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BANISHING 'SEX OFFENDERS': HOW MEANINGLESS LANGUAGE MAKES BAD LAW

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Abstract

An essay on how the term "sex offender" is functionally meaningless, and invites policy responses that are out of step with the reality of sexual harm. These policy responses, in turn, hobble our efforts to reckon with sexual harm, foreclose accountability and redemption, and elide more effective approaches.
44
BANISHING ‘SEX OFFENDERS’: HOW
MEANINGLESS LANGUAGE MAKES BAD
LAW
Guy Hamilton-Smith*
I still think about you.
Our paths never crossed again, not since then. It’s been decades now, that
blue and beautiful day when you raped me.
How could a man let that happen to them? Those were the unspoken words
I heard for years.
You were bigger than me. Older. You’re still older, but I’m probably bigger
now. All grown up.
I was eight. A man in my own eyes. In yours, too.
There’s a lot about what you did that I don’t remember, but one I do: that
you told me to play pretend, though a different kind of pretend than the one
to which I had become accustomed: to pretend that you had come home from
work, as you pressed my face into the pillow of your bed.
The years went by. Sex terrified me for a long time. The body rendered a
geography that terrified me. Invisible scars that I bore, from which I would
find ways to recoil when someone stumbled upon them. I made those choices,
and those choices led to other choices, and to still others.
It’s not all your fault, either. My choices were mine.
Sometimes I fantasized about tracking you down, killing you. Some kind of
bargain I could win with a pistol and a lack of better ideas. Sometimes I
* Legal Fellow, Sex Offense Litigation and Policy Resource Center at the Mitchell Hamline
School of Law. I would like to extend my sincerest thanks to Erica Jansson and her team at The
Southwestern Law Review for their thoughtful and thorough work on this piece. Thanks also to
Joshua Hoe for help with the title. I also want to say how honored I am to have this work appear
alongside articles written by Catherine Carpenter and Janice Bellucci in particular. My work would
simply not be possible without theirs. We all stand on the shoulders of giants, though it is a rare
and precious thing indeed to be able to work with those giants. I am very grateful for this
opportunity.
2020] BANISHING 'SEX OFFENDERS' 45
forgot about you altogether. Mostly I minimized you. If I convinced myself
most of all that you hadn’t hurt me, then you wouldn’t have. That I could go
back in time, undo the things you did to me.
I was fine.
But was I ever?
Tennessee Williams once wrote that time is the furthest distance between two
places. As I write this, I am no more than ten miles from where our paths
crossedand yet, if that was on Earth, then here I write. Dispatches from
Mars.
Did you move away? Are you still here?
Are you happy?
Do you have a family that cares for you?
A job that fulfills you?
A God who loves you?
I hope that you do.
Did you hurt anyone else?
Did your father do to you the things you did to me?
I hope you wonder about me, in the same way I wonder about you.
You set this thing in motion. My life. Pain and beauty and heartache. Wins
and losses. Dumb luck. Strange as it sounds, I wonder if you’d be proud of
me.
Do I call you a rapist? A child molester? Am I a victim? Or a survivor?
What have I survived? What am I surviving?
I’ll call you by your name. Like you called me by mine.
Do you still think about me?
Life is rich with paradox. The things I reached for to save me were really
the things that were killing me. What I thought would bring me pleasure,
really brought me pain.
A fellow prisoner once observed, some thousand miles and hundred years
prior, that the actions of the common day made or unmade character, and I
had been unmaking mine for a long time.
In the stillness of pre-dawn hours, the electric light from the control center,
as it washed over my cell, was familiar to me.
46 SOUTHWESTERN LAW REVIEW [Vol. 50
Not unlike the many nights I sat in front of a screen, looking for ways to get
numb. Image after image, believing the next one would be perfect. That the
next one would save me. But more was never enough. Faces I’ll never forget.
Pain I will always be a part of.
I was told once, that prayer can sometimes just be an action. I came to bed
one night, laid next to my girlfriend who was fast asleep, and sobbed. I
wanted out, but didn’t know how. Too afraid, or cowardly.
God, whatever that might be, heard me. I’ve heard tale that sometimes it’s
a boat, or a fire. Sometimes, a half-dozen police officers.
We walked from my apartment down the block to the station. I contemplated
bolting into traffic, rather than face whatever was coming. They must have
read it on me, two of them moving to take up the sidewalk between me and
the street.
Through the doorway we approached, yet more paradox: things I was so
afraid would kill me, turned out to be the things that would save me.
The freest I ever felt was in a pair of handcuffs, in a windowless room,
answering the detectives’ questions.
I wish I could have feigned ignorance.
But that would have been a lie.
And I was so tired of lying.
Words carry with them enormous power. I remember the rooms full of men
and women who could not bring themselves to utter it. S.O. was the preferred
nomenclature.
Not unlike a job title, sex offender is supposed to be something that you do.
It connotes a present tense. Something that you are, unchangeable. That
you shower in the morning, and get dressed, and head out into the world to
commit crimes.
That was years ago.
This summer, my wife and I clutched one another, atop our battered couch.
She was fired from her job for her choice of husband. Paying the price for
the things that I did, long before we ever met.
Am I supposed to be a husband? A father? Children cannot choose their
parents. For that, I will always be sorry.
And so, you’re a part of my story. Me, a part of yours. And us, we’re a part
of many others.
2020] BANISHING 'SEX OFFENDERS' 47
Even writing this, I know, treads onto a minefield. We exist in an era of
#metoo, but does that extend to me? Can I find a way to have space to express
the things done to me, and to account for the harm that I have done? Can
both of those things live in me, at the same time? To coexist?
They have to.
There is no other way.
We seek to reduce humanity, in all its complexity, into moments in time.
Crystallized. Heroes we put on pedestals, or monsters we condemn to die.
Felons and presidents. Sex offenders and teachers. Victims and survivors.
I’ve met my heroes, and I’ve met many monsters. The truth is neither of those
things. The truth is yet more paradox.
I’ve been called a lot of things since we last met. Some kind. Some not. None
of them, or rather, very few of them, true.
It would be easy, I think, for me to just lay all this at your feet. To make you
the one responsible. Except that wouldn’t be true, either.
We all go through life with damage, and hurt, and painand then we all
decide what to do with that pain. I made my choices, and in so doing, I passed
my pain onto others.
You called me by my name.
The judge, too, called me by my name.
I’ll call you by yours.
Do you still think about me?
1
INTRODUCTION
As of 2018, there were nearly one million people in the United States
that state and federal law compelled to register as sex offenders.
2
Men,
women, and children, some as young as eight years old.
3
Names, pictures,
home (and sometimes work) addresses made publicly available to anyone
with an internet connectionas are the home addresses of anyone else who
1
. Adapted from Guy Hamilton-Smith, By Any Other Name, MEDIUM (Oct. 3, 2019),
https://medium.com/@guy.hamilton.smith/by-any-other-name-85efd0eb39f8.
2
. Andrew J. Harris et al., States’ SORNA Implementation Journeys: Lessons Learned and
Policy Implications, 23 NEW CRIM. L. REV. 315, 317 (2020).
3
. MALIK PICKETT ET AL., JUV. L. CTR., LABELED FOR LIFE: A REVIEW OF YOUTH SEX
OFFENDER REGISTRATION 2 (2020), https://jlc.org/sites/default/files/attachments/2020-09/
Labeled%20for%20Life%202020.pdf.
48 SOUTHWESTERN LAW REVIEW [Vol. 50
resides there.
4
If you picture a map of the entire country, there are nearly a
million little red dots marking homes, street corners, homeless encampments
that warn, ostensibly, of danger. Alongside these dots is an invisible cage of
local, state, and federal laws threatening arrest and felony prosecution for
sometimes small deviations from hyper-technical requirements that even law
enforcement often cannot understand.
5
Many of the people on these lists
have served their criminal sentences long ago, but are still required to comply
with rules not dissimilar from criminal parole, albeit with fewer
constitutional protections. The United States is the only country in the world
that does this.
6
There is a lengthy history of the American experience with registries-as-
crime-control devices,
7
but modern sex offense registries did not begin to
take shape until the early 1990s when high-profile and horrific crimes against
children by strangers captivated the attention of a nation still nursing a
hangover from the satanic child abuse panic of the 1980s.
8
The logic of
registries was one of containment: if we cannot ship our monsters off to an
island, we will do the next best thing, contain them within our countrya
sort of internal exile, or banishment. A panopticon made modern with
technology and statutes and myths and animus.
9
The gist of these first-generation registries was simply that people who
were convicted of a relatively small set of sex offenses would be required to
register with police because it was widely assumed that they would repeat
4
. See, e.g., Millard v. Rankin, 265 F. Supp. 3d 1211, 1214-15 (D. Colo. 2017) rev’d in part,
vacated in part sub nom. Millard v. Camper, 971 F.3d 1174 (10th Cir. 2020) (explaining what is
required on notification). Given the nature of sexual violence, oftentimes this can even include the
victims themselves, who then have to share the stigma and vigilante violence that can accompany
life on registries. See Cynthia Godsoe, #MeToo and the Myth of the Juvenile Sex Offender, 17 OHIO
ST. J. CRIM. L. 335, 351-52 (2020).
5
. See, e.g., Catherine L. Carpenter & Amy E. Beverlin, The Evolution of Unconstitutionality
in Sex Offender Registration Laws, 63 HASTINGS L.J. 1071, 1116 & n.313 (2012).
6
. See id.; HUM. RTS. WATCH, NO EASY ANSWERS: SEX OFFENDERS LAWS IN THE US 19
(2007), http://www.hrw.org/sites/default/files/reports/us0907webwcover.pdf.
7
. Which this article is certainly not intended to be a thorough accounting of. For that, see
Elizabeth Reiner Platt, Gangsters to Greyhounds: The Past, Present, and Future of Offender
Registration, N.Y.U. REV. L. & SOC. CHANGE 727 (2013) (detailing the history of registries for
crime control in the United States).
8
. The McMartin Preschool criminal case and its multiple trials gripped the nation as
allegations of satanic worship and molestation surfaced at this California school. The preliminary
hearing for this case was the longest run in California history. See Mike McPadden, What You Need
to Know About the Bizarre McMartin Preschool Satanic Sex Abuse Trials, ID CRIMEFEED (July 25,
2019), https://www.investigationdiscovery.com/crimefeed/crime-history/5-facts-you-need-to-
know-about-the-mcmartin-preschool-satanic-sex-abuse-trial.
9
. See, e.g., Patricia A. Powers, Making a Spectacle of Panopticism: A Theoretical Evaluation
of Sex Offender Registration and Notification, 38 NEW ENG. L. REV. 1049, 1072-75 (2004).
2020] BANISHING 'SEX OFFENDERS' 49
their crimes again and again.
10
Originally, this information was not supposed
to be publicbut rather, stay with law enforcement.
11
This rapidly changed
in the wake of the murder of Megan Kanka, who is the namesake of Megan’s
Law.
12
These laws became billed as an essential public safety tool: a way to
sate the right-to-know impulse that runs deep in our country. Indeed, wide
public dissemination of this information became a feature of these
registriesinflaming an already inflamed sense of stranger danger.
13
These new legal regimes spawned new legal challenges, a pair of which
worked their way up to the United States Supreme Court. In 2003, the Court
issued opinions in two consequential cases: Smith v. Doe
14
and Connecticut
Department of Public Safety v. Doe.
15
These cases considered separate
constitutional challenges to the lists: Ex Post Facto and Procedural Due
Process, respectively.
16
In Smith, the Courtover strong dissents, including one from the late
Ruth Bader Ginsburgdeclared that these registries were not punishment
but were in fact necessary civil public safety tools, relying in part on the
thoroughly debunked proposition that re-offense rates are “frightening and
high.”
17
In Connecticut Department of Public Safety, the Court found that
Due Process does not require the government to afford someone a hearing on
whether or not they are actually dangerous before putting them onto one of
these registries, which presumes they are.
18
The combined legal and practical impact of Smith and Connecticut
Department of Public Safety was thus to render the question of dangerousness
simultaneously irrefutable and irrelevant. While the stated purpose of these
laws is to protect the public (presumably, the public only needs protection
from individuals who are dangerous), their constitutional character is entirely
indifferent to the question of actual dangerousnessthus resulting in
something of a two-faced incoherence. On many state registry sites, you will
find a statement that the placement of people on these websites is not an
10
. See Does #1-5 v. Smith, 834 F.3d 696, 700 (6th Cir. 2016); see also Ira Mark Ellman &
Tara Ellman, “Frightening and High”: The Supreme Court’s Crucial Mistake About Sex Crime
Statistics, 30 CONST. COMMENT. 495, 506 (2015).
11
. See Carpenter & Beverlin, supra note 5, at 1093-94.
12
. See Doe v. Poritz, 662 A.2d 367, 372, 423 (N.J. 1995).
13
. See Paul Renfro, Sex Offender Registries Are Fueling Mass Incarceration And They
Aren’t Helping Survivors, JACOBIN (June 22, 2020), https://jacobinmag.com/2020/06/sex-
offender-registries-mass-incarceration.
14
. 538 U.S. 84.
15
. 538 U.S. 1.
16
. Smith, 538 U.S. at 89; Conn. Dep’t of Pub. Safety, 538 U.S. at 3-4.
17
. 538 U.S. at 102-03; see also Ellman & Ellman, supra note 10, at 496.
18
. See 538 U.S. at 7-8.
50 SOUTHWESTERN LAW REVIEW [Vol. 50
indication of dangerousness,
19
leading one to perhaps wonder why people are
placed on these lists to begin with.
In the wake of these 2003 decisions, state legislatures began something
akin to a race to the bottom in terms of how onerous, burdensome, and
punitive they could make their state registries since they were not
punishment.”
20
States eventually arrived at something not dissimilar in some
instances from open-air prisons. The Third Circuit recently ruled that
Pennsylvania’s sex offense registry was so onerous that it qualifies as
“custody” for habeas corpus purposes.
21
These new, second-generation
registries have been referred to as “super-registration schemes.”
22
Despite
the developments of the last seventeen years, some courts content themselves
to cite to Smith for propositions that have either long been debunked or no
longer bear any semblance to reality.
23
The last two decades have seen an expansion of offenses that require
registration. Juvenile registration. Lengthier registration periods. Death by
a thousand cuts. Given this, it is no surprise that the numbers grew.
24
This
enormous population of people has provided ready fodder for the media.
25
The Sixth Circuit recently described the experience with Michigan’s registry:
A regulatory regime that severely restricts where people can live, work, and
“loiter,” that categorizes them into tiers ostensibly corresponding to present
dangerousness without any individualized assessment thereof, and that
requires time-consuming and cumbersome in-person reporting, all
supported byat bestscant evidence that such restrictions serve the
professed purpose of keeping Michigan communities safe, is something
altogether different from and more troubling than Alaska’s first-generation
registry law. SORA brands registrants as moral lepers solely on the basis of
a prior conviction. It consigns them to years, if not a lifetime, of existence
on the margins, not only of society, but often, as the record in this case
makes painfully evident, from their own families, with whom, due to school
19
. See, e.g., id. at 5 (providing an example of Connecticut’s disclaimer).
20
. For an examination of the race to the bottom, see generally Catherine L. Carpenter,
Legislative Epidemics: A Cautionary Tale of Criminal Laws that Have Swept the Country, 58 BUFF.
L. REV. 1, 41 (2010) (describing the race to the bottom as a “race to the harshest”).
21
. Piasecki v. Ct. of Common Pleas, 917 F.3d 161, 163 (3d Cir.), cert. denied, 140 S. Ct. 482
(2019).
22
. Carpenter & Beverlin, supra note 5, at 1073.
23
. For an example of a court’s refusal to consider the impact of the internet or the harshening
and expanding laws, see Millard v. Camper, 971 F.3d 1174, 1184 (10th Cir. 2020) (citing Smith v.
Doe, 538 U.S. 84, 90 (2003)).
24
. See Carpenter & Beverlin, supra note 5, at 1081-82.
25
. For an examination of the increasing media coverage on sex offenders, see Emily
Horowitz, Growing Media and Legal Attention to Sex Offenders: More Safety or More Injustice,
2007 J. INST. JUST. & INTL STUD. 143 (2007).
2020] BANISHING 'SEX OFFENDERS' 51
zone restrictions, they may not even live. It directly regulates where
registrants may go in their daily lives and compels them to interrupt those
lives with great frequency in order to appear in person before law
enforcement to report even minor changes to their information.
26
As the Sixth Circuit indicated, registries have morphed into something
altogether different than their first-generation versions, and indeed even
expanded beyond sex offenses into other types of crimes.
27
Kansas puts
almost all of its citizens convicted of crimes on a public registry.
28
Pennsylvania, until recently, registered parents who were convicted of
custodial interference as sex offenders.
29
Utah has a white collar crime
registry.
30
Animal abuse registries are spreading as a means of reckoning
with animal abuse, despite opposition by groups such as the ASPCA.
31
Modern registries have continued to spawn pushback from grassroots
civil rights organizations, law professors, civil rights lawyers,
32
as well as
directly impacted people and their families.
33
Legal challenges continue to
be pressed, with mixed results.
Recently, I gave a presentation at a conference of one of these legal
organizations that formed in response to the proliferation of these laws. It
was attended by a mixture of peoplesome families, some parents, some
young people. Lawyers and therapists, but also just lay people. Civil
libertarians, bleeding hearts, people desperate for some kind of hope.
26
. Does #1-5 v. Snyder, 834 F.3d 696, 705 (6th Cir. 2016).
27
. Id. at 702-03; see also Rainer v. State, 690 S.E.2d 827, 827-28 (Ga. 2010) (requiring a
defendant convicted of robbery and false imprisonment to register as a sex offender).
28
. J.T. Perkins III as told to Maurice Chammah, Want to Escape a Criminal Past? Move to
Alaska (Like I Did), THE MARSHALL PROJECT (May 3, 2018, 10:00 PM), https://
www.themarshallproject.org/2018/05/03/want-to-escape-a-criminal-past-move-to-alaska-like-i-
did.
29
. Jo Ciavaglia, Convictions for Custody Interference Brand Pennsylvania Parents as Sex
Offenders, BUCKS CNTY. COURIER TIMES (July 23, 2017, 7:00 AM), https://www.buckscounty
couriertimes.com/news/20170723/convictions-for-custody-interference-brand-pennsylvania-
parents-as-sex-offenders/1.
30
. White Collar Crime Offender Registry, UTAH OFF. ATTY GEN., https://www.
utfraud.com/Home/Registry (last visited Nov. 1, 2020).
31
. Position Statement on Animal Abuser Registries, ASPCA, https://www.aspca.org/about-
us/aspca-policy-and-position-statements/position-statement-animal-abuser-registries (last visited
Oct. 27, 2020).
32
. Such as the many attorneys and professors and advocates whose tenacity and bravery
inspired me when I first began to get involved with this work.
33
. For an example of grassroots efforts bringing attention to the registries, see JUDITH LEVINE
& ERICA R. MEINERS, THE FEMINIST AND THE SEX OFFENDER: CONFRONTING SEXUAL HARM,
ENDING STATE VIOLENCE 89 (2020).
52 SOUTHWESTERN LAW REVIEW [Vol. 50
Before I launched into my presentation, I asked a question: How many
of you are here because you are a sex offender or you have a loved one who
is a sex offender? Most everyone raised their hand. I did, too.
It was a trick question. There is no such thing. I read confusion,
astonishment, and perhaps a couple who instantly understood what I meant.
We talk about sex offenders like they are something reala category of
person that can be meaningfully described with a label that tells us something
about who they are, what they do, how they spend their days. Those answers,
in turn, inform what society must do about them, to them, with them.
In this essay, I explore three aspects of not only how the term “sex
offender” undermines our ability to understand and respond to sexual harm,
how it undermines efforts at accountability, and deprives people of their
humanity, which undermines efforts to do the things that society ostensibly
wants from them: that is, to change, and to be accountable for whatever harm
they have caused.
34
To be sure, this is a difficult topic to write about, to read about, and to
think about. It is an area of work and law and culture that is rich with pain.
Sexual harm is something that has likely impacted most people’s lives, in one
way or another, at one point or another: either by way of having been harmed,
or having caused harm to someone else, or both. Perhaps it is one degree
removed for you: perhaps it was a loved one, a friend. If not yourself, you
probably know someone who has struggled to reckon with those scars.
My life is no different. The introduction to this essay is
autobiographical. I was eight years old when I was raped by a boy twice my
age. I was too young to understand why my parents were upset, when I told
them what happened. It would not be until much later that I would
understand that they were upset not at me, but on my behalf. It would not be
until much later that I would realize that the person who raped me had likely
been abused by his father.
I became very introverted for a time. I was bullied most days. I changed
schools. My room was a sanctuary, where nothing could hurt me, and where
I was in control. I felt safe. I was amongst the first generations to grow up
with technology and the Internet, and I very quickly encountered
pornography, where during my teenaged years I eventually got to the point
where I downloaded almost everything that I saw. Most of it was legal, but
some was not. In 2006, my girlfriend discovered those images on my
computer and went to the police. I was arrested. It was in an interrogation
34
. If any, as it is important to recognize that crimes are socially constructed and do not always
track harm. Teenagers sexting may well be committing “crimes” and are prosecuted for it, but is it
harmful? More profoundly, even when harm is considered, does our criminal legal system rectify
that harm or simply compound it?
2020] BANISHING 'SEX OFFENDERS' 53
room flanked by detectives that, for the first time in my life, I was able to get
really honest. My arrest, in many ways, saved my life. I am still friends with
the woman who turned me in. For anyone who is curious about more of the
details of my story, I did a Reddit Ask Me Anything (“AMA”) in 2017 that
is available for anyone to read.
35
I was extremely fortunate. I had family and friends and a lawyerthings
that I saw many people in criminal court did not have. Instead of going to
prison, I went to law school. While being a lawyer had never crossed my
mind before my arrest, the courtroom proceedings both terrified and
intrigued me. I wanted to be a public defender. I wanted nothing to do with
this area of the law. Fate, however, had other plans.
36
Of those million little red dots marking homes in neighborhoods or
industrial areas or under bridges or in vacant lots, one of them marks my
home. In Kentucky, I will be required to register as a sex offender for another
thirteen yearsuntil I am forty-nine years old.
37
Under federal law, or any
state compliant with federal law, my registration obligation expired three
years ago.
38
In Florida, I would be required to register for the rest of my
lifeand even after I die.
39
In Illinois, I would be referred to as a “sexual
predator” and required to register for the rest of my life.
40
In addition to being
an American, I am also a Canadian citizen, and if I move to Canada I would
be done with all of this tomorrow.
41
None of these determinations are made
on the basis of my dangerousness or lack thereofeither in the past or the
present. These labels, and the effects they impose on my life and the lives of
my family, are almost entirely arbitrary and untethered to any inquiry into
evidence or best practices.
35
. See generally Guy Hamilton-Smith (u/gphs), REDDIT (Oct. 20, 2017, 9:28 AM), https://
www.reddit.com/r/IAmA/comments/77n82n/my_name_is_guy_hamiltonsmith_i_am_a_law_scho
ol/ [https://web.archive.org/save/https://www.reddit.com/r/IAmA/comments/77n82n/my_name_is
_guy_hamiltonsmith_i_am_a_law_school/].
36
. I wrote more about how I found my way to this work here. See generally Guy Hamilton-
Smith, Dear Gay, MEDIUM (May 17, 2018), https://medium.com/@guy.hamilton.smith/dear-gay-
3f1e779293c4.
37
. See KY. REV. STAT. ANN. § 17.520(3) (West 2010 & Supp. 2019).
38
. 34 U.S.C.A. § 20915(a).
39
. FLA. STAT. ANN. § 943.0453(11) (West 2015 & Supp. 2020). Florida has been known to
keep people on their state registry, even after they die, for federal funding purposes. See Steven
Yoder, Florida’s Sex Offender Registry Proves Inescapable, THE APPEAL (Mar. 1, 2019),
https://theappeal.org/floridas-sex-offender-registry-proves-inescapable/.
40
. 730 ILL. COMP. STAT. ANN. 150/2, 150/7 (West 2007 & Supp. 2020).
41
. See Canada Criminal Code, R.S.C. 1985, c C-46, §§ 490.012, .013 (indicating that judges
may decline to require registration at all but may impose a registration requirement no longer than
years for minor offenses). The reasons why I decided to stay are complicated and another essay
that I have yet to writebut suffice it to say, I went to law school to fight for people who lacked
fighters, and here we are.
54 SOUTHWESTERN LAW REVIEW [Vol. 50
I include my story here because I have to. The work that I do is not just
policy work or scholarly work, but it is personal as well. Without it, this
essay is not complete. It is because I am, or at least can be called, a scholar
and an activist and an advocate and an ex-con and a survivor and a perpetrator
and a felon and a writer and probably a lot of other things, too. All of those
things are true, but are any of them the truth? Really, I am just a human
being. The facts of my childhood do not excuse those of my teenaged and
early-adult years. They are both simply facts of my story: things that
happened to me and things that I did. They both brought me into this work.
Accountability for harm that we cause others is an important part of
anything we might call justicenot just for survivors, but as I found, for
people who cause harm as well. Without accountability, justice becomes a
sham, a facsimile, hollow. As many survivors of sexual violence know, there
is no accountability when we consider sexual violence most of the time
formal or otherwise.
At the same time, a picture of justice that becomes unmoored from
considerations of proportionality and the opportunity for redemption
becomes little more than a poison that diminishes us all: survivors,
perpetrators, and our communities alike (including prisons, which are sites
of sexual violence themselves).
42
We waste an enormous amount of humanity in this country on this
project we call justice. There are 2.3 million people in prison,
43
an additional
4.5 million under formal criminal supervision,
44
and nearly 1 million people
on public-conviction registries which function loosely as open-air prisons
(and often send people back to actual prisons for failing to comply with
technical requirements).
45
As I wrote, my life was saved in many different ways. I was privileged
and lucky. What I hope to be able to articulate, and perhaps bring into being,
is a vision of justice that I glimpsed: that we can work for a justice that leaves
everyone better than how it found them, as opposed a decrepit thing that
contents itself to make all suffer in equal measure.
42
. For an example of sexual violence in prisons, see Jayla Burton, Prisoner-on-Prisoner
Sexual Harassment: The Prevalence, Severity, and Lack of Legal Recourse, 20 BUFF. J. GENDER L.
& SOC. POLY 91 (2012).
43
. Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, PRISON POLY
INITIATIVE (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html.
44
. Alexi Jones, Correctional Control 2018: Incarceration and Supervision by State, PRISON
POLY INITIATIVE (Dec. 2018), https://www.prisonpolicy.org/reports/correctionalcontrol2018
.html.
45
. David Feige, Shawna: A Life on the Sex Offender Registry, THE MARSHALL PROJECT
(Sept. 17, 2017, 10:00 PM), https://www.themarshallproject.org/2017/09/17/shawna-a-life-on-the-
sex-offender-registry.
2020] BANISHING 'SEX OFFENDERS' 55
PART I: THE WEIGHT OF WHAT THE WORLD BELIEVES
Felon. Drug dealer. Rapist. Murderer. State departments of correction
routinely refer to those in its charge as “offenders.”
46
It is baked into our
legislation and regularly appears in our headlines without much thought.
47
USA TODAY recently ran a story with the headline “Sex Offender Loses
COVID-19 Contract at VA After USA TODAY Asks Questions,” which
presumed to expose some sort of scandal, but there was no allegation that the
veteran who was the subject of the story had done anything wrong since
2006the date of his offense.
48
Across criminal justice reform efforts, there is widespread agreement
that we are too punitive, but only for what some refer to as the non-non-nons:
non-sexual, non-violent, non-serious.
49
However, most people who are in
prison are there for violent offenses.
50
Nevertheless, people in these
categoriesespecially sex offensesare carved out of criminal justice
reform proposals.
51
As Catherine Carpenter expertly observes, there is a raft
of this type of “all except for” legislation that excludes people with past sex
offense convictions for no reason other than animus.
52
As psychologist Gwenda M. Willis notes, ours is a tradition of calling
people the things “we don’t want them to be.”
53
Our language locates and
crystallizes people’s humanity in their worst moments: either the worst things
that they have done, or in the case of survivors, the worst things that have
ever happened to them. We signal that people’s value is either in the trauma
46
. Though, some are recognizing the incongruity of that and at least trying to adopt different
languageit is still fairly common. See Jessica Lee, Not Wanting to Offend, Washington State
Scraps ‘Offender’ Label for Inmates, SEATTLE TIMES (Nov. 5, 2016, 10:56 AM),
https://www.seattletimes.com/seattle-news/crime/doc-scraps-offender-label-in-attempt-to-end-
stereotyping/.
47
. See, e.g., 34 U.S.C.A. § 20911.
48
. Josh Salman, USA TODAY (Aug. 11, 2020, 3:00 AM), https://www.usatoday.com/in-
depth/news/investigations/2020/08/11/convicted-sex-offender-got-lucrative-government-covid-
19-contracts/3314931001/.
49
. Daniel Denvir, “Non-Serious, Non-Violent, Non-Sexual”: Fixing Our Mass Incarceration
Problem Means Getting Past the Easy Steps, SALON (Oct. 26, 2015, 4:00 PM),
https://www.salon.com/2015/10/26/non_serious_non_violent_non_sexual_fixing_our_mass_incar
ceration_problem_means_getting_past_the_easy_steps/.
50
. JOHN F. PFAFF, LOCKED IN: THE TRUE CAUSES OF MASS INCARCERATION AND HOW TO
ACHIEVE REAL REFORM 185-87 (2017).
51
. See, e.g., FLA. CONST. art. VI, § 4 (amended 2018), which excluded people with past sex
offense convictions and convictions for murder.
52
. Catherine L. Carpenter, All Except For: Animus that Drives Exclusions in Criminal Justice
Reform, 50 SW. L. REV. 1, 9 (2020).
53
. Gwenda M. Willis, Why Call Someone by What We Don’t Want Them to Be? The Ethics
of Labeling in Forensic/Correctional Psychology, 24 PSYCH. CRIME & L. 727, 727-28 (2018).
56 SOUTHWESTERN LAW REVIEW [Vol. 50
they have endured
54
or that they are valued as repositories of our anger and
anxiety for the trauma that they have inflicted. To the extent that we
undermine human potential to change, to grow, to healto move beyond
those worst momentswe ought to inquire why that is. That, for both
survivors and those who cause harm, we locate their humanity in something
other than the fact of their humanity. While we may be steeped culturally in
a tradition of hate-the-sin-love-the-sinner, we have enormous difficulty
separating the two.
55
This linguistic sleight-of-hand passes without much effort or thought.
You are a convicted felon. You are a sex offender. You are a murderer.
You are a survivor. These are true in one narrow sense: they are meant to
communicate a fact about a person’s past, however long ago. Whether or not
that has much bearing on who they are today really depends. Even people
with past sex offense convictions, who are adjudicated as “high risk” by
actuarial measures, are no more likely than you to commit a sex offense after
fourteen years in the community.
56
Yet our language, especially when we
consider people with past sex offense convictions, presumes that we can infer
from that past something that is true and meaningful about who a person is
today—and not just something, but that it becomes one’s central identity, the
most relevant thing about them.
This labeling game that we play gives us an idea of how people spend
their time and their role in society. What does a doctor do? A police officer?
A priest? Those job titles surely paint some sort of a picture.
What does a sex offender do?
This present-tense language invites a simple, brutal logic to our policy
responses: if we want to solve the problem of sex offenses, we simply get rid
of the sex offenders. We banish them from our physical spaces,
57
we banish
them from our digital ones as well.
58
We push them further and further out
into the wilderness
59
until they just disappear from view and become
someone else’s problem.
54
. As for the state, this is a survivor or victim’s value—it legitimizes the discharge of state
authority.
55
. Joshua Kleinfeld, Two Cultures of Punishment, 68 STAN. L. REV. 933, 1027-28 (2016).
56
. R. Karl Hanson et al., High-Risk Sex Offenders May Not Be High Risk Forever, 29 J.
INTERPERSONAL VIOLENCE 2792, 2807 (2014).
57
. Approximately half the states have some form of housing banishment laws which, despite
being untethered to any public safety benefit, remain extremely popular. See Corey Rayburn Yung,
Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders, 85 WASH. UNIV. L.
REV. 101, 103 (2007).
58
. Guy Padraic Hamilton-Smith, The Digital Wilderness: A Decade of Exile & the False
Hopes of Lester Packingham, 24 TEX. J. ON C.L. & C.R. 25, 30 (2018).
59
. Beth Schwartzapfel & Emily Kassie, Banished, THE MARSHALL PROJECT (Oct. 3, 2018,
7:00 AM), https://www.themarshallproject.org/2018/10/03/banished.
2020] BANISHING 'SEX OFFENDERS' 57
This picture of sexual harm, however, is one that is nearly the inverse of
reality. Most all sex offenses which are reported to authorities and ultimately
cleared by arrest are attributable to people who are not (or would not have
been) on a registry to begin with.
60
Stated differently, they are not recidivists,
they are not “sex offenders.”
61
Once people have been held to account for a
sexual offense, the vast majority of them do not go on to commit additional
offenses.
62
Most common forms of sexual harm emanate from the people in
our lives that we know, trust, sometimes even love, and depend on who are
unimpeded by registration laws.
63
By locating these little red dots on a map to be the source of sexual harm,
we elide its true nature. Thus, our framing of the very language that we use
shores up an understanding of sexual violence and gender hierarchies that
ultimately serves to perpetuate them:
64
Framing the central question about sexual violence in terms of managing
the risk of recidivistic violence presupposes that recidivism is one of the
central problems to be managed. It isn’t. The alternative is to put
recidivistic violence in its proper place, as a small part of the problem, and
dismantle the regulatory regime that has been built on the wildly
exaggerated myths about recidivism. To do this requires understanding that
we have developed such a singular focus on recidivism because it serves to
protect traditional gender hierarchies.
65
As I wrote above, accountability is important, but it is essential to
remember that these systems are applied to people who have already been
held accountable for an offense. Often, these individuals have exited the
criminal system entirely yet continued to be subject to complicated legal
regimes whose effect if not intent is to surveil and imprison.
60
. Jeffrey C. Sandler et al., Does a Watched Pot Boil? A Time-Series Analysis of New York
State’s Sex Offender Registration and Notification Law, 14 PSYCH., PUB. POLY, AND L. 284, 284
(2008) (explaining approximately ninety-five percent “of all sexual offense arrests were committed
by first-time sex offenders, casting doubt on the ability of laws that target repeat offenders to
meaningfully reduce sexual offending.”).
61
. Recidivism, in this context, means that a person’s criminal behavior is interrupted by some
sort of legal system involvement.
62
. See Ellman & Ellman, supra note 10, at 504.
63
. Perpetrators of Sexual Violence: Statistics, RAINN, https://www.rainn.org/statistics/
perpetrators-sexual-violence (last visited Oct. 27, 2020).
64
. ERIC S. JANUS, FAILURE TO PROTECT: AMERICAS SEXUAL PREDATOR LAWS AND THE
RISE OF THE PREVENTIVE STATE 89-90 (2006); Rose Corrigan, Making Meaning of Megan’s Law,
31 L. & SOC. INQUIRY 267, 271 (2006).
65
. Eric S. Janus, Preventing Sexual Violence: Alternatives to Worrying About Recidivism,
103 MARQ. L. REV. 818, 821 (2020).
58 SOUTHWESTERN LAW REVIEW [Vol. 50
We spend an enormous amount of resources
66
punishing people who
have already been held accountable for some crime instead of focusing on
primary prevention efforts and services for supporting both survivors as well
as services for people who have caused or might potentially cause harm (or
even investing into ensuring that people are held accountable in the first
place).
67
While this approach of exceptionally severe treatment seems justified to
man, it carries with it less obvious downsides. Because we are unable to see
people in our lives as the monsters who come to mind when we think about
sexual violence, we often do not think that they would be capable of such
acts. Thus, this is arguably one reason why many survivors are not believed
and, in turn, one reason why many do not report.
68
It is why those who do
are sometimes shunned by their community. Because people who commit
acts of rape and sexual assault are often well-liked, clean-cut, upstanding
members of the community.
69
They do not present as monsters, and indeed
can often present themselves as being guardians of sexual purity.
70
They are
66
. It is difficult even to grapple with how much money and manpower we are truly dealing
with. The costs of registries are not just in direct costs (e.g., maintaining the registries themselves),
but sending police to conduct “compliance checks,” and prosecuting those failures, increased
dependence on public assistance for families who are impacted, civil litigation costs, etc. Despite
federal SORNA having been law of the land since 2006, most states are not compliant, with costs
of coming into compliance far exceeding any loss of federal funds. See, e.g., What Will it Cost
States to Comply with the Sex Offender Registration Notification Act?, JUST. POLY INST. (Sept. 2,
2008), http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf.
67
. Janus, supra note 65, at 822; see also Corey Rayburn Yung, Rape Law Gatekeeping, 58
B.C. L. REV. 206, 210-11 (2017).
68
. LYNN LANGTON ET AL., U.S. DEPT OF JUST. BUREAU OF JUST. STAT., VICTIMIZATIONS
NOT REPORTED TO THE POLICE, 2006-2010, at 4 (2012), https://www.bjs.gov/
content/pub/pdf/vnrp0610.pdf.
69
. See, e.g., Janet McConnaughey, Ex-NFL Star Gets 18 Years for Drugging, Raping Women,
AP NEWS (Aug. 20, 2018),
https://apnews.com/9c4f7f73e18e4e2e810ee35269388a9d; Graham Bowley & John Hurdle, Bill
Cosby is Found Guilty of Sexual Assault, N.Y. TIMES (Apr. 26, 2018), https://nyti.ms/2HtzAoZ;
Susan Gilmore et al., 8 More Women Accuse Adams - Allegations of Two Decades of Sexual
Harassment, Abuse - and a Rape, SEATTLE TIMES (Mar. 1, 1992),
https://archive.seattletimes.com/archive/?date=19920301&slug=1478550.
70
. Mark Foley was the Republican co-chair of the United States House Caucus on Missing
and Exploited Children when he was forced to resign after it became known that he was exchanging
sexually charged messages with underage congressional pages. Why Did Foley Keep Child-
Protection Job?, CHI. TRIBUNE (Sept. 30, 2006, 3:00 AM),
https://www.chicagotribune.com/chinews-mtblog-2006-09-why_did_foley_keep_childprotec-
story.html; see also, Michael Gold, Anthony Weiner Released from Prison After Serving 18 Months
for Sexting Teenager, N.Y. TIMES (May 14, 2019),
https://www.nytimes.com/2019/05/14/nyregion/anthony-weiner-prison-
release.html?searchResultPosition=4; Kevin Diaz, Congressman Joe Barton, Hit With ‘Sexting’
Revelation Bows Out of 2018 Race, CHRON. (Nov. 30, 2017, 3:46 PM),
https://www.chron.com/politics/article/Congressman-Joe-Barton-hit-with-sexting-12395264.php
2020] BANISHING 'SEX OFFENDERS' 59
not the image that comes to mind when we think of “sex offender”—and this
incompatibility often lapses into a discourse that is centered on rape myths,
shame, and an understanding of sexual harm that is out of step with reality.
Stated differently: He could not be a rapist because he is not a monster.
Thus, she must be a liar.
This phenomenon also works on our internal lives and how we reckon
with our own conduct. Because the vast majority of people who are arrested
for acts of sexual harm are “not sex offenders,”
71
but nearly everyone hates
“sex offenders,” this appears to be the product of a not insignificant degree
of collective and individual cognitive dissonance. In other words, we view
anyone who would cause sexual harm to another as a monster, and no one
believes themselves to be a monster.
72
This binary view leaves little cultural room to have public-facing
discussions about accountability and the nuanced realities of sexual harm.
By framing sexual harm in terms of individual monstrosity, we also elide the
structural role of money and power in its facilitation.
73
A recent example of this sort of dissonance was seen in Supreme Court
Justice Brett Kavanaugh’s confirmation hearing.
74
Justice Kavanaugh was
rumored to be on President Trump’s
75
shortlist of Supreme Court candidates
in 2018. Christine Ford, a former acquaintance of Kavanaugh’s, then wrote
letters to the media and to Congresswomen Anna Eshoo detailing allegations
that, in the summer of 1982 while Ford and Kavanaugh were both high school
students, Kavanaugh drunkenly sexually assaulted her.
76
Ford had
1/8; Liam Stack, Dennis Hastert, Ex-House Speaker Who Admitted to Sex Abuse, Leaves Prison,
N.Y. TIMES (July 18, 2017), https://www.nytimes.com/2017/07/18/us/dennis-hastert-released.html.
71
. See Sandler et al., supra note 60, at 284.
72
. There are a lot of interesting things to say on this point, I think, about registries functioning
as a sort of purification ritualbut those are all also beyond the scope of this essay.
73
. Though beyond the scope of this essay, an apt and recent example of this can be seen in
the case of Jeffrey Epstein. See, e.g., Jodi Kantor et al., Jeffrey Epstein Was a Sex Offender. The
Powerful Welcomed Him Anyway., N.Y. TIMES (July 13, 2019), https://www.nytimes.com
/2019/07/13/nyregion/jeffrey-epstein-new-york-elite.html.
74
. See Ryan Thoreson, Women Will Pay for the Mess of the Kavanaugh Confirmation, N.Y.
TIMES (Oct. 7, 2018), https://www.nytimes.com/2018/10/07/opinion/who-will-pay-for-the-mess-
of-the-kavanaugh-confirmation-all-the-women.html?searchResultPosition=1. Or, another example
would be Supreme Court Justice Clarence Thomas’ confirmation hearing. See Julia Jacobs, Anita
Hill’s Testimony and Other Key Moments from the Clarence Thomas Hearings, N.Y. TIMES (Sept.
20, 2018), https://www.nytimes.com/2018/09/20/us/politics/anita-hill-testimony-clarence-thomas
.html.
75
. Who, himself, has had myriad allegations of having raped and sexually assaulted numerous
women over the course of his life. See, e.g., Transcript: Donald Trump’s Taped Comments About
Women, N.Y. TIMES (Oct. 8, 2016), https://www.nytimes.com/2016/10/08/us/donald-trump-tape-
transcript.html.
76
. Demetri Sevastopulo et al., Brett Kavanaugh Hearing: Key Moments, FIN. TIMES (Sept.
27, 2018), https://www.ft.com/content/b3b4f3ae-c24d-11e8-8d55-54197280d3f7.
60 SOUTHWESTERN LAW REVIEW [Vol. 50
independently passed a polygraph,
77
and after Kavanaugh’s nomination,
Ford’s allegations were made public.
Ford testified about the alleged assault
78
and noted that she did not tell
anyone of the assault until 2012 when she disclosed it during a therapy
session with her husband.
79
One of the more (unfortunately) memorable aspects of the hearing was
Kavanaugh’s response, which could be described as indignant. He
adamantly denied even the possibility that what Ford alleged transpired.
80
That she was making it up. A liar. Kavanaugh, in his own defense, submitted
statements from many women who had known him, attesting to his
character.
81
Much of the discourse occurred along this binaryeither that
Kavanaugh was a monster or that Ford was a liarleaving little room for a
more nuanced discussion of some important aspects of Ford’s allegation and
Kavanaugh’s response. Ultimately, Kavanaugh was confirmed,
demonstrating the efficacy of his chosen tactic, Ford’s testimony
notwithstanding.
82
There was little room to explore what I see as a third, perhaps likely
possibility given the testimony of both Kavanaugh and Ford: that Kavanaugh
did assault Ford, but that he does not remember it happening. For Kavanaugh,
in light of the evidence surrounding his prior drinking habits,
83
it seems
plausible that for him it was just another summer night of partying. But that
for Ford, it was something far different.
77
. Though, it should be noted that polygraphs are so unreliable as to be inadmissible in
criminal proceedings but are still routinely used as parts of “sex offender treatment” programs. See
CAL. SEX OFFENDER MGMT. BD., POST CONVICTION SEX OFFENDER POLYGRAPH STANDARDS 1
(2017), http://www.casomb.org/docs/CASOMB_Polygraph_Requirements_1-2017.pdf.
78
. Sevastopulo et al., supra note 76.
79
. READ: Christine Blasey Ford’s Opening Statement for Senate Hearing, NPR (Sept. 26,
2018, 5:48 PM), https://www.npr.org/2018/09/26/651941113/read-christine-blasey-fords-opening-
statement-for-senate-hearing.
80
. Sheryl Gay Stolberg & Nicholas Fandos, Brett Kavanaugh and Christine Blasey Ford Duel
with Tears and Fury, N.Y. TIMES (Sept. 27, 2018), https://www.nytimes.com/2018/09/27/
us/politics/brett-kavanaugh-confirmation-hearings.html.
81
. Tara Golshan, 65 Women Who Knew Brett Kavanaugh in High School Defend His
Character, VOX (Sept. 14, 2018, 11:50 AM), https://www.vox.com/2018/9/14/17860488/brett-
kavanaugh-sexual-assault-georgetown-prep-defense. Also, this plays on the notion that only people
who are monstrous commit acts of sexual harm.
82
. Sheryl Gay Stolberg, Kavanaugh Is Sworn in After Close Confirmation Vote in Senate,
N.Y. TIMES (Oct. 6, 2018), https://www.nytimes.com/2018/10/06/us/politics/brett-kavanaugh-
supreme-court.html.
83
. Amanda Arnold, All of Brett Kavanaugh’s Classmates Who Have Accused Him of Lying,
THE CUT (Oct. 5, 2018), https://www.thecut.com/2018/10/all-of-kavanaughs-classmates-who-
have-called-him-a-liar.html.
2020] BANISHING 'SEX OFFENDERS' 61
I say that this is possible because Kavanaugh’s own calendar seems to
corroborate that there was a party during the same timeframe that Ford
alleged, and that Ford was able to accurately identify others in attendance at
this party (as relayed by Kavanaugh’s calendar).
84
Despite Kavanaugh’s
Janus-faced testimony that he “sometimes had too many beers” but “never
blacked out” (seemingly as to preclude the possibility of an unremembered
assault), those who knew Kavanaugh indicated that they did not find this
position to be a credible one.
85
Is it possible that Kavanaugh, as a drunk teen, did assault Ford and
simply does not recall it? It seems so, given the evidence of his drinking. He
could not even admit that it was a possibility here, however, despite it
seeming to be the most obvious and humane explanation. Even assuming
that reading is the correct one, does it follow that he should suffer the
consequences for the rest of his life? As noted above, the United States does
place juveniles on public sex offense registries for acts not dissimilar from
what Ford alleged.
86
The law certainly does treat some teenagers and young
people who make mistakes much differently than others,
87
but whether that
is fair or good is another matter entirely. Does the answer to that inquiry then
change whereas herethere has been no accountability for that conduct?
And what would accountability look like here? Would it mean that
Kavanaugh should not be confirmed?
The point is not necessarily to suggest any answers to any of these
questions, but more that we lack a vocabulary to even have that conversation
at anything approaching a national level. The most probable (in my opinion)
and humane response would have been to allow for its possibility, to admit
that he could not say with certainty that what Ford alleged did not happen,
and that if it did happen, that he wanted to find a way to make amends to her.
But if that was the response, as opposed to casting Ford as little more than a
partisan operative, it seems likely that he would have not been confirmed.
Playing on familiar and deeply-entrenched myths and tropes about
sexual violence worked out for Kavanaugh, though worked to the detriment
of something more nuanced, and humane, and that comports with the reality
of almost all sexual harm: that people can cause harm in one instance, and at
the same time, live exemplary lives in other respects. It is the answer to the
84
. Li Zhou, Brett Kavanaugh’s July 1 Calendar Entry that Could Help Ford’s Case,
Explained, VOX (Sept. 28, 2018, 1:40 PM), https://www.vox.com/policy-and-politics/2018/9/28/
17914174/brett-kavanaugh-calendar-christine-blasey-ford.
85
. Arnold, supra note 83.
86
. Godsoe, supra note 4, at 350-51.
87
. Josh Rovner, How the Law Treats Kids Who Didn’t Grow Up like Kavanaugh, THE
ATLANTIC (Sept. 18, 2018), https://www.theatlantic.com/ideas/archive/2018/09/how-the-law-
treats-kids-who-didnt-grow-up-like-kavanaugh/570583/.
62 SOUTHWESTERN LAW REVIEW [Vol. 50
question of how Kavanaugh could have scores women attesting to his
character on one side, and Ford testifying on the other, and how they could
both be telling the truth.
PART II: THE WEIGHT OF WHAT YOU BELIEVE
Several years ago, a debate raged in my local paper’s opinion section
under the heading of something akin to Should sex offenders be allowed in
church? I was not a churchgoer, but it was around that same time that I had
a spiritual experience. I asked one of my friends in law school who I knew
was religious, and who knew my story, if she would take me to hers.
88
I went to a service with her, and afterwards, I asked the priest to lunch
so that I could tell him my whole story. So that I could ask if I could attend.
Over burgers and fries at one of those restaurants that does not stay the
same thing for more than a year or two, I told him about my conviction, my
spiritual experience, and how I would like to start attending church.
He looked at me with a “so what?” kind of expression on his face. He
seemed annoyed. He kept chewing.
Well, I’m just wondering if you’ll allow me to attend.
Why wouldn’t I?
Because . . . I’m a sex offender.
Without missing a beat he said, You’re no different than anyone else.
And so I went. I was not treated any differently from anyone else. I did
not have a chaperone. I was not given any special set of rules. If anyone was
assigned to surveil me, I could not tell. I worshipped. I prayed. I
volunteered. I struggled with faith and doubt. I still do and probably always
will. I became friends with people. I found community.
But I did not share my background with anyone else. I was scared. I
did not know what others would think. I tried to leave the past in the past.
While my employers and family and close friends knew, I was not public.
That all changed one week in 2014, when my ill-fated Kentucky bar
exam application made national news.
89
Most mornings I would stop and get
coffee before going into the office. That morning, I was staring at my own
88
. Thank you, Hannah.
89
. See Brett Barrouquere, Sex Offender Who Finished in the Top Third of His Law Class
Can’t Take the Bar, BUS. INSIDER (Jan. 6, 2014, 10:42 AM), https://www.businessinsider.com/guy-
padraic-hamilton-smith-fighting-to-take-bar-2014-1.
2020] BANISHING 'SEX OFFENDERS' 63
face staring back at me from the newsstand. I was trending on Fox News.
90
I was terrified.
My priest called me a few days after the story broke. He said he wanted
to give me a heads up: he had overheard people talking about my story, and
Sunday was a few days away.
“Nothing is more dehumanizing than the absence of human
companionship.”
91
Nelson Mandela wrote that about his time in solitary
confinement, and while I have never been in solitary confinement, when I
read it, it struck a chord deep within me:
In our hyper-connected age, we don’t need solitary to cut people off from
human connection. Being labeled a sex offender, you carry your solitary
with you, in your heart, and in your mind. When you put on your shoes to
go mail letters or buy milk from the store, when you go out on a date, or try
to find something to watch on Netflix, you may as well be on Mars. The
indelible electronic mark you carry threatens to turn your own thoughts
against you, unless and until you can find a way outside of the prison your
own mind begins to construct for you. Until then, you die slowly,
suffocating in shame.
92
To the extent that people believe themselves to be bad, or immutable, or
beyond redemption, or beyond human companionship, it is a torturous
condition in which to reside. To the extent that we tell people that the
only thing that they can ever be is a criminal, why should they try to be
anything but that?
Labeling theory is the idea that by saddling people with these labels
perhaps we bring about the very behavior that we seek to vanquish.
93
Research indeed shows that public notification schemes are actually
associated with an increase in re-offense rates, presumably by way of making
it impossible for people to successfully reintegrate.
94
My experience has
been that there is something uniquely cruel about a justice system that wants
you to reintegrate, but then actively opposes and undermines that same
reintegration. Once you come to believe that you are a sex offender, you
inflict your punishment on yourself.
90
. See Sex Offender Looks to Gain Admission to Kentucky Bar, FOX NEWS (Jan. 8, 2015),
https://www.foxnews.com/us/sex-offender-looks-to-gain-admission-to-kentucky-bar.
91
. NELSON MANDELA, LONG WALK TO FREEDOM: THE AUTOBIOGRAPHY OF NELSON
MANDELA 334 (1995).
92
. Guy Hamilton-Smith, On America’s Civil Death Penalty: The Sexual Offense Registry,
UNIV. CAMBRIDGE: COMPAR. PENOLOGY BLOG (2018), https://www.compen.crim.cam.ac.uk/
Blog/blog-pages-full-versions/guest-blog-by-guy-hamilton-smith.
93
. See HOWARD S. BECKER, OUTSIDERS: STUDIES IN THE SOCIOLOGY OF DEVIANCE 9
(1966).
94
. See J.J. Prescott & Jonah E. Rockoff, Do Sex Offender Registration and Notification Affect
Criminal Behavior, 54 J. L. & ECON. 161, 192 (2011).
64 SOUTHWESTERN LAW REVIEW [Vol. 50
You put on armor in the morning, not unlike putting on clothes. You get
ready for it. Sideways glances from neighbors and death threats and
everything in between. You are ready for the hate and the judgment. You
expect it. You can take it. You have no choice.
I went to church that Sunday, despite everything in me pulling me in the
other direction to stay home. To hide. Before I opened the door, the faces
of the people that I had come to know, had come to befriend, flashed through
my mind. I typically saw their faces as friendly, smiling, inviting. I pictured
them dark with anger, judgment, disgust. Open the door, brace for impact.
My immediate instinct was to turn and run, that I had made a huge
mistake. Instead, I stepped forward. I avoided eye contact, staring at the
floor, and made a beeline for my seat. There was something comforting
about it, just sitting it in, even if I believed it was going to be for the last time.
Even if it was going to be for the last time.
I closed my eyes and tried to steady my breathing. It was not long before
I felt two people sit next to meone on either side of me. I normally sat
alone. People were here, I figured, to throw me into the street.
We got your back.
I recognized her voice, even at a whisper. There were two blue-haired
matrons of this particular church, and in my ear was one of them. Opening
my eyes, the other was sitting on the other side. They flanked me. During
the peace, people kept coming up to me. I would extend my hand and get a
hug instead. People said I was in the right place. People told me that they
loved me.
I put on armor expecting to be cast out of that community, but instead I
encountered love that cut right through me. You put on all that armor because
you think it is going to keep you safe, but really it just keeps you trapped. I
broke down and sobbed. I still do not know much about God, but whatever
it was I experienced that day, I will never forget it and will always be grateful
for it.
I took a chance and showed up. In turn, that community took a chance
on me and showed up as well. In doing that, they gave me an opportunity to
become more than the worst thing I had ever done. I had been living a
torturous existence for years, my own solitary confinement.
They set me free.
2020] BANISHING 'SEX OFFENDERS' 65
PART III: GHOSTS
I write this in a very tenuous time. An era of COVID-19,
95
but post-
Breonna Taylor,
96
post-George Floyd,
97
and before the 2020 presidential
election. Despite registries disproportionately impacting people of color,
they have largely been left out of recent conversations around racial justice.
Defunding the police and reinvesting those resources into the community has
rocketed from being a fringe theory amongst abolitionists to the
mainstream.
98
Collectively, these proposals seek to reimagine things like community
safety and, in turn, justice. We have traditionally seen justice in terms of
years: the more punishment that we give to someone, the more justice that
we have achieved. The flip side of that coin is that we measure the value of
the harm that someone has suffered in those same terms. These harsh
punishments we justify by way of appealing to the pain of others: that, if
survivors have to suffer forever, why should not the people who cause harm,
as well? Justice has been a question of how to make all suffer in equal
measureto take oftentimes already broken people and break them more.
Registries grew out of horrific crimes that would leave only those made
out of stone unmoved. Names of dead women and children adorn legislation
we sign into law, and each represents broken families and uncountable
sleepless nights and rage and heartbreak and dreams the world will never
know, and that words can scarcely capture.
99
The early 1990s and 2000s saw a raft of hyper-punitive legislation
passed in the wake of tragic crimes we are only now beginning to reconsider
the wisdom of.
100
It is easier to talk about why registries are bad in cases
where it seems obvious that its application is unjust and illogicallike
95
. See Derrick Bryson Taylor, A Timeline of the Coronavirus Pandemic, N.Y. TIMES (Aug.
6, 2020), https://www.nytimes.com/article/coronavirus-timeline.html.
96
. See Richard A. Oppel Jr. et al., What to Know About Breonna Taylor’s Death, N.Y. TIMES
(Oct. 30, 2020), https://www.nytimes.com/article/breonna-taylor-police.html.
97
. See Evan Hill et al., How George Floyd Was Killed in Police Custody, N.Y. TIMES (Aug.
13, 2020), https://www.nytimes.com/2020/05/31/us/george-floyd-investigation.html.
98
. See John Eligon, Distrust of the Minneapolis Police, and Also the Effort to Defund Them,
N.Y. TIMES (Aug. 10, 2020), https://www.nytimes.com/2020/08/04/us/minneapolis-defund-
police.html.
99
. For a discussion of laws named after women and children, see Carpenter, supra note 20,
at 23-26.
100
. For example, the sisters of Polly Klaaswho was abducted and murdered in 1993
recently wrote an op-ed opposing a proposal in California to limit parole and more broadly
lamenting that Klaas’ legacy is tied to harsher criminal treatment with little benefit for community
safety. Jess Nichol & Annie Nichol, Op-Ed: Polly Klaas Was Our Sister. We Don’t Want Unjust
Laws to Be Her Legacy, L.A. TIMES (Oct. 18, 2020), https://www.latimes.com/opinion/story/2020-
10-18/polly-klass-legacy-unjust-laws.
66 SOUTHWESTERN LAW REVIEW [Vol. 50
placing children on registries. Recently, the mother of a young man on the
registry who clearly was no threat, and could not even apprehend the myriad
rules that would now govern his life, wrote an article titled “My Son is No
Sex Offender.”
101
It was well-written and heartbreaking, and resonated with
the idea that many people have: that of course her son is no sex offender, but
there are be real ones out there. Those people are the ones we need to register
and track and surveil and punishat least, that is how the thinking typically
goes.
Those people are the high-profile horror stories that stick out in people’s
minds and were more or less the genesis of modern sex offense registries.
But scratching the surface, things become both considerably more
complicated and, arguably, more tragic. Consider Jessica Lunsford.
On February 23, 2005, nine year old Jessica Lunsford was abducted from
her bedroom by a strangerJohn Evander Couey.
102
Couey lived less than
100 yards from Lunsford’s home, in a trailer that he shared with his sister
and others.
103
Couey went to burglarize the home and “acted on impulse and
took her.”
104
He kept her in his trailer for three days and sexually assaulted
her before panicking and burying her alive near the trailer.
105
Couey, who
had a 1991 conviction for a sex offense, was arrested and ultimately
confessed. He was convicted at trial and sentenced to deaththough he died
of cancer before the death sentence was carried out.
106
It was the proverbial worst-case scenario: every parent’s nightmare. The
question that it invited was an obvious and necessary one: what can be done
to ensure that this never happens again? Couey’s actions were horrific, and
so we “reached into [our] culture and pulled out the concept of evil and the
concept of a cage.”
107
Jessica’s Law
108
became the response not only in Florida, but across the
nation: tougher penalties, more onerous registration requirements. Jessica’s
father, Mark, became “an outspoken advocate for tougher penalties for sex
offenders who commit crimes against children, despite himself having a
101
. Carol Nesteikis, PERSUASION (Oct. 13, 2020), https://www.persuasion.community/p/my-
son-is-no-sex-offender.
102
. Answer Brief of Appellee at 1-3, Couey v. State, 21 So. 3d 812 (Fla. 2009) (No. SC07-
1636) (unpublished table decision).
103
. Id. at 3.
104
. Id. at 20.
105
. Id. at 20-21.
106
. See John Frank, Killer Couey Dies at 51, TAMPA BAY TIMES (Oct. 1, 2009),
https://www.tampabay.com/archive/2009/10/01/killer-couey-dies-at-51/.
107
. Kleinfeld, supra note 55, at 1026.
108
. See H.B. 1877, 2005 Leg., 107th Reg. Sess. (Fla. 2005).
2020] BANISHING 'SEX OFFENDERS' 67
“limited amount” of child pornography on his computer, somewhat
complicating that narrative.
109
We like to believe that people are all one thing or all another thing, but
anyone who has lived knows that this is not reality. People are a mixture of
things. Good and bad, and all of the things in between. If Couey is an
immutable monster, then of course the solutions are apparent: to kill, to cage,
to track. But then Jessica Lunsford is still dead. He was, after all, already
on Florida’s registry at the time of the killing. Far more unsettling is that
Couey, too, was a human being, and to reckon with this without denying the
atrociousness of his conduct provides new possibilities.
Couey’s attorneys put on mitigation for him at trial, and while it did not
spare him the death penalty, it did reveal much about his past. The
circumstances of Couey’s birth foreshadowed much of his life: he “was born
prematurely to a teen mother, who delivered him shortly after [Couey’s]
father pushed her from a moving automobile.”
110
Couey was physically,
sexually, and emotionally abused through much of his childhood.
111
As an
adult, he experienced hallucinations stemming from brain damage and
psychosis, and he had an IQ of 64.
112
He also had a significant history of
substance use, arrests, and convictions.
113
None of that excuses or undoes the pain he inflicted, the life that he stole.
My point in raising Couey’s humanity here is not to excuse or absolve him.
Rather, it is this: buried in a voluminous trial record is the fact that, before
Couey broke into the Lunsford home on that February night, he was in
Florida Department of Corrections custody where he sought mental health
treatment that he was never given.
114
If Couey had been given treatment, would Jessica Lunsford still be
alive? Going back even further, if Couey’s parents had the resources and
support they needed, might Couey’s trajectory have been different? If so,
perhaps Jessica Lunsford would still be alive. She would have been twenty-
five years old as I write these words.
These questions are unanswerable, but my point here is not to suggest
the answers but to say that these were questions never asked to begin with.
109
. According to one of the state prosecutors who prosecuted Couey, a “limited amount” of
child pornography was found on Mark Lunsford’s computer, though he was not prosecuted for it.
Rick Cundiff, Child Porn Found on Lunsford Computer, OCALA STARBANNER (July 19, 2005,
12:37 AM), https://www.ocala.com/article/LK/20050719/News/604234922/OS.
110
. Initial Brief of Appellant at 33, Couey v. State, 21 So. 3d 812 (Fla. 2009) (No. SC07-1636)
(unpublished table decision).
111
. Id. at 34-37.
112
. Id. at 37.
113
. See id. at 15, 37.
114
. See id. at 16.
68 SOUTHWESTERN LAW REVIEW [Vol. 50
Expanded mental health treatment for those in Florida’s Department of
Corrections custody was not one of the provisions of Jessica’s Law. There
are evidence-based models of re-entry and treatment that are effective, and
that do not rely on our models of monsters and cages. We could, and should,
askis it better to punish or to prevent?
Patty Wetterling, whose son Jacob Wetterling was abducted and killed
by Danny Heinrich,
115
was an early champion of sex offense registries.
Indeed, her son was the namesake of earlier legislation. Wetterling, in more
recent years, has come to oppose the current implementation of sex offense
registries.
116
In 2019, she gave the keynote address at a law school
symposium examining residency restrictions for people with past sex offense
convictions. Generally, Wetterling decried how ill-advised, bloated, and
inhumane the current system has become, and that it did not square with
Jacob’s inherent sense of fairness: “It’s amazing, what we’ve done, yet we
want [people on the registry] to succeed. We take away jobs, we take away a
place to live, we take away any kind of support, there’s no community
resources and often no treatment…I refuse to let the man who took Jacob
take away the world that Jacob knew.117
CONCLUSION
I have lived most of my life under either the weight of the things that
were done to me, or the things that I did. My experiences have left me with
mostly questions, ones that I have raised here and cannot easily answer.
I do think, though, there are some questions I can answer. Would it help
me to know that the person who raped me, himself a boy at the time, were
placed on a sex offense registry? That he would have a lifetime of struggling
with employment, and housing, and even finding community? That his future
family would have to suffer the consequences for things he did well before
he ever met them? That his children would get teased at school for having
the misfortune of not being able to choose their parents?
None of that helps me, and all of that appalls me. Perhaps there was a
time when that would have not been my answer. Perhaps I would have liked
all of that very much when I was angry. But I let go of my anger years ago,
and what option would there be to undo any of that?
115
. See In the Dark: Season 1, APM REPORTS., https://features.apmreports.org/in-the-dark/
season-one/ (last visited Oct. 31, 2020).
116
. See Jennifer Bleyer, Patty Wetterling Questions Sex Offender Laws, CITY PAGES (Mar. 20,
2013), http://www.citypages.com/news/patty-wetterling-questions-sex-offender-laws-6766534.
117. Patty Wetterling, Address at the Mitchell Hamline Law Journal of Public Policy and
Practice Symposium (Feb. 28, 2019), https://mitchellhamline.edu/law-journal/spring-2019-
symposium/
2020] BANISHING 'SEX OFFENDERS' 69
The things that would have helped me are things that I have accepted
that I will never receive, which our systems and languages do not incentivize.
An acknowledgement from him, and an apology, and to know that he worked
to changethat he did not harm anyone else. And that he had healed from
whatever was done to him.
Our criminal systems have little interest in such an arrangement. If I am
no longer broken and demanding recompense, then it can no longer justify
the righteousness of retribution on my behalf, nor the millions of dollars and
many careers whose business it is in carrying that retribution out. Likewise,
the government appears to have little interest in primary prevention as, if
crime is prevented, then there is no one to punish.
This arrangement is one that sees me, and him, and maybe you, locked
in some kind of eternal holy war. But does that serve either of us? Does it
serve you?
Despite only some of these questions being answerable, I still think them
important to ask, and I suppose that is why I wrote them. To at least have
some place to ask themto ask the universe, even with no expectation of an
answer.
And, if you are reading this, I forgive you. Just as I hope I am forgiven.
ResearchGate has not been able to resolve any citations for this publication.
Article
Full-text available
How can it be that in the era in which almost one million Americans are on sex offender registries—most of whom are publicly stigmatized on websites, banished from their homes, shunned from their jobs, prevented from uniting with their families and traveling internationally, forced into homelessness,1 all of which increases their risk for suicide, and shames their spouses and children, even if their offenses occurred long in the past—that the #MeToo movement would explode, revealing widespread sexual misconduct against women, by powerful men, protected by iconic institutions? How can we have had three decades of the most aggressive, “spare-no-expense” laws ostensibly designed to prevent sexual violence and, at the same time, observe the widespread failure of law enforcement agencies to take the simple step of analyzing sexual assault kits,4 as a first step in the investigation of allegations of sexual abuse? How can these phenomena co-exist? This Article argues that this incongruity is not an ironic coincidence, but rather a flaw that goes to the heart of our contemporary approach to sexual violence prevention. This flaw has, at its core, an almost obsessive focus on recidivistic sexual violence. Understanding this central characteristic will illuminate a framework for an alternative approach to our public policy on sexual violence, one in which the prevention of recidivism plays but a small role in a more comprehensive approach to sexual violence and its place in our culture.
Article
This study of Megan's Law contrasts scholarly narratives that describe and analyze sexual predator laws with a case study of implementation in New Jersey. A critical feminist perspective shows that Megan's Law employs a radically underinclusive notion of sexual violence that conflicts sharply with feminist arguments about the cultural and institutional roots of sexual violence. The law excludes many of the most common offenders from reach of the law, thus deflecting attention away from assaults committed by family and friends in favor of reviving stereotypes about deviant strangers. The most significant effect of Megan's Law is not to expand the power of the punitive state but to advance a political and legal interpretation of rape that undermines the basis for and gains made by feminist rape law reforms of the 1970s.
Article
In recent decades, sex offenders have been the targets of some of the most far-reaching and novel crime legislation in the U.S. Two key innovations have been registration and notification laws which, respectively, require that convicted sex offenders provide valid contact information to law enforcement authorities, and that information on sex offenders be made public. Using detailed information on the timing and scope of changes in state law, we study how registration and notification affect the frequency of sex offenses and the incidence of offenses across victims, and check for any change in police response to reported crimes. We find evidence that registration reduces the frequency of sex offenses by providing law enforcement with information on local sex offenders. As we predict from a simple model of criminal behavior, this decrease in crime is concentrated among "local" victims (e.g., friends, acquaintances, neighbors), while there is little evidence of a decrease in crimes against strangers. We also find evidence that community notification deters crime, but in a way unanticipated by legislators. Our results correspond with a model in which community notification deters first-time sex offenses, but increases recidivism by registered offenders due to a change in the relative utility of legal and illegal behavior. This finding is consistent with work by criminologists suggesting that notification may increase recidivism by imposing social and financial costs on registered sex offenders and making non-criminal activity relatively less attractive. We regard this latter finding as potentially important, given that the purpose of community notification is to reduce recidivism.
Frightening and High": The Supreme Court's Crucial Mistake About Sex Crime Statistics
See Does #1-5 v. Smith, 834 F.3d 696, 700 (6th Cir. 2016); see also Ira Mark Ellman & Tara Ellman, "Frightening and High": The Supreme Court's Crucial Mistake About Sex Crime Statistics, 30 CONST. COMMENT. 495, 506 (2015).
explaining approximately ninety-five percent "of all sexual offense arrests were committed by first-time sex offenders, casting doubt on the ability of laws that target repeat offenders to meaningfully reduce sexual offending
  • Jeffrey C Sandler
Jeffrey C. Sandler et al., Does a Watched Pot Boil? A Time-Series Analysis of New York State's Sex Offender Registration and Notification Law, 14 PSYCH., PUB. POL'Y, AND L. 284, 284 (2008) (explaining approximately ninety-five percent "of all sexual offense arrests were committed by first-time sex offenders, casting doubt on the ability of laws that target repeat offenders to meaningfully reduce sexual offending.").
means that a person's criminal behavior is interrupted by some sort of legal system involvement
  • Recidivism
Recidivism, in this context, means that a person's criminal behavior is interrupted by some sort of legal system involvement.
the-kavanaugh-confirmation-all-the-women.html?searchResultPosition=1. Or, another example would be Supreme Court Justice Clarence Thomas' confirmation hearing. See Julia Jacobs, Anita Hill's Testimony and Other Key Moments from the Clarence Thomas Hearings
  • See Ryan Thoreson
See Ryan Thoreson, Women Will Pay for the Mess of the Kavanaugh Confirmation, N.Y. TIMES (Oct. 7, 2018), https://www.nytimes.com/2018/10/07/opinion/who-will-pay-for-the-messof-the-kavanaugh-confirmation-all-the-women.html?searchResultPosition=1. Or, another example would be Supreme Court Justice Clarence Thomas' confirmation hearing. See Julia Jacobs, Anita Hill's Testimony and Other Key Moments from the Clarence Thomas Hearings, N.Y. TIMES (Sept. 20, 2018), https://www.nytimes.com/2018/09/20/us/politics/anita-hill-testimony-clarence-thomas .html. 75. Who, himself, has had myriad allegations of having raped and sexually assaulted numerous women over the course of his life. See, e.g., Transcript: Donald Trump's Taped Comments About Women, N.Y. TIMES (Oct. 8, 2016), https://www.nytimes.com/2016/10/08/us/donald-trump-tapetranscript.html.
Though, it should be noted that polygraphs are so unreliable as to be inadmissible in criminal proceedings but are still routinely used as parts of "sex offender treatment" programs
  • Demetri Sevastopulo
Demetri Sevastopulo et al., Brett Kavanaugh Hearing: Key Moments, FIN. TIMES (Sept. 27, 2018), https://www.ft.com/content/b3b4f3ae-c24d-11e8-8d55-54197280d3f7. 77. Though, it should be noted that polygraphs are so unreliable as to be inadmissible in criminal proceedings but are still routinely used as parts of "sex offender treatment" programs. See CAL. SEX OFFENDER MGMT. BD., POST CONVICTION SEX OFFENDER POLYGRAPH STANDARDS 1 (2017), http://www.casomb.org/docs/CASOMB_Polygraph_Requirements_1-2017.pdf. 78. Sevastopulo et al., supra note 76. 79. READ: Christine Blasey Ford's Opening Statement for Senate Hearing, NPR (Sept. 26, 2018, 5:48 PM), https://www.npr.org/2018/09/26/651941113/read-christine-blasey-fords-openingstatement-for-senate-hearing.
Kavanaugh Is Sworn in After Close Confirmation Vote in Senate
  • Sheryl Gay Stolberg
Sheryl Gay Stolberg, Kavanaugh Is Sworn in After Close Confirmation Vote in Senate, N.Y. TIMES (Oct. 6, 2018), https://www.nytimes.com/2018/10/06/us/politics/brett-kavanaughsupreme-court.html.
All of Brett Kavanaugh's Classmates Who Have Accused Him of Lying, THE CUT
  • Amanda Arnold
Amanda Arnold, All of Brett Kavanaugh's Classmates Who Have Accused Him of Lying, THE CUT (Oct. 5, 2018), https://www.thecut.com/2018/10/all-of-kavanaughs-classmates-whohave-called-him-a-liar.html.