Sex registry a life sentence for those who pose no risk

Copyright 2019 (all rights reserved)

By Rudy Apodaca

(published as a commentary/guest column in the April 13, 2019 online editions of the San Antonio Express-News and the Houston Chronicle and in the April 14, 2019 print edition of the San Antonio Express-News )

     A not-so-uncommon story:

     The sexual assault victim―a girl of 16. She’s now 37 years old, happily married to the love of her life, and the mother of three children.

     The attacker―a man who was unaware his victim was just shy of the age of consent and had consensual sex with her. As a result, he had to register with the Texas Sex Offender Registry. He’s now married to his teenage sweetheart and is the father of the victim’s children.

     That’s right―the victim and her attacker got married soon after the girl’s mother, learning of the couple’s romance, reported the “assault” to prosecutors.

     Although he’s got a master’s degree, the attacker couldn’t find a teaching job because he was listed in the sex offender registry for life. His wife had to work multiple jobs to help support the family.

     Finally, an attorney working pro bono succeeded in setting aside the judgment, thus allowing his removal from the registry.

     Before that removal, the three children were ostracized at school after their father’s photo was found in the registry by students. The family moved many times after neighbors discovered the registry entry.

     This story isn’t a figment of my imagination; it’s true, as are many similar stories that occur as a result of the overreaching registry.

     Generally, in Texas, those convicted of a “sex crime” must register as a sex offender, usually for life. The offenses may involve minor crimes, consensual sex, or no sexual contact at all. These individuals and their families suffer negative consequences―they may have trouble finding employment, face restrictions on where they live, and experience social ostracization, threats and harassment.

     Ill-advised legislators, seeking popularity by pursuing legislation they believed was favored by their constituents, enacted the registry laws with good intentions. But these laws do more harm than good simply because they require an unnecessarily large number of offenders to register without assessing their risk of reoffending. That’s overkill.

     The legislature placed emphasis on the good the laws would do―protecting society and especially our children―and forgot to ask an important question―What bad would the laws do?

     Realizing the error of their ways, legislators in 2011 amended the laws, allowing a path to removal from the registry for a limited number of offenders if they demonstrated they weren’t “a continuing threat to society.” But these provisions too are fraught with problems and require fine tuning.

     Good laws, especially those involving regulating behavior to protect us, fulfil an important need. But before deciding how best to do that, it’s important to research not only the problem but solutions. We must study empirical evidence to assure that the proposed laws are on solid ground.

     Even well-intentioned laws, when imprudently applied, can create unintended but dire consequences that prove to be worse than the problems they’re supposed to solve. The Texas registry is flawed in that respect.

     In the United States, most states apply offense-based registries. They don’t make clear the risk level of the offender and the severity of the offense.

     Virtually no studies exist finding U.S. registries effective, prompting some professionals to call them pointless. Many even call them counterproductive, arguing that they even increase the rate of reoffense. Studies show that risk assessment programs continually outperform those based on the sexual offenses committed.

     Weighing the good and the bad of laws brings to mind a profound statement I ran across a long time ago―justice in a society is measured not by how it treats its best citizen but by how it treats its worst.

     As I’ve noted, a sizeable number of those listed in the registry shouldn’t be there because they aren’t likely to reoffend―they’re not a risk to anyone. They shouldn’t be grouped with our worst. They respect the law and would work hard to prove their worth to society.

     Registries, if I may borrow from Hawthorne’s historical novel, are a modern-day scarlet letter. The letter’s stigma and punishment never end―they’re there for life.

     All the while, we continue to destroy the lives of decent human beings who once went astray. This takes place little by little, each time a registrant applies for a new job or moves into a new neighborhood. Moving out of state isn’t an option, for each state’s laws apply to them as well.

     Admittedly, the far-reaching unfairness I address affects only a small segment of the public. Yet, the unfairness is real and unacceptable because most of the public is, first, ignorant of the kind of people affected by the all-inclusive registry laws and, second, doesn’t comprehend the significance of the studies involving registries and recidivism.

     The public wrongly views those required to register as simply paying the price for breaking the law. Painting with a broad brush, people see all registrants as sexual perverts, predators, and pedophiles from whom we need protection.

     This perception is wrong. It’s true that the registry includes deviants who may be prone to recidivism. The registry was created to monitor such predators. But a larger number of offenders are required to register because the laws are offense-based rather than risk-based.

     Besides, registration isn’t intended to be punitive but to ensure public safety. Registrants have already paid for their crime after conviction, and many are law-abiding individuals who, although having strayed before, will never repeat their past behavior. The “do the crime, do the time” mindset has no application in this context.

     I’d be remiss if I didn’t recognize a statewide, non-profit organization, Texas Voices for Reason and Justice, which advocates support for people required to register and their families.

     Texas Voices promotes laws and policies based on common sense and research through education and legislation and strives to educate and raise awareness about the ineffectiveness of the registry. Its members believe that it ostracizes and stigmatizes entire families without keeping the community safer.

     I offer a challenge to the Texas legislature―revisit the state’s registry laws and perform the tasks I’ve noted are essential to assure their requirements are a product of a good law, not a bad one.

     As an incentive, I remind legislators that the state already has in place risk assessment criteria elsewhere. Officials are far more discriminating there than the legislature was in determining the universe of the registry.

     An offense-based criterion without risk assessment flies in the face of the concepts we’ve previously developed in the penal system, such as rehabilitation, reform and deterrence, and those based on our reliance on the premise that we live in a society that believes in allowing second chances before scaring individuals for life.

     For years we’ve applied those concepts in deciding on sentencing, probation, parole and deferred adjudication. We also assess the offender’s remorse, recidivism generally and the likelihood that an offender will reoffend. Why not use these tools in deciding which offenders are required to register?

     This would allow law enforcement to focus on the actual offenders who really do threaten our safety. That’s a good thing, isn’t it?