TCS Daily

Sexile on Main Street

By Douglas Kern - February 1, 2007 12:00 AM

I don't want to sound soft on sex offenders, but...

There's no particularly good way to end that sentence, is there? It's hard to maintain your street cred as a die-hard law-and-order bad-guy-bashing conservative when you allow your little heart to bleed for the rights of society's most reviled criminals. Just as liberals feel compelled to insult George Bush before affirming the wisdom of any conservative proposal, so too do I feel compelled to assert that kerosene and industrial-strength wood-chippers figure prominently in my preferred solutions to the problem of sex torturers and rapist-murderers.

But detestation and revulsion don't always lead to effective laws. Consider the burgeoning legislative trend toward regulations that prohibit convicted sex offenders from living (or, in some cases, working) within a given distance of schools, day care centers, libraries, and other places where children are often found (hat tip: Sex Crimes, the blog to visit for a comprehensive, albeit left-leaning, discussion of this subject).

Seems sensible, doesn't it? Nobody wants perverts around kids. Make those guys live somewhere else.

It seems sensible - but it isn't.

Precisely what harm will be prevented through such regulation? Are hordes of convicted child molesters really sitting on their front porches, dangling brightly-wrapped pieces of candy for all the kids to see as they play in the school playground? Are America's sex fiends buying properties strategically located near day care centers in order to snatch the kids away when no one is looking? Because after all, if a child is kidnapped from a day care center, the homes of nearby convicted sex offenders would be the last place that the cops would look. Really.

I know of no empirical evidence to suggest that sex offenders who live near schools or day care centers are any more likely to re-offend than any other sex offenders. Why should proximity make a difference? We live in a highly mobile society, and even bad guys have cars. If Joe Stranger Danger wants to mess with kids at a school or day care center, he can just hop in his car and drive to whichever one he wants. (Hat tip: Lost In Lima Ohio- The Blog.) Barring that, he can stop by the nearest shopping mall or play gym and take whatever chances he dares to take. Barring that, he can simply choose to live in a neighborhood or apartment complex with hordes of children innocently playing outside. Barring that, he can do what most pedophiles do anyway: ingratiate himself to a gullible family with naïve kids, and then molest those kids wherever and whenever he can get away with it. A residency regulation will not prevent any pedophile anywhere from committing any crime he wants to commit. Period.

"Okay, Kern, maybe these laws aren't real effective," you grumble, "but they might prevent some kid somewhere somehow from being molested, so where's the harm in it? The only downside to these laws is that they inconvenience dirtbags who amply deserve to be inconvenienced, so why not jerk their chains a little bit and give our kids that added ounce of protection?"

Here's why: residency regulations don't enforce themselves. No probation or parole officer wants to waste his precious time figuring out if the address of every sex offender on his docket is the right distance from every proscribed building. Similarly, America's superior court judges and parole administrators cannot relish the thought of endless hearings for offenders whose only (recent) crime was mismeasuring the distance between their apartment and the apartment of the lady who baby-sits from nine to three. Time wasted on such tedium is time not spent clobbering the guilty. And what's an offender to do when a new school opens down the street? Must he move immediately? If so, can he sue the government for the loss he takes on the sale of his house, claiming that he suffered a government "taking?" Or should we "grandfather in" the sex offender's current living arrangement, thereby conceding that he isn't much of a threat?

Moreover, the de facto expulsion of sex offenders loses its appeal when expulsion-land is in your backyard. Many anti-sex offender residency laws are written so broadly that sex offenders are effectively excluded from cities and other densely populated areas. Additionally, most of the protected sites (schools, churches, etc.) are located near residential areas. Between residency restrictions, a limited supply of cheap housing, and the fact that most convicted sex offenders can't get high-paying jobs, many sex offenders will be compelled to live in a small handful of places in any given area. Do we really want to create pervert ghettoes - particularly given that low-income families will likely be living there, too? And if a sex offender can't find housing in the areas left open to him, he may well end up homeless. No one will (or should) weep too many tears over the plight of the homeless rapist, but isn't a homeless sex offender more likely to commit crimes, having nothing to lose?

The defects of the anti-sex offender residency laws reflect our broader inability to define how we want convicted sex offenders to live in our society. If we can't trust a particular caste of people to obey the rules of society, then we should lock those people away for life. (We're groping toward that outcome through civil commitments of sex offenders, but it's bizarre to use mental health regulations to implement a fundamentally moral determination.) Conversely, if we do trust sex offenders to obey the rules of society, then we should give them a genuine second chance, free from de facto exile and endless state scrutiny.

A third option is banishment. Banishment has been out of vogue for centuries; perhaps it's due for a comeback. If we want to remove convicted sex offenders from our society without necessarily punishing them indefinitely, perhaps we need to find somewhere else for them to live after their incarceration - somewhere far removed from decent people, and yet not a prison. What form could this banishment take? A distant island? A gated community? A well-compensated foreign country? I don't know - but anything is better than stashing them in cheap apartments in the middle of nowhere, locked in ineffective prisons of shame, menial jobs, and perpetual probation. Banishment surely runs afoul of myriad constitutional rights, but given the choice between banishment and dying in prison, might not many offenders waive those rights in order to improve their lives? I suspect that many sex offenders would welcome a civilized banishment, as it would offer them better access to mental health services, distance from their temptations, and a chance to lead a semi-productive life in a community where their crimes would carry no special stigma. Banishment would be an addition to punishment, not a substitute, but it would serve humane ends while protecting the public. What's not to like?

It's pointless to pretend that our society believes in the rehabilitation of serious sex criminals. Even if rehabilitative treatments show promise, who wants to make innocent people the guinea pigs for the experiments of therapists? Anti-sex offender residency laws reflect an incoherent compromise between our determination to release bad guys who've served their time, and our growing realization that serving time doesn't make bad guys any less bad. Until we candidly acknowledge that we don't want sex offenders in our communities at all, we'll keep passing dumb laws that split the difference between what we're supposed to think and how we really feel.

Somewhere out there, a convicted sex offender wants to know: "What do you want from me? I committed a sex crime; I was found guilty; I served my time. How now shall I live?" We owe that man an answer, not for his sake but for our own. Right now, our answer seems to be "Not near my schools! Not near my church! Not in my backyard!" Our answers involve a large quantity of "nots." We need better answers. And slap-dash, feel-good laws - like anti-sex offender residency regulations - don't move us any closer toward a solution.



Why are those laws/regs about where they can live constitutional?
I'm not saying I'm for these laws or against them, I'm just wondering how the govt can tell a US citizen that has done their time AND is off of parole where they can and cannot live?

Is there established case law on this?

I wonder the same. . .
. . .about all 'perpetual' punishments following end of sentence, such as loss of voting and second-amendment rights.

Way I see it, if an individual can't be trusted to own a gun or vote in elections, why are they loose on the streets period?

I like the banishment idea, though.

Broad use of the word sex offender
Keep in mind that a sex offender can be a teenager who had sex with his underage girlfriend, a streaker, a person who urinated in public, a father accused by his angry ex-wife, a teacher accused by a disgruntled student. The last two may not even by guilty, but getting a jury to find an accused child molester not guilty is virtually unheard of. Therefore these people take plea bargains to avoid an even lengthier prison sentence. Banishment of those who truly pose a risk to society is one thing. Banishment of a broad group of people is unamerican and unconstitutional. California has a law effective Jan. 1 that requires every sex offender to be evaluated before release from prison and if they are deemed high risk, which 95% are, they are subject to much stricter parole regulations and can be put in the state mental hospital. Society has the necessary protections in place and laws such Jessica's law are duplication and not needed not to mention unconstitutional. You wrote a very poignant statement as to why residency restrictions do not work, but banishment is not much different.

I suppose the nominal answer. . .
. . .is to take seriously the concept of "presumed innocent." This principle is so often discarded with sex offense, for a presumption of guilt.

I don't know of any way to actually achieve that, though.

Perhaps the real solution, at least for rape, is more extensive concealed carry and gun ownership, along with a cultural statement that yes, it is okay to shoot the ******* who tries to assault you.

Clearly these laws ARE unconstitutional.
Lake said above, if they are on the streets then the punishment should end.

Not to mention this article does point out that the laws are un-enforcable. In my city there are watch groups that check address and report violations. Then they complain when the people are not forced to move.

Its also hard to FIND places to live that will both allow them in and are far enough away from a school.

Keep them in jail if they can't be trusted. Whats the problem with that?

ignorant people...
We don't need those perverts in our cities... ship them on a plane and throw them out over the ocean even if they are 12year olds who impregnated their 13year old girlfriends...

I applaud the guy who shot two RSOs a couple of months ago. Too bad he got pushed into killing himself traumatizing a little boy that sat behind him.

damn straight!
how dare those born with chemical imbalances outside of their control be allowed to live in our cities after making a mistake, loosing many years of their lives for it, and submitting to a medication regime that mitigates their inperfections. obviously no one has ever been wrongfully convicted of a crime so the fact that your judical system is based on convicting the fewest possible innocents while never elemenating the possiblity entirely is irrelevent.

Let's fix this NOW
This is a problem that needs to be fixed and hopefully we are heading in the right direction. If we are going to let them out of jail they need to be trusted to work and live as law abiding citizens.
In Ohio our law states that RSO's cannot live within 1000 ft of a school but it dosen't say they can't be AT that school! We have a registered predator who keeps showing up in our schools but there is no law saying he can't be there.

Sex offender residence restriction
When I was 23 I had sex with a minor. That was about 11 years ago. I am now 33 years years old. At my age I have no interest in having sex with a minor. I am much more mature now and happily engaged to a wonderful women. She happens to have a 17 year old daughter. And the daughter has girlfriends around 16-19 years old. I have no sexual desire to any of these young women. I am madly in love with my finance. We get along great. However our daughter. I say our daughter as I feel like she is my daughter. Our daughter was horribly molested by her father when she was very young. Our daughter sees her therapist about 2 times a week to deal with her emotions. In addition my finance goes once a week and in addition I go once a week to group parenting sessions. My finance family and the therapist are away of my crime. My finance sold her home in August that she had up for sale. We have been looking for a home for the three of us to live in as a family. We have been looking for over a year now. Due to the recent sale of the home we now need to hurry up and find a home to purchase. However due to the recent passage of residence restriction we have to change gears. If we were to purchase a home we would not have to purchase a home that is outside of the 2,000 foot rule. However that would be about hour and half from our work, my daughter school that provides the special needs she needs and addition my daughter counseling sessions. We have been planning to purchase a home for over a year now and muy home sold in August. I have been off probation for over 5 years now. But all of a sudden everything has to change because of the residence restricted that was never in place is now in place. I am no danger to anyone and hold a steady job and have great credit and have great family connections. However all that has now changed because for some reason the people in my state feel I am now a danger. I have committed no new crimes. So why all of a sudden I have these additional restrictions put on me. The victim in my case is well over 18 now. Why all of a sudden my state thinks I will commit this crime again. For the love of god. I was 23 when my crime happened and I am now 33. What makes anyone think I would have sex with a minor at my age. If I wanted to have sex with someone 10 years younger then I am she would be 23. How is that a danger to anyone. However I am madly in love with my finance and the California prop 83 has harmed me and my family and has further caused a adjust for my daughter. Our attorney General Jerry Brown needs to be recalled because he can’t interpret the intention behind the author of the proposition.

Careful - you might be a Nazi
It is true that not all sex offenders are what most of us believe when we think offender - rapists, child molesters, etc.

My husband was falsely accused of molesting his son - I read all court documents - all of which pointed to his sister molesting the boy - yet he was told to take the plea bargain because he was "timing out" in the custody hearing in a different county - neither county communicated and the custody county wasn't interested in waiting for his trial results.

Banishment is almost a God send with the insanity of the public at this point. My family has already had harrassment & threats by neighbors who didn't know us and someone removed the lugnuts on my vehicle almost killing me, my husband and our three kids.

However, the only concern I have with banishment, is that I don't want MY children sentenced to banishment or to be subjected to those who actually would harm my kids. You must all realize whatever law you pass, not only affects the sex offender, it affects his wife and children as well. Those children do grow up and eventually become voting citizens. Be careful what you're teaching them.

keep child molesters and rapists in prison but get rid of this bad law
As a mother of two, I understand why people are concerned, scared and angry about this subject. But the author of this article, Sexile on Mainstreet, is right - this law is unenforcable and unfair. First of all, it does not distinguish between those that are truly a danger to society and those like this guy, who are not. It doesn't separate child molesters from the rest of the group, such as a guy who may have solicited an undercover police woman posing as a prostitute. I am not saying that guy doesn't deserve to be arrested, charged, adn if convicted, serve his/her time.

What is wrong with this law, besides the fact that the police, prosecutors adn courts DONT WANT IT because it IS unenforceable - is that it continues to punish those who are RSOs but who are not child molesters. Let's be honest - we want to punish the bad guys that's for sure. I have no problem keeping child molesters and rapists in prison forever, but I do have a problem treating all RSOs the same. They are not.

The 23 year old male or female who has consentual sex with his/her 17 1/2 year old boyfriend/girlfriend doesn't deserve to be lumped in with a pedifile - and until we fix that part of the registered sex offender system, we won't be able to move forward with real meaningful reform.

Just my opinion, which I offer with all due respect. Thanks for reading.

The law must be simple and enforceable... and enforced!
The main problem with the whole issue about sex offenders is the complexity of the law to look at all of these cases with the same lens.
Laws already exist to protect individuals against predators, sexual or not and the answer to keep them away from recurrence is to raise the level of risk they have when doing what they do. More jail time, jails less comfortable and no sex meantime, not even masturbation for all of them, including child pornographers, molesters and rapists. Not even if a heartbroken lawyer or social worker cries is inhuman to deprave someone from having any sex.
Sex can become a very bad habit and the only way to address the issue is restrain. Let them read books and watch movies, but no sexual content of any kind, not even kisses. Let them have a long, very long time to rebuild their minds to be productive and leave non consenting people or children along.

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