Research on sex offender laws and their effects on people and society

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There are three ways that innocent people get to be treated as criminals:

• When accusations of sexual activity are assumed to be true without due process of law and they turn out to be false, innocent people suffer. See the SOLR report, False Accusations of Sex with Juveniles, for examples of this happening.

• Some people have become so fearful that they may see sexual abuse in perfectly innocent behavior, such as breastfeeding and taking naked baby pictures. See the SOLR report, Look Who’s a Sex Offender Now!, for examples, as well as Q&A # 5 and Q&A # 6.

• In the UK, police have been given authority to monitor and enter the homes of people who have not been convicted of any crime, but are suspected of having an attraction to children. See New Crackdown on Paedophiles, Daily Express (United Kingdom), July 30, 2007.

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Note posted on August 24, 2007, updated September 20, 2007, January 10, 2008, January 16, 2008.

Not necessarily. A number of legal scholars have expressed concern that basic human rights at the core of the United States Constitution have been eroded by recent actions of the U.S. federal and state governments. The following are some examples of concerns raised by reputable sources.

On rules of evidence

The Michigan state senate has passed, and the state’s governor has promised to sign, a bill that would alter the rules of evidence in criminal trials. The bill provides that in criminal trials for sexual abuse of a minor, a defendant’s prior convictions for similar acts would be admissible as evidence that the defendant is guilty of the offense charged in the current case.           The bill will likely soon become law in Michigan, and an increasing number of states have passed comparable statutes. These statutes are significant, for the decision to admit such evidence against a criminal defendant represents a sharp departure from the usual approach, an approach that reflects the concern that hearing about prior offenses could unfairly prejudice a jury against the accused. From Michigan's Proposed Law Admitting Prior Crimes in Child Sex Abuse Cases: Why It Has Broader Implications for the Law of Evidence by Sherry F. Colb, Writ, FindLaw, September 21, 2005

For a case in which this new law came into play, see Gratiot postal worker convicted of sex crime, Morning Sun (Mt Pleasant, Michigan), March 9, 2006.

On ex post facto laws

Assembly Speaker Sheldon Silver … said last week that the retroactive nature of the [Megan’s Law] bill [establishing a public sex offender registry] was “a clear flaw.” But today Mr. Silver said he had decided to support the bill anyway and would let the courts determine its constitutionality. With the Assembly Democrats feeling vulnerable on crime issues, particularly after [Republican governor] Pataki’s victory last November, Mr. Silver clearly faced intense political pressure not to oppose the bill. From Bill to Track Sex Offenders Nears Passage, New York Times, June 27, 1995.

See also Q&A # 38.

On the statute of limitations

See Q&A # 39.

On search and seizure

The seizure of electronics [by US Customs agents] has prompted protests from travelers who say they now weigh the risk of traveling with sensitive [corporate] or personal information on their laptops … [The executive director of the Association of Corporate Travel Executives said] “People are quite concerned. They don’t want proprietary business information floating, not knowing where it has landed or where it is going.” … “It’s one thing to say it’s reasonable for government agents to open your luggage,” said David D. Cole, a law professor at Georgetown University. “It’s another thing to say it’s reasonable for them to read your mind and everything you have thought over the last year. What a laptop records is as personal as a diary but much more extensive.” … [A] technology security expert … and … former federal prosecutor [said,] “Lawyers run the risk of exposing sensitive information about their client. Trade secrets can be exposed to customs agents with no limit on what they can do with it.” From Clarity Sought on Electronics Searches — U.S. Agents Seize Travelers' Devices — Washington Post, February 7, 2008

On privacy

Privacy no longer can mean anonymity, says Donald Kerr, the principal deputy director of national intelligence. Instead, it should mean that government and businesses properly safeguard people’s private communications and financial information. From Intelligence deputy to America: Rethink privacy, Associated Press, November 11, 2007

On general erosion of civil rights

America is in a state of constitutional crisis engendered by the president’s unprecedented expansion of executive power. The crisis is exacerbated by the 109th Congress’s failure to carry out its constitutionally mandated role to act as a check on the executive. From The 2007 State of Civil Liberties in America, American Civil Liberties Union, January 22, 2007

See also Safe and Free: Restore our Constitutional Rights, American Civil Liberties Union.

[T]he United States has enacted or begun to undertake new laws, policies, and practices that reflect the continuing failure of the U.S. to fulfill its obligations under the ICCPR [International Covenant on Civil and Political Rights] From Supplemental Submission to the Human Rights Committee, Human Rights Watch, June 2006

That report documents eleven problem areas, including secret detention, indefinite detention, and sentencing juveniles to life in prison without the possibility of parole.

The following list provides links to the official text of some key laws and bills that have been cited to be of concern.

• Military Commissions Act of 2006, US Congress, October 17, 2006 (S. 109-3930, Public Law 109-366). This law eliminated the right of aliens to habeas corpus (freedom from unlawful imprisonment)
• National Continuity Policy — National Security Presidential Directive 51 and Homeland Security Presidential Directive 20 — by George W. Bush, May 9, 2007
• Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq: Executive order by George W. Bush, July 17, 2007
• Protect America Act of 2007, US Congress, August 5, 2007 (S. 110-1927, Public Law 110-55)
• Violent Radicalization and Homegrown Terrorism Prevention Act of 2007, US Congress, October 24, 2007 (H.R. 110-1955 and S. 110-1959, Date passed in House)

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Note posted on August 24, 2007, major revision on May 11, 2008, updated January 28, 2009.

Yes. Ironically, rape is both under-reported and over-reported. This seemingly self-contradictory fact arrises from the following two circumstances:

• Under-reporting and false acquittals. A victim of rape may be ashamed to talk about the incident with anyone at all, let alone with the police. The victim may be ashamed of behavior that might have contributed to or incited the act. Even when there was no such behavior, many cultures treat rape victims with suspicion and disdain. Furthermore, if the victim is willing to talk about it, she or he may still be afraid of harsh treatment by police and in the court system. There also may be significant fear of retaliation by the rapist if the crime is reported. For these reason, many victims decide not to report the crime to police. Even after reporting a legitimate rape, victims may change their minds and decide not to cooperate with the investigation or not to testify in court, effectively blocking prosecuton of the crime. Still another factor is that rape can, depending on the circumstances, be difficult or impossible to prove, which can lead to false acquittals when juries don't have enough evidence to convict.

• Over-reporting and false convictions. A person may fabricate a rape scenario in order to retaliate against a lover, to cover up shame of having consented to sex, to fake an alibi for one's own criminal act, or to seek sympathy and attention.¹ Just as rape can be hard to prove, it can also be difficult or impossible to disprove, and juries will sometimes sympathize with an accuser telling a tearful story, even in the absence of evidence and even against a solid alibi of the defendant. In cases of rape by a stranger, the victim may unwittingly misidentify an innocent person as the rapist, especially is they are of different races.

These two sets of factors are entirely unrelated and they work against each other to make many accusations of rape very difficult to evaluate. To make matters worse, research on the subject is usually biased in favor of one side or the other. Proponents of victims' and women's rights tend to emphasize the incidence of under-reporting and false acquittals and belittle evidence of over-reporting and false accusations. Conversely, proponents of defendants' and men's rights are more prone to skew matters in the opposite direction. The fact is that both phenomena occur to a substantial degree and both need to be taken into account. For a balanced discussion of both the difficulties of and the need for impartial analysis, see The Elusive Numbers on False Rape by Dick Haws, Columbia Journalism Review, November 1997.

See the following references for information on false accusations and false convictions of rape:

• False Allegations of Rape by Philip N.S. Rumney, Cambridge Law Journal, April 2006 (Link is to abstract and buy link)
• Study Suspects Thousands of False Convictions, New York Times, April 19, 2004
• Excluded Evidence: The dark side of rape shield laws, Reason, February 2002
• Crying wolf — In a system that assumes children don't lie and women are victims, false allegations happen with alarming regularity and frequency — by Christie Blatchford, National Post (Canada), September 8, 2001
• Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, National Institute of Justice (US DoJ), June 1996
• False Rape Allegations by Eugene J. Kanin, Archives of Sexual Behavior, February 1994

See also Q&A # 22 for the related issue of false accusations of having sex with a juvenile, as well as the Note on under-reporting and over-reporting in the SOLR report, How Children are Harmed.
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1. False Rape Allegations by Eugene J. Kanin, Archives of Sexual Behavior, February 1994
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Note posted on January 28, 2009.

Yes, many. It’s impossible to know exactly how many, but by looking at cases where it has almost certainly happened, one gets the impression that it’s not rare.

(The question being answered here is specific to alleged sex with a juvenile. Regarding false accusations of rape, see Q&A # 21.)

In courtrooms across the United States and around the world, children are called to testify against their parents, teachers, neighbors, or strangers for having sexual contact with them. This is an unfortunate but often important burden to place on a child in order to protect other children from inappropriate behavior. But when the alleged activity never took place, or was done by somebody else, the coaxing or coercion of children to provide false testimony can only be a painful experience, especially when those children then carry the guilt of sending an innocent person to prison.

See the SOLR report, False Accusations of Sex with Juveniles, for a collection of over 150 cases of claims that innocent people have been falsely accused of sexually molesting children. Where possible, they are presented with links to court documents and reputable news reports and analyses to allow readers to determine for themselves if they believe justice has been served in these cases.
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Note posted on August 24, 2007, updated September 20, 2007, April 23, 2008.

Not necessarily. In what used to be confidential settings, mandatory reporting laws in the US now require doctors, therapists, teachers, other professionals, and, in some states, "any person" to report to the police any mention of past, present or possible neglect or injury of, or sexual activity with, a juvenile.

See Mandatory Reporting of Child Abuse and Neglect by Susan K. Smith, Smith & Moore, LLC, August 25, 2007.
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Note posted on January 10, 2008, updated January 28, 2009.

(Entry coming soon.)
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Note posted on August 24, 2007.