, that is exactly the point…  If Japanese Americans and Jewish citizens can be stripped of citizenship rights by their own governments, under the pretense of public safety or national security, we should not overlook the possibility that fear, anger, hate, and misinformation could lead to a similar fate for other unpopular minorities in the 21^st Century.  IML results in the unwarranted suspension of civil rights - not for punishment or veritable dangerousness, or through due process, case by case, in the criminal justice system, but simply by status through civil law. 

Concerns about the effects of IML should not be misconstrued as indifference to child sex trafficking.  IML misrepresents a valid public concern regarding sexual violence, and launches an unprecedented attack on the civil rights of US citizens.  Proponents of this sweeping, misguided law, have overstated both offender risks and public benefits.  IML is contrary to credible research that should guide informed public policies.  With more than 95% of sexual offenses committed by first-time offenders, broadly targeting known sexual offenders detracts from effective prevention efforts. 

The “war on drugs” and the “war on terrorism” demonstrably have international roots, yet Americans who have been identified for risk of drug trafficking or acts of terrorism don’t have marked passports.  The valiant war against sexual abuse has shifted to a popular war against sexual offenders.  In a country founded on constitutional principles of civil liberties, we don’t have to choose between zealously protecting children and avidly guarding the civil rights of all our citizens.  We can be advocates for both.   

Jon Brandt, MSW, LICSW

Note to individuals who might be affected by International Megan’s Law:  As of the date of this blog, IML has not been implemented. The pending court challenge may prevent, delay, or alter implementation.  Individuals who believe they could be subject to IML can seek information through their state (SORNA) registry, or through the US Department of State, passport information.

Q & A with Karen Terry & Andrew Harris on call for papers for a special edition of SAJRT on sexual violence in institutional and organizational settings

This is the first of two Q & A posts, over the next couple of weeks, on upcoming special editions of SAJRT. There is currently a call for papers out on a special edition related to “sexual violence in institutional and organizational settings”, please read the blog below and if you are interested in submitting an article follow the instructions on the SAJRT website (http://sax.sagepub.com/content/28/2/154.full.pdf+html)  – Kieran  

        What is the topic of this special issue?  

Our goal with this special issue is to advance the base of knowledge in the area of sexual violence and abuse that occurs within institutional or organizational settings.  We are looking for contributions from across a range of disciplines and frameworks that examine topics such as the dynamics and correlates of institutional sexual abuse; the ways in which institutional norms and structures may be implicated in sexual violence and abuse; perpetrator characteristics and related work on typology development, risk assessment, interdiction, and treatment; the nature and scope of sexual victimization within an institutional context; the ways in which organizations respond to allegations or known incidents of sexual abuse and violence; and promising practices related to sexual violence and abuse prevention within institutional and organizational contexts.  

Why publish the special edition in 2016?

In 2002, reports began emerging about the extent of child sexual abuse within the Catholic Church and the Church’s response to allegations of abuse. Since that time, we have seen an increasing recognition of the problem of sexual violence and abuse occurring within various youth-serving organizations, religious institutions, K-12 and post-secondary educational settings, military agencies, workplaces, and other organizational venues.  Coupled with this, we’ve seen growing media coverage of cases involving sexual violence and abuse in such settings, along with an expanded range of policy attention and activity.   Meanwhile, although we are seeing more attention to these issues in the research community, there is a growing demand for high-quality research on this topic. To date, there are few reliable studies examining the wide range of topics that we are seeking to explore through this special journal issue.   

Why is this special edition important to the field of sexual abuse research, and what are the potential implications of the special edition for practitioners?

It is critical that institutions and organizations improve their responses to sexual abuse incidents, address underlying organizational conditions that may foster such incidents, and develop viable systems of early intervention and prevention. It’s also important that they base these responses on the best available research evidence.  To this end, we believe that we will be successful in both providing a forum for emerging research and serving as a catalyst for more work in this critical area.  Ultimately, we hope that the issue will help refine our understanding of the correlates and dynamics of sexual abuse within institutional settings, and can aid in identifying the parameters of effective strategies and responses.    

Karen Terry, PhD, & Andrew Harris, PhD.

In 500 words of less discussing evidence-based policy for sex offenders with Grant Duwe, PhD

As the size of the “what works” literature has expanded over the last four decades, so have efforts to base correctional policy and practice on the evidence that has accumulated. The embrace of what’s come to be known as “evidence-based practices” is reflected, for example, by growing use of the risk-needs-responsivity model, which prescribes the use of risk and needs assessments so as to prioritize higher-risk offenders for effective interventions that are calibrated to their criminogenic needs, strengths, learning styles, and abilities.

When it comes to sex offenders, to what extent is correctional policy and practice, at least within the U.S., rooted in the evidence? Unfortunately, not much. Since the early 1990s, many states in the U.S. have implemented longer prison sentences for sex crimes, involuntary civil commitment programs, sex offender registration and notification (SORN), residence restrictions, and lifetime probation and parole (Meloy, 2005).

The guiding principle behind these legislative efforts is that the incidence of sexual offending can be reduced by increasing the risk and costs associated with committing a sex offense. While there is very little research that has looked at the impact of longer sentences on sexual offending, the literature has demonstrated that residence restrictions do not reduce sex offense recidivism (Duwe, Donnay, and Tewksbury, 2008). Research on SORN has generally found that it has failed to significantly lower sexual offending (Drake, 2009), although the findings from a few studies suggest there may be conditions under which community notification can be effective (Barnoski, 2005; Duwe and Donnay, 2008). And the one study that’s looked at the impact of a civil commitment program found that it reduced the overall four-year sexual recidivism rate by 12 percent (Duwe, 2014).      

Yet, because community notification and civil commitment are costly to operate (Duwe, 2014; Zgoba, Witt, Dalessandro, and Veysey, 2008), it is unclear whether the public safety benefits that may be yielded by these interventions exceed their costs. Moreover, among the 20 states that run civil commitment programs, several have recently been found to be unconstitutional.

So, are there interventions for sex offenders that the evidence shows are effective in reducing sexual recidivism, deliver a positive return on investment (ROI), and are actually constitutional? Currently, there are two interventions—sex offender treatment and Circles of Support and Accountability (CoSA)—that appear to meet these criteria, at least in part.

The most comprehensive meta-analyses have found that sex offender treatment reduces sexual recidivism. In the most recent meta-analysis, Lösel and Schmucker (2015) found that it lowered sexual recidivism by 26 percent and that the best outcomes were associated with programs that delivered cognitive-behavioral and multi-systemic treatment. Cost-benefit analyses have also shown that sex offender treatment delivers a ROI of $2.05 in Washington (Aos and Drake, 2013) and $3.11 in Minnesota (Duwe, 2013a).

The evidence on the effectiveness of CoSA is promising although still tenuous at this point. Research from Canada have shown that it significantly reduces sexual recidivism (Wilson, Cortoni, & McWhinnie, 2009), while a Minnesota evaluation showed that it lowered general reoffending (Duwe, 2013b). Moreover, the Minnesota study found that for every dollar spent on the program, it returned $1.82 in cost avoidance benefits (Duwe, 2013b).

More (and better) evidence is needed, of course, on what works with sex offenders, but there are a few areas where the paucity of research is particularly noteworthy. While the CoSA literature is small but growing, existing research has provided virtually no evidence on whether increases in penalties have contributed to the decline in sexual offending, including sexual recidivism, since the early 1990s. Moreover, in the context of residence restrictions, it is sometimes argued that these laws make it difficult for sex offenders to secure employment and stable housing, which, in turn, exacerbate recidivism outcomes. Unemployment and housing instability may very well increase recidivism risk for sex offenders. To date, however, the literature has not provided the evidence needed to support this view.  

Grant Duwe, PhD, is Research Director for the Minnesota Department of Corrections, where he forecasts the state’s prison population, conducts research studies and program evaluations, and develops recidivism risk assessment instruments.

REFERENCES

Aos, S. & Drake, E. (2013). Prison, Police and Programs: Evidence-based Options that

Reduce Crime and Save Money (Doc. No. 13-11-1901). Olympia, WA: Washington State Institute for Public Policy.

Barnoski, R. (2005).  Sex Offender Sentencing in Washington State: Has Community Notification

Reduced Recidivism?  Olympia, WA: Washington State Institute for Public Policy.

Drake, E. (2009). Does sex offender registration and notification reduce crime? A systematic

review of the research literature. Olympia, WA Washington State Institute for Public Policy.

Duwe, G. (2013a). What Works with Minnesota Prisoners: A Summary of the Effects of

Correctional Programming on Recidivism, Employment and Cost Avoidance. Minnesota Department of Corrections: St. Paul, MN.

Duwe, G. (2013b). Can Circles of Support and Accountability (COSA) work in the United

States? Preliminary results from a randomized experiment in Minnesota. Sexual Abuse: A Journal of Research and Treatment, 25, 143-165.

Duwe, G. (2014). To what extent does civil commitment reduce sexual recidivism?

Estimating the selective incapacitation effects in Minnesota. Journal of Criminal Justice, 42, 193-202.

Duwe, G., Donnay, W., & Tewksbury, R. (2008).  Does residential proximity matter?  A

geographic analysis of sex offense recidivism. Criminal Justice and Behavior, 35, 484-504.

Duwe, G. & Donnay, W. (2008).  The impact of Megan’s Law on sex offender recidivism:

The Minnesota experience.  Criminology, 46, 411-446.

Lösel, F. & Schmucker, M. (2015).  The effects of sexual offender treatment on recidivism: An international meta-analysis of sound quality evaluations.  Journal of Experimental Criminology. DOI: 10.1007/s11292-015-9214-z.

Meloy, M. L. (2005). The sex offender next door: An analysis of recidivism, risk factors, and

deterrence of sex offenders on probation. Criminal Justice Policy Review, 16, 211-236.

Wilson, R.J., Cortoni, F., & McWhinnie, A.J. (2009). Circles of support & accountability: A

Canadian national replication of outcome findings. Sexual Abuse: A Journal of Research and Treatment, 21, 412–430.

Zgoba, K., Witt, P., Dalessandro, M., & Veysey, B. (2008). Megan’s Law: Assessing the

Practical and Monetary Efficacy. Washington, DC: National Institute of Justice.

Sexual Harm in Virtual Worlds

Virtual world and virtual communities are an increasing social phenomenon. To say that they are without law is false, but also it is illogical to believe that virtual worlds are free from criminal acts even through these offences and their perpetrators may differ from offline, as well as other on-line, offending behaviour. Individuals who use the on-line environment to commit or orchestrate sexual harm  can use technology to assist them in committing physical sexual abuse as well as use of the internet to commit non-contact, virtual sexual violence (i.e., through the use of sexually abusive language, imagery, etc). Virtual sexual harm can be multifaceted ranging from inappropriate conversations, the grooming of potential victims for either a contact offence or the production of sexual abuse imagery, or to an on-line, virtual community, sexual offence (i.e., raping a character in game or in a virtual community) (Taylor and Qualye, 2003; Sheldon & Howitt, 2007). Global variations in the development of policies, practices, education, understanding and policing of online sexual harm are pertinent given its growing impact and prevalence (online grooming, online offending, online stalking and trolling). One area where the prevalence, policies, impact and criminal justice responses are still developing is that of sexual harm in virtual worlds.

Since the advent of the internet in 1950’s with the development of computers and the growth and use of technology has challenged the ways and means of communicating with others. Virtual worlds are one such avenue where people communicate on a social educational or business level with others via on-line virtual worlds.  There is no real agreement as to what virtual world means, but Bell (2008) argues that a virtual is a place where real people can enter via a computer and communicate with others. A virtual world is often seen as something that it unreal and which does not reflect the traditional approaches to life, but upon closer examination a virtual world does, more often than not, form close synergies with the real world. In the modern world many social interactions and milestones in peoples lives now take place on-line and in virtual worlds or on social networking sites such as FaceBook, Second Life, World of Warcraft; therefore these social interactions often provide perpetrators the opportunity to meet and gain the trust of a potential victim (Klimmt and Hartmann 2008).

Research shows that most users of virtual worlds are of a young adolescent male who are attracted to the hyper-masculine (macho) arena that can be found within these virtual worlds (Klimmit, 2011). Furthermore these young often males lack the socially honed personal interactions within social spheres with the hyper-masculine attributes they display leading to behaviours that would not normally be tried out in the real world being carried out in the virtual worlds (Klimmt 2011); therefore boundary testing free from social consequences. This reinforces the experimental, boundary pushing aspects of risk taking behaviour often found in youths as a consequence of their development rather than an indication of an ongoing, life course persistent pattern of offending behaviour. Therefore begging the question; are virtual worlds and live action gaming testing grounds for future offline offending or merely an exploratory arena for risk taking behaviour?

Individuals acting within virtual worlds can see their actions as being quasi-real and therefore believe that said actions do not fully adhere to the moral and ethical norms learnt, as well as reinforced, through normal social behaviour in the real world. Deviant behaviour (sexual and non-sexual) can often be justified and perceived as acceptable in this instance with perpetrators using cognitive distortions to justify their deviant behaviours arguing that “it’s not real”, “that people on these sites should know better and not take comments at face value” and “there are no real victims”. However, when these online offences (especially virtual offences in online environments against avatars or via comment boards) take place they are   consciously acknowledged by the victim who feels and believes that they are a real crime (Klimmt 2011). Although, there may not always be  a fear of physical violence in these cases the victim may have be psychologically traumatised by the event which could have result in a negative psychological reaction (anxiety, fear, distrust) and adverse behavioural response (isolation, withdrawal or aggression). Hence, the virtual world/on-line offence could affect their offline behaviour, especially if they believe their on-line and offline lives are firmly tied together and co-dependent.

As we known responding to sexual offending, in general, is a difficult line for the government and the Criminal Justice System agencies to tread, but this difficulty increase exponentially in respect to on -line sexual harm with a multitude of countries, corporations, laws and red tape involved. This begs the question of, how virtual worlds are regulated both inside and outside the virtual world.  General guidance and criteria relating to what constitutes a virtual world crime should be considered in the first instance before any legislation or regulation is handed down to regulate virtual words. Having said this, although regulating virtual world and communities is a difficult and complex task does not mean that the virtual world should be a place where criminal acts are condoned or go unpunished (especially those related to sexual harm), rather the laws must be considered in terms of the best fit for the environment in which it finds itself in.

Kieran McCartan,PhD, & Clare Jones, PhD (Associate Professor in Law - UWE, Bristol)

References:

Bell, M. W. (2008). Towards a definition of virtual worlds. Journal of Virtual World Research, 1:1.

Klimmt, C., & Hartmann, T. (2011). Mediated interpersonal communication in multiplayer video games: implications for entertainment and relationship management. In Konijn, E. Tanis, M. Utz, S. Barns, S. (eds) Mediated interpersonal communication. Routledge, New York, pp.309-330.

Klimmt, C. (2011). Virtual Worlds as a regulatory challenge, a user perspective. In Cornelius, K., & Hermann, D. (eds) Virtual Worlds and Criminality. Springer. Pp. 1-19.

  

Sheldon, K., & Howitt, D. (2007). Sex Offenders & the internet. Chichester: John Wiley & Sons, Ltd.

Taylor, M., and Quayle, E. (2003). Child Pornography; an Internet Crime. Hove and New York; Brunner-Routledge.