One Sexual Offense Fits All?

It has been said, ““precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” [Weems v. United States]. However, punishment for a crime is not exclusive to the domain of incarceration. For most criminals there is the social stigma of being a criminal, which significantly limits their economic, political and societal power and influence. In the case of individuals convicted of sexual based offenses this stigma is typically enhanced. While nothing can be done about the subjective stigmas assigned to criminals by other individuals regardless of the type of offense, when one looks at the administrative burdens applied to individuals convicted of sex offenses versus other types of crimes, including murder, one wonders whether or not such exclusive and additional punishment is a violation of the Eighth Amendment of the Constitution.

After the period of incarceration for a sex offender has concluded the typical administrative burdens applied to that individual encompass restrictions on residency based on the surrounding area most notably they cannot reside within some fixed specified distance from common areas where children congregate like schools, daycare centers, parks, bus stops, etc; in some situations if such an area is constructed after the individual has established residency in a particular location the individual will be forced to move (some states have grandfather clauses that do not require a move some do not). In addition sex offenders must check in with local law enforcement when moving to a new address, changing employment, changing their legal name, etc., and depending on the state have to reaffirm these notifications after a certain period of time. Finally their names are listed on a public database for a period of time that may not be commensurate with their current relationship with their local environment. Basically their name could be on this list 8 years after the incident that resulted in their conviction and after moving to an entirely new community in which these individuals have lived without incident.

To understand these administrative requirements one must attempt to understand their philosophical origins. Most sexually based crimes illicit a guttural and emotional reaction typically leading to a characterization of repugnance, that strangely enough at times, exceed the disgust one feels towards murder or other higher level crimes. The original intent of the sex offender registration list appears born from at best a psychological compromise to provide a level of deterrence from recidivism by limiting the available opportunities that could lead the individual to repeat such criminal action or at worst as an additional punitive measure because it was not legally viable to incarcerate such an individual for a period of time typically demanded/anticipated by the public in reaction to the crime.

Unfortunately this compromise has evolved into a “one size fits all” punishment moving beyond the once applied standard judicial review and discretion. It tends to no longer take the nature of the sexual offense into consideration beyond broad “milestones”. For example all would agree that there is a significant difference between a 19 year-old male having sex with a consenting 16 year-old female and a 29 year-old male raping a 16 year-old female via a drugged beverage. While these differences are certainly reflected in the incarceration portion of the punishment they typically are not reflected in the administrative/societal portion of the punishment.

Basically while both individuals from the above example are technically sex offenders, the fact is that in most situations there is a tiered structure that is so broad in its administrative penalties that the level of judicial discretion is non-existent. In a sense the application of administrative punishment can be viewed as generally lazy, disinterested in determining the actual threat posed by the individual to the community instead labeling all as viable and credible threats.

There are two pertinent court cases pertaining to the issue of sex offense and the Eighth Amendment. First, in Graham vs. Florida the United States Supreme Court adopted the position that non-capital sentences for minors, adding to capital sentences held in Roper vs. Simmons, could be found unconstitutional under a proportionality review. This proportionality review can fall within two general classifications: 1) challenges to the length of a sentence dependent on the circumstances surround the case in question; 2) cases in which the Court implements the proportionality standard by certain categorical restrictions. The important element to Graham vs. Florida with regards to the above topic is that it set the precedence that categorical Eighth Amendment proportionality reviews could be applied to non-capital offenses, moving beyond the idea of “death is different”.1

Second, in Ohio v. Blankenship the defendant claimed that his classification as a Tier II sex offender pertaining to the crime of having a sexual relationship as a 21 year-old with a consenting 15 year-old with full knowledge of her age resulting in a conviction of a single count unlawful sexual conduct was cruel and unusual punishment. This claim was based on the administrative penalties associated with that classification (largely associated with having to register as a sex offender for 25 years) in contrast to the threat he provided as a possible future repeat offender.

The Ohio Court of Appeals ruled against Blankenship determining that existing legal remedies were not available because he was an adult when he committed the crime versus being a juvenile, thus a previous ruling (related to C.P., 131 concerning juveniles) was not applicable and that he was in fact a sex offender, thus the current legal structure in Ohio was applicable. Blankenship appealed to the Ohio Supreme Court, which held arguments in early March 2015; as of this posting it appears that no ruling has been made regarding this case, but a number of individuals believe that the ruling could go either way. So currently while it is legally and theoretically possible to find the administrative penalties associated with conviction as a sex offender unlawful via the 8th Amendment, no court has current done so.

Some could argue that there is an important distinction in statutory rape cases between an individual who has accurate knowledge of the age of his/her sexual partner versus having inaccurate knowledge through deception or misinformation. On this issue the point of willing culpability is irrelevant. For example there is no meaningful difference between a 19 year-old having sex with a 15 year-old where both parties are fully aware of the age of the other versus a 19 year-old having sex with a 15 year-old who has lied to the 19 year-old claiming an age of consent (18 year-old).

Such consideration would be akin to facilitating punishment based on whether or not an individual was aware that he/she was speeding. Whether or not the individual knows he/she is speeding is irrelevant to the fact that the individuals was speeding and violating that particular law. Furthermore the issue is not whether or not an individual who commits statutory rape or a similar low level sex-based crime is a sex offender. By law the individual is a sex offender, the issue is the assigning the appropriate punishment for the committed crime in all aspects, i.e. is it appropriate that an individual convicted of sexting receives the same administrative punishment as an individual convicted of rape?

An interesting point of fact pertaining to the validity of the administrative penalties associated with non-violent sex offenders is that the general recidivism rate for sex offenders has been demonstrated numerous times to be lower than any other crime except murder.2-3 An interesting point of contention could be made regarding this data between parties that agree with board mandatory classifications and parties that disagree.

Proponents of the administrative penalties could argue that this lack of recidivism is due to the harsh administrative restrictions placed on sex offenders heavily reducing the temptations and opportunities for recidivism. Opponents of these penalties could counter-argue that this lack of recidivism is because most sex offenders are not sexual predators, but simply do something stupid early in their lives that get them labeled and convicted as a sex offender through some basic non-violent sex-related crime like sexting a consenting individual or statutory rape with a consenting partner. While the truth is unknown, opponents are more likely correct than proponents because the data encompasses a time frame for some of these analyses where the harsher administrative penalties were not entirely applicable.

An important element to whether or not the 8th Amendment can be applied on this particular issue, especially with regards to the sex offender registry is whether the registration is viewed as punitive or civil; a characterization as punitive should increase the probability of relevance in applying the 8th Amendment versus a civil characterization. In most cases it is difficult to argue that the registry is not punitive in nature with the administrative hurdles that are assigned to those on the list, especially concerning the living restrictions. It stands to reason that if the only demand of the list was public access and an accurate name and address then it would be more civil in nature; however that is currently not the case.

Based on existing information it is difficult to argue that the sex offender registry serves an important role in protecting society from a large number of individuals convicted of sex offenses because those individuals are not a threat to society. Furthermore the additional elements of societal stigma and restrictions of freedom produced through association with the list could constitute a disproportional punitive response to the crime, especially when that association is not subject to judicial review, but mandated by a state or the Federal government. For example it could be argued successfully that for a vast majority of individuals who are convicted for the first time on a single count of a non-violent sexual-based crime, registration as a sex offender is not appropriate, therefore could be appropriately challenged as a violation of the 8th Amendment.

An interesting side note is that defining mandatory registration as a sex offender as a violation of the 8th Amendment may be necessary to properly apply justice even if it not legally appropriate. In short associating this scale of punishment to the 8th Amendment may be the only way to give politicians the political cover they need to continue to publicly assert their “tough stance” against sex offenders of all shapes and sizes, but also have appropriate punitive punishment based on the type of sexual offense. Basically while applying an analytical system of judgment regarding the threat potential of a sexual offender to “relapse” is logical and compliant with justice, forcing such a system on states through association with the 8th Amendment may be necessary due to political concerns.

However, while the courts have almost always been at the forefront for social change, would it be appropriate to make this association even if it were not valid? What type of slippery slope would that produce? On an even larger scale what can be done in a democracy when the majority is not interested in changing its opinion regardless of any arguments counter to their opinion? Overall when thinking from a non-emotional logical perspective mandatory registration for most single count sex offenders appears inappropriate, not surprisingly producing a path to properly appreciate that viewpoint legally is the more difficult problem.

Citations –

1. Shepard, R. “Does the punishment fit the crime? Applying eighth amendment proportionality analysis to Georgia’s sex offender registration statute and residency and employment restrictions for juvenile offenders”. Georgia State University Law Review. 2011. 28(2) Article 7. 529-557.

2. BOJ Recidivism of Sex Offenders Released from Prison in 1994, November 2003 http://bjs.ojp.usdoj.gov/content/pub/pdf/rsorp94.pdf

3. U.S. Department of Justice Criminal Offenders Statistics: Recidivism, statistical information from the late 1990s and very early 2000s.