Don’t Just Get Kids Off the Sex Offender Registry. Abolish It

Recently the New Yorker published a major article about juvenile “sex offenders.” The story, by staff writer Sarah Stillman, is far ranging, moving and important. Stillman writes about many young people who were caught doing anything from playing doctor to sexually coercing another person (usually another child). Convicted for sex crimes, some of these youth are incarcerated and subject to lifelong sex offender registration—a kind of social death sentence.

The New Yorker article follows a year in which the juvenile sex offender (JSO) was frequently in the news.  Josh Gravens, a Texas father of four convicted at age 12 of sexual contact with his younger sister, was profiled by Reuters and the Dallas Observer, which celebrated him as one of “the metro area’s most interesting characters.” Zachary Anderson’s case, and a photo of his parents, appeared on the cover of the New York Times. At 19 Zach, an Indiana computer studies student, had sex with a woman who presented herself as 17, but was 14. He too faced sex offender registration.

In stark contrast to earlier iterations–Jeffrey Dahmer, Jesse Timmendequas, or the villains on “Law & Order: SVU” – these “new” sex offenders are humanized: attractive, promising, law-abiding heterosexual sons and fathers who made some youthful mistakes and deserve a second chance.

Behind this sympathetic media coverage are decades of organizing by groups like Reform Sex Offender Laws (RSOL) and recent policy reports, including Human Rights Watch’s groundbreaking Raised on the Registry (2013), by Nicole Pittman, that have raised the visibility of registered sex offenders, particularly those convicted as juveniles.

Most recently, with Project Impact, Pittman has launched the Center on Youth Registration Reform (CYRR), whose mission is to “eliminate the practice of placing children on sex offender registries in the U.S.” Although the grassroots RSOL network—comprised largely of registered offenders and their families—has long advocated for youth caught up in the sex offender regime, thanks in part to the New Yorker article, and a companion video about Pittman, CYRR shows the potential of becoming the face of JSO advocacy. And with what what it describes as a “zealous, unwavering, [and] tactical” strategy, the campaign has a good chance of success in removing many kids from the registry. This will improve countless lives.

These campaigns follow a well-worn criminal justice system reform track: advocating for more compassionate treatment specifically for young people who break the law, from drug dealing to homicide. This tactic—reinforced by frequent reference to research showing that teenage brains aren’t fully developed—has had some traction in other areas of criminal justice reform, for instance, to eliminate the death penalty and reduce life without parole for those convicted as juveniles.

A focus on the juvenile sex offender—or any juvenile offender—has potential upsides. It invites audiences to see a whole person and a complex situation and to empathize with the person who has done, or been accused of doing, harm. The invocation of childhood, and its suggestion of innocence by reason of immaturity, can spread sympathy more widely to whole communities harmed by the carceral state, particularly when kids are secondary victims of parental incarceration and systemic “civil death” or disenfranchisement.

Coverage of the JSO often unpacks the category of “sex offender”—pointing out that it includes convictions for sexting, public urination and consensual sex between minors, as well as violent rape and the abuse of children; it can expose the uniquely harsh treatment of all these people by the U.S. criminal justice system and the public. These stories point to the youthful offender as collateral damage in a regime of indiscriminate and ever-escalating penalties.

For instance, The Marshall Project approached the issue of civil commitment through the story of the resident/inmate Jhon Sanchez, convicted of sexual assault at the age of 13. The headline foregrounded the kid—“Why Some Young Sex Offenders are Held Indefinitely”; only in the subhead was the reader clued in that the story goes “inside the world of civil commitment.”

An organizing example: Before International Megan’s Law passed in early 2016, requiring citizens convicted of sex offenses to carry passports that visibly mark their status as sex offenders, a small network of groups mobilized across the county to encourage Obama to veto this bill. The talking points for opposition to the law zeroed in on the ways it would harm juveniles. “The law pins this scarlet letter most senselessly on children adjudicated in juvenile or family court,” read one email circulated to activists.

Why youth?

In one way, it makes sense to focus on extricating juvenile sex offenders from the registry. An estimated one-fourth of the people on the public sex offender registries were convicted as juveniles. Fifteen states post the names and photos of offenders who are minors on the online registries. Thirteen of the 20 states that lock up people in indefinite civil commitment—preventive, dubiously therapeutic detention for crimes not yet committed—include people who committed their offenses as juveniles. “The single age with the greatest number of offenders from the perspective of law enforcement was age 14,” according to the U.S. Department of Justice.

As Raised on the Registry powerfully showed, with little or no intervention these young people are virtually guaranteed not to “reoffend,” mainly because so many of them are penalized for engaging in sex play—things that, even if not always entirely consensual, are common among children and usually without long-lasting harm.

There is no question that getting some people off the list can be a first step toward getting others off—and a way of chipping away at the policy. One RSOL leader compared this tactic to the anti-choice movement’s success in virtually banning legal access to abortion, one little restriction at a time.

Why not only youth?

But there are also significant downsides to campaigns that construct children as exceptional and different from adults. The public may just as easily be left feeling that adults who break the law are bad and deserve all they get—or that guilty people do not deserve fairness or sympathy. This gives legislators a rationale for trading off youth-friendly criminal justice policies for harder adult penalties, as recently happened when New Mexico legalized sexting between teens but increased penalties for people 18 and older sexting with people under 18. Not just adults but some youth can be penalized by the focus on “children.” Call the person who breaks the law a “child,” and there’s a danger that any young person not demonstrably childlike will end up prosecuted as an adult.

Exclusive focus on the young offender—rather than a rejection of the entire sex offender regime—avoids the larger, less politically popular truth. “Sex offender registries are harmful to kids and to adults,” says Emily Horowitz, associate professor of sociology and criminal justice at St. Francis College in Brooklyn, and a board member of the National Center for Reason & Justice, which works for sensible child-protective policies and against unjust sex laws. “No evidence exists that they prevent sex crimes either by juvenile offenders or adult offenders.”

Such a strategy can invite a wider range of supporters, but it also can mean inadvertent acceptance or even endorsement of policies that are antagonist to justice for wider groups, if not for everyone. For instance, CYRR is collaborating with Eli Lehrer, of the free-market think tank R Street; he is also a signatory of the conservative Right on Crime initiative. Flagged on the CYRR site is an article by Lehrer, published this winter in National Affairs, that argues for taking kids off the registry. But the piece also concludes that ending the registries would be “unwise” and suggests they’d be really good with a few “sensible” tweaks. Lehrer also proposes hardening policies—such as “serious” penalties for child pornography possession and the expanded use of civil commitment—that data reveal to be arbitrary or ineffective and many regard as gross violations of constitutional and human rights.

In a more recent piece in the Daily Caller, as well as testimony before the South Dakota legislature this session, Lehrer repeats how important it is to punish “child molesters” harshly, and while he notes the low recidivism rate for juvenile sex offenders, does not mention that other adults with sex offenses show similarly low rates.

Similarly, at the top of an important page of CYRR’s site is a quote from a Seattle special victims unit cop: “The most recent laws dilute the effectiveness of the registry as a public safety tool, by flooding it with thousands of low risk offenders like children.” This is a common argument: that a less-cluttered registry would allow police to keep track of the “worst of the worst.” Are these CYRR’s positions? Pittman declined to speak on the record.

But CYRR is not alone in its reluctance to speak out for total abolition of failed and unjust sex offender policies. The National RSOL group—composed of people whose lives have been destroyed by these policies—advocates for registries accessible to law enforcement only. This is the kind of list that police used in the mid-20th century to terrorize and criminalize “known homosexuals” and men who had sex with other men. RSOL also wants to “reform,” not end, civil commitment, the indefinite post-sentence preventive detention of sex offenders deemed at risk to reoffend, a policy that’s been condemned as a human rights violation.

Whiteness, the hidden persuader

There’s another challenge with mobilizing the idea of childhood to reform sex crimes policy: childhood sexual innocence, or its absence, is profoundly racialized. Even if one is careful to represent JSOs of diverse races and classes—as are Stillman, Pittman, and the writer of the Marshall Project piece—childhood is tied to race, and whiteness is implicitly being recruited in the rehabilitation of the sex offender’s image.

With few exceptions, a striking difference is evident between the object of juvenile justice reform—the youth who has committed, say a drug crime or a shooting—and the image of the young sex offender. The former is typically nonwhite. In journalism, activism, and popular culture the latter is frequently white.

For movements against registries, there are two problems with this picture.  As a group sex offenders are more racially proportionate to the general population than, say, drug offenders. Like every other criminal population people convicted and punished for sex crimes are disproportionately African-American.

Second, it is politically and culturally troublesome. To elicit warm emotions for maltreated white “children” accused of sex crimes—even if the goal is to free all young offenders—is to mobilize a chain of sexually and racially problematic tropes: that “children” are sexually innocent (that is, ignorant and desireless); that sexually innocent children are white; that white, sexually innocent children are uniquely vulnerable to victimization; and that these vulnerable, victimized children deserve extra compassion and leniency.

Whiteness confers an assumption of legal innocence. But not just that. It also brings with it a dominant cultural assumption of sexual purity, from which, as Harvard historian Robin Bernstein shows in Racial Innocence: Performing American Childhood from Slavery to Civil Rights, the nonwhite, specifically the black, child was pointedly excluded.  “The concept of ‘childhood innocence’ has been central to U.S. racial formation since the mid-nineteenth century,” Bernstein writes. White children have been “imbued with innocence, black ones excluded from it, and others of color erased by it.”

And just as race helped to create the idea of childhood, “children have been a vital part of the process of creating—and reinforcing—racial difference in the US since the days of the Puritans,” notes University of Connecticut Professor Anna Mae Duane, author of The Children’s Table: Childhood Studies and the Humanities.

In a nation where 18-year-old Michael Brown is compared by the police officer Darryl Wilson to the comic book character the Hulk; where 12-year-old Tamir Rice is lethally assumed to be playing in the park with a real, not a toy, gun; and where white teachers identify 8-year-old black boys as “unchildlike” and “dangerous” (as sociologist Ann Ferguson documents), not all children or juveniles invite equal sympathy. As powerfully broadcast by #BlackLivesMatter and associated organizing including the Black Youth Project 100, many in law enforcement cannot conceive of any African American as innocent, or childlike.

Child sexual victimization—who is the perpetrator, who the victim—continues to be racially coded. The children in whose names the registries and other hyper-punitive sex offender policies were written—Megan Kanka, Adam Walsh, Jessica Lunsford—were all white middle-class victims of spectacularly violent crimes. Meanwhile, non-white youth are likely to be described not as prey but as predators. Remember the media’s term “wilding,” a clear reference to savage beasts, used in 1989 to describe the activities of the Central Park Five the night they were accused, and later when they were wrongly convicted, of raping and killing a white female jogger.

The strategy of pulling heartstrings for a white, sexually innocent child can move us in the wrong direction. It deepens rather than reduces historic divides between those who have access to the flexible, protective mantle of childhood and those who do not. It reinforces the same racially coded ideologies about children and sex—as well as myths about armies of adult perverts on the loose—that built the unjust sex offender regime in the first place.

Organizing alliances

Organizing against registries and other harsh treatment of people convicted of sex offenses often seems to be unfolding apart from the wider anti-carceral movement, for whom naming structural, and specifically, anti-black, racism is often a key strategy. But nothing in the criminal justice system is race neutral, including the treatment of sex offenders. This fact should help forge alliances between activists such as RSOL and CYRR and others invested in dismantling our carceral state, who have often kept a distance from people with charges or convictions for sex offenses.

As these alliances form, key political and tactical questions emerge. Should the focus of a key campaign be around a single issue, a single reform, such as more compassionate treatment of juveniles in the criminal justice system? Or do we need a broader vision and a more fundamental agreement with our allies on political principles?

“We question the reform logic founded on a premise that a child under 18 is deserving of support and transformative justice but a parent, sibling, family member, or neighbor over that age is deserving of control, surveillance, and caging,” Lily Fahsi-Haskell, Campaign Director of Critical Resistance, wrote in an email. “The elimination of registries for people with convictions for sex offenses is only one aspect of building communities that do not rely on punishing, isolating, caging, or policing in response to social problems. The other critical component is the creation of new mechanisms of safety and accountability to address systemic and interpersonal harms.”

Similarly, University of Wisconsin scholar Jenna Loyd, co-editor of Beyond Walls and Cages: Prisons, Borders, and Global Crisis, notes that the strategy of exempting juveniles from the registries rests on the “idea of an out-of-control system that unfairly robs rehabilitated youth of their adulthood, while simultaneously protecting them from the adults who are not redeemable and must always be watched. Rather than chipping away at the system, this approach instead shores up the conceit that registries work to prevent sexual violence.”

Incrementalism, or taking small steps, has often been posited as the pathway to justice–“Wait. We’ll make reforms now and work on the wider problem later.” Incrementalism can work. Reforms are necessary because they improve daily existence for the people inside the system—in court, in juvenile or immigrant detention, in jails and prison. But organizers must constantly calibrate the tension between reform and radical change, and the dangers of reform without a vision of radical change. By cleaning up a fundamentally corrupt institution, reforms risk legitimizing the institution, often just enough to make it politically palatable. As Martin Luther King wrote in his Letter from Birmingham Jail, “Wait almost always means never.”

Not only what we organize for, but also whom we organize with, matters. Many in criminal justice reform circles have applauded “bipartisan” prison reform efforts and gladly worked with conservative groups like the Right on Crime Initiative and ALEC’s Task Force on Criminal Justice Reform. It is tempting to join forces with such people when they endorse a cause we champion and offer needed resources.

But it’s a mistake to see these groups as true allies. Right on Crime recently blogged positively on Lehrer’s efforts to take kids off the registry. At the same time, one of the initiative’s most powerful members, the libertarian far-right Koch-funded policy factory ALEC, has crafted model legislation on sexual offenses against children that includes mandatory minimum sentences of 30 years to life for a second offense and execution if the crime resulted in the minors’ death. Not to mention that ALEC supports prison privatization and has written a slew of retrogressive criminal policies. To ally with such groups without disavowing their retrogressive policies is tacitly to give them a public stamp of approval.

We are heartened by the nascent alliances forming between people convicted of sex offenses (and their advocates) and movements against policing, surveillance, and imprisonment. Particularly exciting is the transformative justice movement, which, recognizing the interconnections between state violence and interpersonal violence, is working toward cultural change and employing concrete practices to end (or at least reduce) sexual violence without embracing the state’s power to punish. These movements hold the promise not just of freeing the youthful few, but of finally dismantling the registry while building real safety, for all.

We need to care about children—both those who commit harm and those who experience of harm. But we must not build movements that collude with a system that deems only some people—due to age, race, sex, gender expression, sexuality or criminal status—worth of compassion, justice, and life. For justice and for an end to violence, it’s time to abolish the sex offender registry.