«Prepared by Stand Up for what’s Right and Just (SURJ) July 2011 1 Summary: The Case for Modifying Juvenile Sex Offender Registry Requirements FACT: ...»
The Case for Modifying Juvenile Sex
Offender Registry Requirements in Delaware
Prepared by Stand Up for what’s Right and Just
Summary: The Case for Modifying Juvenile Sex Offender
FACT: The effort to modify juvenile sex offender registry requirements does not
contradict the Adam Walsh Act.
The Adam Walsh Child Protection and Safety Act, established in 2006, was an
effort to protect children from sexual exploitation and violent crime by requiring sex offenders to make personal information available to the public. The Act specifically excludes juveniles under age 14 and those age 14-17 who commit low level offenses.
Additionally, the January 11, 2011 Final Supplemental Sexual Offender Registration and Notification Act (SORNA) Guidelines added an exemption for juvenile offenders, giving states discretion to exempt juvenile offenders from public website posting. HB 137 does not challenge the implementation of The Adam Walsh Act in Delaware; rather, it challenges registration requirements which are beyond what the Act requires and what the majority of the country is doing. If HB 137 passes, Judges would have the discretion to decide on a case-by-case basis whether sex offenders under the age of 14, or those age 14-17 who committed less serious sexual offenses, must be placed on the sex offender registry.
FACT: Delaware has the harshest laws in the nation for youthful sex offenders.
Our state is clearly out of line with the national approach for responding to children who commit sex offenses. Delaware has the youngest registrants in the nation, with children as young as 9 years old on its sex offender registry, and it is currently the only state that automatically places children age 14 and under on the registry. The Delaware Supreme Court, in its 2002 case Delaware v. Sapp, recommended that legislators review the current application of sex offender laws to children. Multiple states allow judges discretion in placing children on the sex offender registry. It is important to note that one of these states, Ohio, is one of the four states that has been deemed compliant with the Adam Walsh Act by the U.S. Department of Justice, illustrating that adherence to the Act is not contradictory with judicial discretion in this area.
2 FACT: Most youthful sex offenders do not commit further sex offenses.
Despite the contention that “juvenile sex offenders do re-offend,” research consistently shows that a very small number of youthful sex offenders commit additional sex crimes. A 2007 study funded by the MacArthur Foundation found that more than nine out of 10 times, the arrest of a youth for a sex offense is a one-time event. The juvenile sex offender study by the Delaware‟s Statistical Analysis Center produced misleading results, since it included the technical violation “failure to register.” In contrast, a 2009 study by Smith College professor Dr. David L. Burton, commissioned by the Family Court of Delaware, found that at least 45% of Delaware‟s youthful sex offenders posed a low to moderate risk for reoffending because they did not exhibit the factors that have been found by experts to contribute to future sexual offending.
FACT: Requiring children to register as sex offenders can seriously hinder their rehabilitation.
Children who are placed on the sex offender registry are subject to extreme public scrutiny and may experience harassment, taunting, and social isolation. Housing restrictions and alternative schooling can hinder a child‟s ability to access rehabilitative services and treatment that are needed to lead a productive life and to engage in ageappropriate, legal behavior. Youth on the sex offender registry experience extreme difficulty finding summer jobs and often have difficulty transitioning into adulthood because of the significant societal barriers that exist for registrants.
Recommendation & Status Update:
SURJ supports the passage and implementation of H.B. 137 in the 146th General Assembly (previously introduced as HB 182 in the 145th General Assembly). In June 2011, the bill was released from the House Judiciary Committee. The measure awaits a vote by the full House of Representatives.
3 Introduction & Overview The use of sex offender and violent offender registries is commonplace in American law enforcement. Well-publicized media accounts of sexual violence and political crackdowns on sexual predators have resulted in more stringent laws for individuals convicted of a sex crime. People convicted of many sex-related offenses are required to register with the state as sex offenders, and their home address, employer, and charges are available to the public to view online. The introduction of the internet has made sex offender registries accessible to anyone with access to a computer.
Federal legislation such as the Adam Walsh Act requires states not only to post registries for offenders from their respective jurisdiction, but also to link state offenders to a nationwide database. Additionally, the Adam Walsh Act requires some youthful sex offenders to be placed on the registry. While the aim of sex offender registries is to protect communities and families from predation, the unintended consequences of requiring youth adjudicated of sex offenses to register must be considered.
Initially, sex offender registries were enacted in order to aid law enforcement in tracking the most violent sex offenders. However, as the use of sex offender registries becomes more commonplace, children who engage in unusual or deviant sexual behavior are increasingly being required to be added to registries. According to the Justice Policy Institute, sex offender registries can actually “create more crime by alienating those on the registry from social support systems, including education, employment, and housing, that have been shown to reduce the likelihood that an individual might participate in illegal activities” (Petteruti, et al., 2008).
Since 1999, Delaware children adjudicated of certain sex crimes1 are automatically required to be placed on the sex offender registry. It should be noted that Delaware exceeds the Adam Walsh Act registry requirements for juveniles; the state is considered to have the harshest laws in the nation targeted at youthful sex offenders.
Despite the varying circumstances surrounding juvenile sex crimes and research showing that most juvenile sex offenders do not go on to commit additional sex offenses, the judiciary‟s hands are tied and cases are not evaluated on a case-by-case basis to determine a youth‟s likelihood of reoffending. Being added to the sex offender registry can have devastating effects on a child‟s social and emotional well-being and places a stigmatizing label on a child that can have long-lasting negative effects.
In Delaware, there are currently 639 children on the sex offender registry (see Table 1). 55 of these children registered at age 12 or younger. The youngest child on the Delaware registry is 9 years old. Many juvenile justice advocates and practitioners agree that Family Court should be given the discretion, under particular guidelines that comply with the Adam Walsh Act, to determine whether a child should be required to register as a sex offender. Additionally, a recent ruling from the Delaware Supreme Court has found that children should automatically be removed from the sex offender registry if their 1 See §771-78 of Title 11 of Delaware Code
The History of the Adam Walsh Act The introduction of the community notification process dates back to the early 1990s when highly publicized media coverage of sex crimes led to a heightened fear by the public and the determination of lawmakers to protect children from these tragic events. The result of this motivation was the creation of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Act in 1994. The law called for states to compile a list of previously convicted sex offenders and require these individuals to register with police for ten years.3 The Wetterling Act was amended in 1996 with Megan‟s Law, which allowed community notification following the release of sex offenders into the community. Following President Bush‟s approval in 1993, the law began to include the Dru Sjodin National Sex Offender Public Registry, which joined state-based registries into one federal registry available online and made it a felony if a person on the registry failed to update his/her information.4 This law eventually evolved into what is now the Adam Walsh Child Protection and Safety Act.
2 Office of the Public Defender of Delaware. Juvenile Registration Registrants by Age and Tier. Raw data.
3 Petteruti, Amanda and Nastassia Walsh. Registering Harm: How Sex Offense Registries Fail Youth and Communities. Justice Policy Institute, 2008.
The Adam Walsh Act requires that youth register, if prosecuted and convicted as an adult OR (a) if offender is 14 or older at time of offense AND (b) adjudicated delinquent for offense comparable or more serious than “aggravated sexual abuse” OR adjudicated delinquent for a sex act with any victim under the age of 12. It incorporates more sex offenses and extends the jurisdictions in which registration is required to include federally recognized Indian tribes. The Act also requires individuals to keep their registration current in the jurisdictions in which they reside, work, or go to school. More extensive registration information is required by the Act, including photos, and individuals are required to make periodic in-person appearances to verify and update the registration information. The Act makes the registry retroactive and requires states to have a failure to register offense and to impose a criminal punishment for noncompliance.
It expands the amount of information available to the public regarding people on the registry and makes changes in the required minimum duration of registration, establishing
a Tier system based for offenses:
6 As of April 2011, only four states (Delaware, South Dakota, Florida, and Ohio) have been deemed in compliance with SORNA6, and two of those states‟ sex offender registry laws have been constitutionally challenged. Despite the law‟s intended protection, the Adam Walsh Act, as applied to juvenile sex offenders, runs contrary to the legal and moral philosophy of protecting the records of minors by requiring all juveniles assessed to be a Tier II or Tier III risk to register regardless of the circumstances surrounding the offense. However, Delaware has implemented registry requirements that exceed the requirements under the Adam Walsh Act by requiring youth under age 14 to register, as well as 14-17 year olds who commit low level sexual offenses.
National Juvenile Registry Trends Five patterns have emerged regarding how the fifty states handle the registration of juvenile sex offenders7. The five different responses form a continuum from the
harshest response to the most moderate. They are, respectively:
All juvenile sex offenders, regardless of age and offense, are required to register (all but one of these states, Delaware, has set minimum ages for registration and/or public view of registry information).
Registration is only required if a juvenile commits an enumerated offense, usually a subset of the crimes for which adult registration is required.
Court discretion decides if the juvenile needs to register.
Juveniles only have to register if they are charged and convicted in adult court.
No juveniles appear on sex offender registries.
There are only eight states that require all juveniles adjudicated of a sex offense to register. Of these states, Delaware‟s laws are the harshest because it has no minimum age and all offenders appear on a publicly viewable database. Most of the states that require all juveniles to register have a database that is only accessible by law enforcement officials, or minimum age requirements. It is no overstatement to say that Delaware has the most stringent juvenile registry laws in the country, and it is important that reform efforts be made to bring Delaware in line with national trends.
Giving the court discretion to decide whether or not a juvenile should register is the middle ground between the stricter and more lenient responses. Eighteen states have begun using a model of court discretion, making it the most prevalent legislative response, used twice as often as the next most popular response.By enabling Delaware courts to use juvenile sex offender registration only when necessary, the proposed legislation would bring Delaware in line with the national trend, ensuring the highest quality of justice for juveniles adjudicated delinquent of sex offenses.
6 U.S. Department of Justice Office of Justice Programs Press Release. “Justice Department Announced Seventh Jurisdiction to Implement Sex Offender Registration and Notification Act.” January 20, 2011.
http://www.ojp.usdoj.gov/newsroom/pressreleases/2011/SMART11054.htm 7 Denniston, Sharon. Summary Comparison of U.S. State Juvenile Sex Offender Registry Laws. 28 Mar.
2010. Raw data.
Unintended Consequences According to Delaware-based defense attorney and former deputy attorney general Thomas Foley, “There is nothing more egregious in the entire criminal code than the way Delaware treats children adjudicated delinquent of sex offenses.” Although the Adam Walsh Act was intended to address “public and professional concern that adult sexual offenders were not being monitored to the extent that afforded protection to children,” it disregards the apparent divide between juvenile and adult sex offenders.8 Under Delaware law, juvenile sex offenders are subject to the same punishment as adults and are automatically placed on the registry regardless of their risk to the community.
This act is counterproductive and usually leaves underage offenders worse off than they were pre-conviction / pre-adjudication.