What sounds like a good law in a twenty-second sound bite sometimes turns out to be less clear when one digs below the surface. Such is the case with International Megan's Law, which President Obama recently signed into law. International Megan's Law requires those who committed a sex offense against a child to have a permanent stamp placed on their passport. While this may sound like a no-brainer if we consider the media's portrayal of the sexual predator, reality is far more complicated.
International Megan's Law means a teenager who was convicted of distributing child pornography for sexting with her boyfriend may not be allowed to do a semester abroad in college. A budding architect who plead no contest to child molestation for having sex with his freshman girlfriend when he was a high school senior may never be able to marvel at the Grand Pyramids. A father may not be permitted to cheer on his daughter as she competes for her country in the Olympics because he touched a 12-year-old boy over the clothes some thirty years ago and has remained law abiding ever since.
The stated rationale for International Megan's Law is two fold: (1) Individuals who have offended against a child pose an extremely high risk of reoffending, and (2) Megan's Law will stop them from doing so.
The first premise (dangerousness) is demonstrably false. Study after study has shown that sex offenders actually have a low recidivism rate. A 2003 Department of Justice study followed 9,691 sex offenders released from prison in 15 states across the country. It found just 5.3% were rearrested for a new sex crime within 3 years, and only 3.3% of child molesters were rearrested for a new sex crime against a child.(Source.) Juveniles pose even less of a risk. A 2009 study of 1,275 juvenile male sex offenders in South Carolina found just 7% were rearrested for a new sex crime within nine years of original offense.(Source.) Women pose the lowest threat. A 2010 meta-analysis of ten studies found only 1% to 3% of women recidivated sexually.(Source.) This premise also ignores that what counts as a sex offense against a child can include a high school senior having sex with his 15-year-old girlfriend, behavior that should be discouraged but which does not deserve the designation of international pariah.
The second premise (effectiveness) is wrong as well. Studies show that Megan's Law has had little to no impact on the incidence of sex offending. Indeed a 2008 analysis by the Department of Corrections in New Jersey concluded, "Given the lack of demonstrated effect of Megan's Law, the researchers are hard-pressed to determine that the escalating costs are justifiable."(Source.)
Instead of crafting a law targeted at those who pose an actual danger, Congress treated sex offending as an immutable characteristic. It ignored research showing that treatment works. (Source.) It closed its eyes to studies demonstrating that sex offending drops with age, and the longer a person remains in the community offense free, the less likely he is to reoffend.(Source.) (Source.)
Despite the lack of empirical support, it's not surprising that Congress passed International Megan's Law. When it comes to legislation controlling sex offenders, facts are beside the point. And so out of misguided hysteria, the United States has passed a law requiring sex offenders to have a permanent mark on their passport. And make no mistake -- this is going to curtail their ability to travel outside the country, including to places like England and France, not exactly hotbeds for child sex tourism.
The most depressing thing about International Megan's Law may be that President Obama, a second term president and a former constitutional law professor, signed it into law. A man who has experienced being judged by ignorance-grounded "facts."
On March 30, Phyllis J. Hamilton, Chief Judge of the United States District Court for the Northern District of California, will hear a Motion for Preliminary Injunction to stop implementation of International Megan's Law. Those challenging the law have an uphill path as judges often defer to legislative findings of fact even when they are ill founded, and the Supreme Court has generally failed to intervene on the dubious assumption that these types of laws do not constitute "punishment." Sometimes, though, it takes only one courageous judge to listen to what the science actually tells us. Let us hope this is such a case.