Why Should Feminists Be Against the Sex Offender Registry?

In October, the Supreme Court heard a case that was painfully ironic, considering the Kavanaugh hearings the nation had just been subjected to: a challenge to the United States’ extremely restrictive sex offender registry laws.

While opinions on the case Gundy v. United States, which challenges the Attorney General’s ability to retroactively impose registry requirements, have yet to come out, debate around sex offender registries is particularly important in the wake of #metoo.

Established in the ‘90s following several high-profile rapes and murders of children, the sex offender registry used parental grief to propagate “tough on crime” policies. Registries were initially framed as mechanisms to protect children from sexual abuse by imposing severe and often lifelong housing, work, and even internet restrictions on people found guilty of sexual violence. The public nature of the registry was intended to help parents protect their children against “sexual predators” in their communities. Today, sex offender registries include people convicted of a wide range of sex-related offenses and even some non-sexual ones, from public urination to rape. 

But there’s a problem: sex offender registries don’t work.

Despite the promise that harsh treatment would decrease sex crimes, research has found sex offender registries to be ineffective in preventing recidivism while at the same time creating other problems, like high rates of homelessness among former offenders. At a more principled level, sex offender registries and systems like them (which effectively punish some people for life even beyond time served) violate what ought to be a fundamental principle of feminist justice: that punishment is finite and that rehabilitation is possible.

Understanding the feminist argument against sex offender registries is particularly important right now, in the wake of a global #metoo movement that has prompted difficult, important questions about justice and the possibility of genuine accountability. What’s more, American-style sex offender registries have a disproportionate global impact, with India currently in the process of establishing a registry that holds immense possibility for abuse. As #metoo challenges us to think beyond punitive modes of addressing sexual violence and toward restorative and transformative approaches, we need to understand why a system that purports to be “tough on sexual violence” is fundamentally anti-feminist. Here are some of the major feminist critiques of sex offender registries.

Registries don’t help prevent recidivism, and may even make it more likely.

Sex offender registries are based on the idea of the “sexual predator” as someone who is inherently evil and will always reoffend. Yet research doesn’t show this to be the case.

The notion that people who commit sexual crimes reoffend at a uniquely high rate is persistent, yet definitively false. Numerous studies suggest that the number of people convicted of sex crimes who end up being re-arrested for a sexual offense hovers around 3.5%. While it’s true that sexual violence is massively underreported, this is still a far lower rate of reoffending than popularly believed. 

In fact, in contrast to what registry supporters argue, one 2011 study found that sex offender registries actually increase the likelihood of recidivism by about 1.6%, largely due to the effects of social isolation, inequality, and homelessness caused by strict residence restrictions. This data is so convincing, numerous states are rolling back residency restrictions on people convicted of sex offenses. Meanwhile, rights organizations like the ACLU and Human Rights Watch argue against the broad use of sex offender registries and recommend that states should severely limit sex offender registries, remove restrictions on offenders’ mobility and residency, and restrict public disclosure of offender status.

Registries don’t center victims’ needs.

As many feminists have argued, a major problem with punitive approaches to sexual violence like the sex offender registry is that they tend to ignore survivors’ needs in favor of a single-minded focus on perpetrators’ misdeeds. As our own Alexandra has written, survivors have concrete, material needs (healthcare, housing, counseling, paid time off) that punitive approaches to justice—while they may make politicians feel “tough on crime”— simply don’t address. Human Rights Watch similarly argues that sex offender registries divert resources that could be better spent providing prevention and victim services.

Meanwhile, child advocates argue that treatment and community support for convicted or potential offenders are much more effective at protecting victims than sex offender registries. As Alison Feigh, a child safety advocate, told Human Rights Watch, “When a sex offender succeeds in living in the community, we are all safer.” “Spencer,” a pedophile who has sought psychological help for his attraction to children and has not offended, told Slate “It doesn’t protect children to have a stigmatized group of outcasts living on the fringe of society.” While conventional wisdom would condemn even considering Spencer’s thoughts on how to prevent child sexual abuse, the existence of people who are attracted to children but who do not act on that attraction should give us hope in the potential for prevention.

Registries perpetuate myths about sexual violence.

Sex offender registries rest on fundamentally flawed ideas about sexual violence. By quarantining people who have committed sexual crimes, particularly crimes against children, proponents of registries claim to protect children from predation—with the underlying assumption that the greatest threat to children is “stranger danger.”

In contrast, as RAINN reports, and as the recent avalanche of #metoo revelations helped reinforce, most sexual assaults are committed by someone known to the victim. Children are overwhelmingly assaulted by acquaintances (59% of reported assaults) and family members (34% of reported assaults). Considering this, the rhetoric about “stranger danger” obfuscates the real causes of sexual violence by playing on fears of the outsider rather than focusing prevention efforts on families and communities. In fact, there’s evidence that the threat of permanent punishments like lifelong sex offender registration may actually deter victims from reporting family members who have abused them.

What’s more, the existence of public registries for sexual crimes, rather than for crimes like murder, reveals a hierarchy of violence that is not ultimately supportive of survivors. There is a long, misogynistic history of tying women’s worth to our sexualities, and particular our virginities, leading to the idea that survivors of sexual violence are “impure,” “defiled,” or shameful. Historically, this led to a belief that if an “honorable” woman is raped, she may as well be socially dead. This deeply conservative belief is baked into the sex offender registry, which is justified with a rhetoric of protecting childhood innocence against evil depravity. Ironically, the same politicians who support a “tough on crime” sex offender registry are also likely to deny and minimize survivors’ diverse lived experiences of sexual violence—and sexual violence committed by members of their own ranks.

The answer to this isn’t to expand registries to other crimes, but to focus more efforts on supporting survivors in affirmative, constructive ways.

Registries violate the human rights of offenders.

Sex offender registries are based on the idea of offenders as depraved and inhuman. The truth, of course, is that as inhuman as acts of sexual violence are, perpetrators are decidedly human, and they must be treated that way.

Sex offender registries impinge upon the freedom of mobility, material security, and access to basic resources of people convicted of sex crimes even after they have completed their sentences, in a way that is unique among penalties for serious crimes. Previous offenders often end up living in poverty with little ability to earn a living, achieve stable housing, or access social support. Numerous rules placed upon people on sex offender registries, such as bans from using the internet, retroactive punishment, and some of the more onerous residency bans, have been found unconstitutional, yet these practices persist.

Sex offender registries exacerbate existing injustices, disproportionately targeting black men. One percent of black men in America are registered as sex offenders. That’s double the percentage of white men, and the result of structural racism in law enforcement.

Registries deny the transformative potential of justice.

We are feminists because we believe in the human capacity for transformation. We believe that bad things can get better; that people who do bad can do better. Without this belief, we don’t have a politics. 

There is already a fairly widespread critique of sex offender registries’ inclusion of people with relatively minor or nonsexual offenses, or who were convicted as children. Children, the argument goes, should not be held eternally culpable for an action they may have committed before they were even aware of its ramifications. This critique is a good start.

A truly feminist perspective, however, would go a step farther and hold that it’s not just children or people who have committed relatively minor offenses who deserve the possibility of transformation: it is everybody.

This isn’t a pie-in-the-sky radical fantasy (though those are pretty delicious, too). Practical, treatment-based approaches to preventing sex offenders from re-perpetrating are already incorporated in some sentencing in the United States. In Germany, where laxer mandatory reporting laws allow people attracted to children to seek psychological help without triggering automatic state action, programs are available to treat pedophiles before they offend or to prevent them from reoffending.

As much as we may treat each other like trash, human beings are not garbage: we cannot be tossed aside. People banished from participation in society still have to go somewhere. We collectively choose what that “somewhere” will be: social isolation and incarceration or the possibility of a meaningful community life.

I know the withering rage that makes us want to breathe fire against our abusers, that makes us want to toss them to the bottom of the ocean or launch them to Mercury or impale them on a stake. That rage is real and right and feminist, and I’m never going to tell a survivor how to feel toward their individual abuser. At a moral and a policy level, however, we must know that our healing is, for better or worse, wrapped up in collective societal healing—and that includes the human rights of perpetrators. If we want to achieve meaningful progress around sexual violence, we must believe in meaningful accountability.

Featured image by Niu Niu, Unsplash