The “sex offense legal regime,” which has developed alongside mass incarceration over the last forty years, has failed.
US sex offender registries now list nearly one million people. Federal, state, and local ordinances prohibit convicted sex offenders from living within a certain distance of schools, parks, day care centers, and other spaces where children might congregate. In places like Miami–Dade County, these restrictions have rendered hundreds of individuals effectively homeless. Only by building and inhabiting makeshift encampments in sparsely populated areas can offenders comply with such residency requirements.
Following the passage of an especially punitive county ordinance — still on the books as of 2020 — a veritable refugee camp of registrants appeared under Miami’s Dolphin Expressway. Facing eviction and possible arrest, residents of the encampment moved to an underpass before encountering similar resistance and decamping in 2014 for an industrial area near Hialeah, a Miami suburb. In the summer of 2018, city and county officials — under pressure from area residents and business owners — applied the same punitive tactics to disband the encampment, once again displacing and dehumanizing its inhabitants. And the cycle remains unbroken: last June, registrants occupying a makeshift “colony” in Miami’s Brownsville neighborhood were forced to vacate.
Such measures might seem sensible to a broad swath of the American public. Indeed, as Judith Levine and Erica Meiners argue, sex offenders’ very humanity remains an open question. Yet these sorts of steps misrepresent the scope and nature of sexual harm in the United States, fueling mass incarceration while doing little to actually help survivors. At a time when demands to dismantle the police and unmake mass incarceration are reaching a fever pitch, we must target these myths and directly challenge the sprawling system of sex offender registration that they have produced.
Sex Offender Registration
Sex offender registration and surveillance rest on the flawed logic of “stranger danger.” By design, they locate sexual threats (especially those facing young people) outside of the idealized, dual-parent home and thus outside of the idealized family unit — even though about three-fourths of child sexual assaults are perpetrated by family members or acquaintances. (Only 18 percent of those who sexually assault children are “complete strangers.”)
Registration systems, in particular, deem certain places dangerous (on account of their inhabitants) while marking others as safe — sometimes implicitly and sometimes explicitly, by requiring offenders to live a certain distance away from schools, playgrounds, childcare centers, and other sites. But the vast majority of child sexual assaults go unreported, and many take place in ostensibly safe spaces at the hands of purportedly trustworthy individuals (like coaches, teachers, and priests) who have never been accused or convicted of misconduct and are thus not required to register.
Finally, the category of “sex offender” not only fails to account for the vast range of offenses for which one might be forced to register (from streaking to rape). It also implies an indelible, untreatable predatory impulse that must be vigilantly policed and suppressed, even though those convicted of sexual offenses have lower recidivism rates than those convicted of virtually any other offense.
Offender registries originated in the early 1930s, targeting individuals convicted of an array of crimes from embezzlement to drug offenses. The first sex-based registries emerged amid the “sexual psychopath” scares that began around 1935 and stretched through the 1950s. California was the first state to institute a sex offender registry in 1947, a moment when “police roundups of ‘perverts’” became an increasingly common way to discourage same-sex relations and to shore up the heterosexual, two-parent, male-breadwinner, home-owning family. Because this aggressive policing concentrated on “cruising” sites and other “gay” spaces — a symptom of the intensely antigay climate — men seeking sex with other men often found themselves subject to arrest, incarceration, institutionalization, public shaming, and registration.
For as many lives as these raids and roundups ruined in California and beyond, they paled in comparison to the explosion in sex offender registries in the 1980s, 1990s, and into the twenty-first century. Starting in the late 1970s, a series of high-profile cases publicized through a developing 24-hour news cycle brought sustained national attention to child kidnappings and exploitation. Politicians, bereaved parents, “victims’ rights” advocates, and others insisted that these cases signaled a grave and growing national problem. Some crusaders claimed that as many as fifty thousand children were abducted by strangers each year, though the actual figure was and remains somewhere around a hundred — if not lower.
These tragic yet isolated cases — including the 1979 Etan Patz kidnapping in New York and the 1981 abduction and murder of Adam Walsh (son of future America’s Most Wanted host John Walsh) — touched off a moral panic that Republicans and centrist Democrats alike cynically exploited. The Reagan administration used the issue of child safety to advocate for a more punitive juvenile justice system — triggering a staggering increase in juvenile incarceration rates. In 1979, 251 per 100,000 youth were incarcerated in the United States. By 1987, that number had soared to 357 per 100,000. It would continue to climb through the mid-nineties. These transformations, largely undertaken in the hopes of safeguarding white youth, disproportionately affected young black and brown people.
Through its enactment of the Missing Children and Missing Children’s Assistance Acts of 1982 and 1984, respectively, the Reagan administration also established a “missing child” folder in the FBI’s National Crime Information Center and created the National Center for Missing and Exploited Children. The private sector, with encouragement from Reagan, raised awareness about the “stranger danger” scourge by placing missing children’s pictures on milk cartons, energy bills, and direct-mail coupons. Reagan himself appeared on a broadcast of NBC’s made-for-television movie Adam — based on the Adam Walsh case — to read the names of missing children as their pictures flashed on the screen.
Such imagery also undergirded the draconian federal sex offender legislation of the 1990s. Carrying the names (and faces) of missing, exploited, and slain white children like Jacob Wetterling, Polly Klaas, and Megan Kanka, laws passed in 1994 and 1996 required all states to launch and maintain sex offender registration and community notification systems. These measures — two of which were included in the 1994 Violent Crime Control and Law Enforcement Act — allowed Bill Clinton to demonstrate his “tough on crime” bona fides and to play the role of paternal protector.
George W. Bush built upon this machinery and hitched the project of child protection to the global war on terror. “Just like we’re hunting the terrorists down one at a time,” Bush indicated in 2002, “we’re hunting these predators down one at a time too.” The idealized white child would benefit not only from the campaign to root out “terrorists” in the Middle East, the president and his acolytes insisted, but also from Bush’s efforts to bolster and safeguard the “traditional family.” “As we take steps abroad to make the world a safer place for all,” Bush explained upon signing the 2003 PROTECT Act (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act), “there are important steps we can take at home to make America a safer place for children.” Through the PROTECT Act, President Bush federalized the woefully ineffective AMBER Alert system, and with the 2006 Adam Walsh Act, further expanded and fortified sex offender registration systems.
His professed interest in criminal justice reform aside, Barack Obama did nothing to undo the regime of sex offender registration and banishment. In his last year in office, he signed the International Megan’s Law, which requires those convicted of certain sexual offenses against minors to carry passports marked with “unique identifier[s]” and to “provid[e] advance notice of intended travel . . . outside the United States.”
As a result of all these developments, over nine hundred thousand people (a population comparable to that of Jacksonville, Florida) appear on sex offender registries in the United States today. Despite growing calls for “reform” across the political spectrum, America’s punitive sex offender regime “help[s] keep the system bloated,” Roger Lancaster writes. And while some scholars and activists, as well as organizations like Women Against Registry and the National Association for Rational Sex Offense Laws, have pushed for dismantling the registry, few others seem willing to criticize the United States’ hyper-punitive approach to dealing with those convicted of sex offenses.
Given the social death to which those deemed sexually dangerous are subjected, this strategy might seem reasonable and shrewd. But as Brian Goldstone notes, “real, transformative change . . . will only occur when we stop perpetuating the contrast, so endemic to our current discourse, between ‘good’ and ‘bad’ criminals — between those deserving of basic dignity and second chances, on the one hand, and those monstrous ‘super-predators’ (to use Clinton’s infamous term) who can be left to wither away and die.”
None of this is to say, of course, that parents and caretakers shouldn’t seek to protect and provide for their dependent children. And none of this denies or diminishes the sexual harassment and harm that so many endure.
But sex offender registries do nothing to prevent abuse or reduce harm. Studies have found that sex offender registration protocols and other laws have “no discernible impact on the incidence of sex crimes.” In fact, the “sex offense legal regime” actually perpetrates its own violence.
A society cannot legitimately claim to detest sexual violence when it builds and maintains a system that perpetrates such violence. And a society cannot legitimately claim to value the protection of its children when millions of young Americans go hungry and confront abject poverty daily.
Only by dismantling the registry and, in its stead, assembling a more equitable, less punitive society — devoid of the racism, sexism, homophobia, transphobia, and material deprivation that enable sexual violence, immiserate young people, and encourage children to run away from home — can we actually end the phenomena of sexual harm.
If we allow one segment of the carceral and surveillance states to metastasize, we tacitly acknowledge and legitimate the interwoven projects of hyper-policing and mass incarceration. Technologies and language deployed in the service of caging, monitoring, humiliating, and incapacitating those deemed sexually threatening can and will be used against those deemed dangerous or subversive or transgressive in other ways.
For the two million people incarcerated in our country’s jails and prisons, the 4.5 million on probation or parole, the millions who have lost family members and friends to the carceral machinery, the tens of millions subject to constant policing, harassment, and dehumanization, and the millions who have yet to be ensnared in the web — this should be a terrifying prospect.