The Problem With "Megan’s Law"

Several weeks ago, I read an article in the Economist that criticized the way sexual offenders are registered in the United States. With the arrest of Roman Polanski yesterday in Switzerland on an American warrant, I figured this might be a good time to talk about this.

First, some background: in 1994, in response to popular outrage over the kidnapping, rape and murder of seven year old Megan Kanka by repeat sexual offender Jesse Timmendequas, the Federal Government passed the Sexual Offender Act of 1994 (informally known as “Megan’s Law”). This law requires that all sexual offenders register with the police and that this information be made publicly available. As a result of this law, anyone can now find out where all of the sexual offenders live in their town.

And that’s where the Economist article comes in. The Economist took the position that this law unfairly stigmatizes lesser offenders by lumping them in with more serious offenders. According to the Economist, this is unfair to these criminals, thus, the government should amend the law to remove lesser offenders from the list of offenders who are reported.

Now I’m not sympathetic to that position. Even lesser sexual crimes are a reason to be concerned. And I certainly don’t like the idea of the government deciding for us what constitutes a dangerous sexual offense and what doesn’t. But there is something to the article, and that something was revealed to me during this past month as I watched a friend of mine shop for a house.

Every single house she found seemed to have a sexual offender somewhere nearby. Indeed, in a town of around half a million people, every single neighborhood had at least one sexual offender in it.**

Now as a decent sized, single male, this doesn’t bother me. But for your average female or a family with kids, this has to be a terrifying prospect. After all, who wants to live near someone who might be looking to rape them or their children? Indeed, my suspicions were confirmed when my friend reported that anyone who she told about a sexual offender living near any house would instantly say: “I wouldn’t buy that house. That’s not safe, and you’ll never be able to sell it.”

And this is, in fact, very rational. If there is one thing I’ve learned working as an attorney, it’s that most criminals are repeat offenders and sexual criminals all the more.

So what does the Economist have right? They’re right that you can’t tell what exactly the individual offenders did. Why does this matter? Because there are many types of sexual offenses. Some of them clearly are more dangerous than others: are you living across the street from a serial rapist or child molester or was this guy convicted of having sex with a sixteen year old when he was nineteen? Was the crime fifty years ago or last week? Was there more than one crime? In some states, doctors (particularly psychologists) or attorneys who are caught having sex with their clients can be charged with sexual offenses. Are such offenders dangerous to their neighbors?

Unfortunately, all the police reports will disclose is name, address and title/felony class of the conviction. And while this may sound sufficient to sort out who is dangerous and who isn’t, the truth is that most sexual crimes are lumped together into one or two felony classes, and thus are completely indistinguishable without details. For example, in one state in which I’ve practiced, a violent rapist who got out of prison last week for crimes he committed five years ago would appear as John Doe, 123 Main Street, Convicted of Sexual Assault Class 1. But a man who was convicted of sleeping with a sixteen year old when he was nineteen in 1902, would be described the same way. One is clearly a danger, the other is not. Yet, you can’t tell, so you need to assume the worst to be safe.

In another state in which I’ve practiced, a psychologist who sleeps with a patient might be described as Sexual Assault Violation of Position of Trust, the same description that would be given to a teacher who raped a seven year old student. Again, one is a clear danger, another is not, and you would have no way to know which is which.

By failing to provide this information, not only does it become extremely difficult to buy homes (and to sell certain homes), but it becomes impossible for people to make rational use of the information provided. Rather than knowing if your neighbor is a true danger, you currently need to assume the worst and act accordingly. And with sexual offenders living everywhere, that can become quite expensive and quite destructive for society at large -- and forget selling your house if you live next door.

The only way to solve this problem is to either remove the lesser offenders from the list, as the Economist urges, or to add the details needed to make rational judgments and let people evaluate the danger for themselves.


** In response to a question from Jed, here are some statistics to consider. According to DOJ numbers, in 2008, there were about 700,000 registered sex offenders in the United States. That works out to about 425 per 100,000 people. That means in a town of 500,000 people, you're talking about 2,100 spread around town. The town I'm in right now is officially 194 square miles. That means there are just over one sexual offender per square mile if you average it out.

The problem is that only a small number of these people are dangerous, but you have no way to know which ones that would be because the disclosures do not give enough information to decide. That's why I'm saying they need to give people more details.