It already passed the House. And the Senate. It’s now in conference committee, working out the kinks between the two, before it goes to President Obama for his signature. And had it not been for the careful eyes of David Post at Volokh Conspiracy, it might have slipped through unnoticed until havoc was wreaked.
The name of the law gives away the problem. It’s called the International Megan’s Law, drawing upon the rape and murder of Megan Kanka to create all manner of restrictions for sex offenders, to protect the children. This iteration is marketed to the public as the solution to human sex trafficking and sexual tourism, both horrible and offensive crimes with the proviso that they mean what they say, as opposed to the use of sex trafficking as a euphemism for all manner of prostitution, including the voluntary decision of women to be sex workers.
Elizabeth Nolan Brown explains what this law does:
Dubbed “International Megan’s Law,” the measure—sponsored by Rep. Chris Smith (R-N.J.)—says the secretary of state must impart a “visual designation” in “a conspicuous location” on the passports of all “covered sex offenders.” Covered sex offenders include anyone whose victim was a minor.
What could be bad about alerting the world, by scarlet letter on a passport, that its holder is a “sex offender” whose victim was a minor?
This is where people start to lose sympathy—for better or worse, most can’t muster much concern for the constitutional rights of rapists and child molesters. But because of our overbroad sex-offender registry requirements, “covered sex offenders” may include teens who text each other explicit photos, men who offer to pay for sex with someone who is—known or unbeknownst to them—under 18, and statutory rape cases where the the age disparity between offender and victim is small and the relationship consensual. These people are already required to register with state and federal officials as sex offenders, thereby subjecting them to rules about where they can live, work, etc. Now they may face a lifetime of trouble traveling and perhaps even be prevented from entering certain countries entirely.
David Post likens it to the yellow star once required to be worn on the garments of Jews. The difference, however, is that people of otherwise good conscience will not support this law because they hate people of a religion, but because they believe they are protecting children from harm by sex offenders. Megan Kanka died so another child won’t have to. At its most simplistic level, the intentions are good.
But as one scratches, just a little, it becomes clear that the pitch used in enacting laws predicated upon fears and tears cannot bear up to scrutiny. As Brown notes, the sweep of sex offender laws, even with the limitation of minor victims, has overtaken anything remotely resembling the horror of what happened to Megan Kanka.
To sell these laws, proponents pound on the worst case scenario and ignore, or deny, the collateral damage to the undeserving. The marketing pitch, “don’t you want to save the next Megan Kanka?” is used to appeal to emotion so that no thought is given to the kids who sext, or the 18-year-old who has sex with his 17-year-old girlfriend.
But isn’t it worth it? Isn’t the harm done to Megan Kanka far worse, far more important, than the unintended consequences. So what if the unintended are harmed along with those disgusting pedos? To stop the horror, some will have to take one for the team!
Except the premise belying the law is wrapped up in the myth that sex offenders are wild animals who can’t stop themselves from molesting, raping, murdering little girls. It’s not enough what they did, but that they be vilified by creating and spreading a lie to make good people hate them even more than they deserve.
Beyond the injustice of it, there’s no evidence that the law—applied broadly or even only to those accused of the most serious sex crimes—would actually thwart international human trafficking or sex tourism, the stated goal of the bill according to Rep. Smith. For one thing, the passport requirement would only apply to sex offenders done serving their sentences, obviously.
But we have little reason to think most of these people will reoffend. As Reason contributor Lenore Skenazy points out at the New York Post, “the general belief is that sex offenders have one of the highest recidivism rates around—that they get out of prison only to offend again. Surprisingly, the opposite is true.” A Bureau of Justice report places the sex-offender recidivism rate at 5.3 percent, a recidivism rate lower than any crime other than murder.
Sex offender registries, combined with myriad restrictions placed on them with the overwhelming support of a public that has been sold on the myth, have proven to be ineffective, unnecessary and disastrous in their unintended consequences.
We’ve created an underclass in the United States that, after successfully completing a prison sentence and “paying their dues to society,” is thereafter exiled to a life of living under bridges and precluded from returning to a law abiding life. If sex offenders can’t get jobs, they need to find alternative ways to feed themselves. And if kids who pee against walls are sex offenders, well, is that really the person who threatens your little girl with rape and murder?
It appeared that the message was beginning to sink in, that we’ve way overplayed our hand in the name of saving the next Megan Kanka by making life impossible for people whose offense offers no suggestion that they will ever do any child harm. Apparently not.
Unbeknownst to most, there was already a mechanism in place to control the foreign travel of sex offenders.
What’s more, when it comes to those who have committed the most heinous crimes or are the most likely to reoffend, we already have a mechanisms in place to either prevent them from getting passports or notify foreign governments when they’re traveling abroad. The Secretary of State can deny passports to people convicted of certain sex crimes, and Immigration and Customs Enforcement’s (ICE) “Operation Angel Watch” already notifies foreign officials when Americans convicted of certain sex crimes are traveling there.
And the reason ICE knows the travel habits of these sex offenders? Because all people on state sex offender registries—regardless of why they’re there or how long ago their crimes were committed—are required under federal law to “inform his or her residence jurisdiction of any intended travel outside of the United States at least 21 days prior to that travel.”
Then again, should ICE employ its usual competence, fears that this should prove too porous to prevent a single sex offender from slipping through may be warranted. So the simple solution is to stamp each passport with the scarlet letter.
So what if it harms a broad swath of the undeserving, as everybody knows that anyone placed on a list of sex offenders deserves whatever he gets. And even if they don’t, it’s not like good people give a damn. Until it happens to their kids.
Update: The LA Times has an editorial calling for President Obama to veto this law:
After rousing themselves from the 30-plus-year bad trip that was the war on drugs — or rather, the war on drug users — many Americans in and out of elected office looked around for someone else to persecute. Someone, somewhere, must be so depraved and hateful that liberals and conservatives, Democrats and Republicans could join in common cause to vilify them.
They appear to have found their target: sex offenders. The current case in point is a congressional proposal to alert the nations of the world that particular U.S. citizens who have committed sex offenses against minors are planning to visit. Passports would be specially marked so that other countries could turn travelers away at the border because of old crimes for which they have already served their time in the U.S.
This vindictive bill has been wisely rejected numerous times in the past, but now it’s heading to President Obama’s desk. He should veto it.
The rationale is two-fold, that the targets have served their sentences and that the myth of the sex offender recidivist is ignorant bullshit. But if not sex offenders, who can America hate enough to ruin their lives to make us feel like we’re protecting the children?
Update 2: President Obama has signed the law.
A 2010 Government Accountability Office report said that at least 4,500 U.S. passports went to registered sex offenders in fiscal year 2008. In addition, it seeks to have the U.S. informed when convicted sex offenders from overseas travel to this country.
Millions of words, tears and angst will be spent in a few years in an effort to undo the unintended consequences of this misguided law. And no one will be saved. But for a few minutes, the government will pat itself on the back for doing something to save the children.
H/T Doug Berman