So When Will We Have a Sex Czar?

I’ve just read a provocative new article by Corey Rayburn Yung entitled “The Emerging Criminal War on Sex Offenders.”  The article, available here, appears at 45 Harv. C.R.-C.L. L. Rev. 435 (2010).  Comparing the present political and legal landscape with the time period when President Nixon launched the War on Drugs, Yung argues that we appear close today to a “War on Sex Offenders.”  He identifies three defining characteristics of a “criminal war”: a marshalling of resources against the targeted offenders, particularly at the federal level (e.g., the creation of the office of the “drug czar”); the propagation of myths about the dangers of the targeted group; and the recognition of exceptions to the normal rules of law enforcement, particularly constitutional limitations, in order to stop the targeted group.

So, how does Yung see this playing out with sex offenders?

As to the marshalling of resources, Yung argues that passage of the Adam Walsh Act in 2006 was a decisive move towards federalization of sex crime policy.  Among other things, the AWA mandated uniform standards for state sex offender registries and provided for federal enforcement of registration requirements.

As to myth-making, Yung identifies the following:

  • Most sex offenses are committed by strangers (in actuality, over 90 percent of molestations are committed by someone the victim knows);
  • Sex offenders are incurable (in actuality, sex offenders have lower recidivism rates than non-sex offenders; the best study to date found that only about five percent of imprisoned sex offenders were rearrested for a new sex crime within three years of their release from prison);  
  • Convicted sex offenders are all alike (in actuality, many people required to register as sex offenders were convicted of quite minor crimes); and
  • Being raped or molested is a fate worse than death.

As to exception-making, Yung focuses particularly on the AWA and other sex offender registration laws, and the way that courts have stretched the Ex Post Facto and Commerce Clauses in order to uphold the laws against constitutional challenge.

Yung argues that the costs and apparent failure of the War on Drugs should make us cautious about declaring a War on Sex Offenders.  He identifies three problems in particular with a war on criminals:

  • Institutional and ideological inertia make it hard to back away from ineffective policies once “war” is declared;
  • Civil liberties are eroded; and
  • Widespread “collateral damage” is suffered by individuals swept up by overly broad laws or victimized by overly aggressive law enforcement practices.

Yung questions whether it is possible to abort the War on Sex Offenders, and I’m sorry to say that the possibilities he suggests do not appear very promising to me.  He argues that courts could raise insurmountable obstacles to a federally led War on Sex Offenders by enforcing Ex Post Facto and Commerce Clause limitations more rigorously.  He also suggests that states might opt out of the War, as some states have already chosen not to comply fully with the costly AWA requirements.  Finally, he suggests that if judges were given more discretion in sentencing sex offenders, their cases might be handled in a more restrained manner.  All of these “solutions,” however, presuppose that judges or state-level officials are considerably less prone to the sex-offender mythology (and, I would add to Yung’s analysis, to the particular visceral revulsion associated with sex crimes) than is the general public.  I don’t see much basis for optimism on that front.

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