If you didn’t see the SoHo Forum debate that took place on February 12, it’s well worth watching. Participating were Emily Horowitz, criminologist and sociologist at St. Francis College, and Marci Hamilton, CEO of nonprofit think tank CHILD USA.
They took on this resolution: “All the laws requiring those convicted of sex offenses to put their names in a registry should be abolished.”
If you haven’t seen Horowitz’ masterful opening statement, you must—perhaps the best succinct summary of what’s wrong with registries yet. (It starts at about minute 4 and ends at minute 14.)
This debate offered a rare opportunity to hear the arguments of the other side. Why rare? Usually registries are defended in off-the-cuff statements by ill-informed legislators or advocates. Not often does anyone attempt a fully developed, reasoned defense of them. So it’s worth looking at the validity of the arguments that Hamilton put forward.
But first, it’s important to understand that Hamilton made some important concessions early in the debate:
Residency restrictions don’t work: Hamilton said this: “It’s my view that the residency restrictions are ridiculous. They make absolutely no sense.”
Juveniles shouldn’t be on sex-offense registries. Hamilton based this assertion on the dubious statement that juveniles are more treatable than adults. (More on treatment below.) Still, it’s an important concession that at least one group shouldn’t be on registries.
Romeo and Juliet cases shouldn’t be prosecuted. Hamilton said that teens who are “two or three years apart” and got arrested for consensual sex shouldn’t be prosecuted.
Second, Hamilton made one egregious factual error that shouldn’t be ignored—asked whether you can get on a sex offense registry for public urination, she responded: “If it’s on a child.” Fact: In a dozen states, public urination can land you on a registry.
Third, I’ve excluded the red herrings that peppered Hamilton’s statements—those that had nothing to do with the argument at hand. She often digressed on the need to change policies that aren’t working. “We need to improve mandatory reporting. We need to improve background checks. We need to improve the education of the public. We need to improve the empowerment of survivors,” she said at one point. It’s possible that all of that is true—but those weren’t at issue in this debate.
That aside, here were Hamilton’s key claims.
Argument: Sex offender registries “are just one of the tools we need to stop the pandemic of child sex abuse.”
Response: Hamilton offered no evidence that registries are an effective tool. As Horowitz said in her opener, “There’s no rigorous evidence that the registry improves public safety. There is no rigorous evidence that the registry reduces recidivism. Cost figures are hard to come by, but the registry costs federal and state tax dollars. Very likely several hundred million dollars annually.”
Hamilton never responded to this line of argument. Later in the debate, she said, “The purpose of a sex offender registry is to protect children who have been sexually assaulted. It’s to keep more children from being assaulted.” But she never produced any evidence that registries do that.
Argument: Those who argue for eliminating registries are attempting to put the interests of adults ahead of those of kids. Hamilton: “Adults prefer to protect adult interests, and these are always so much more important than children’s interests.”
Response: This is the classic logical fallacy of appeal to motive—dismissing an argument by claiming that the person making it has ulterior aims. As such, it’s an invalid line of reasoning in a debate. She could just as easily have applied that assertion to herself for pointing out (correctly) that residency restrictions don’t work.
Argument: Those on registries have committed serious crimes. Hamilton: “Who is on a registry after all? You have to have either pled guilty or you have to have been convicted. And if you’re convicted you must have been convicted beyond a reasonable doubt…. These are people who are criminals.”
Response: Hamilton’s definition of registrants is actually wrong. Registrants aren’t criminals—they’re people who were convicted of or pled to crimes who have served their sentences. No other group of ex-offenders has their names, photos, and addresses posted for the public to see after they’ve served their time. Further, as Horowitz pointed out, 77 percent are first-time offenders, according to University of Washington professor Alissa Ackerman, who with a team of other researchers put together the first descriptive analysis of registrants in 2011.
And don’t forget the people put on registries for offenses having nothing to do with sexual assault or abuse. As noted above, a dozen states put people on registries for public urination. In six states, soliciting prostitution or running a brothel can land you on a registry. Under the federal Adam Walsh Act, implemented by 17 states, a person convicted of interfering with the custody of a child is put on the registry for 15 years, regardless of whether the crime had any sexual component. Lenore Skenazy summarized just what can land you on a sex-offense registry in a recent talk.
Argument: Treatment doesn’t work. Hamilton: “Today we have no effective permanent treatment for sex offenders.”
Response: Hamilton is partly right here, but what she’s right about is irrelevant. The federal SMART office looked at the treatment studies out there a few years back and concluded that “the effectiveness of treatment for sex offenders remains subject to debate,” citing inconsistent research findings and few randomized control trials.
But the argument here isn’t about whether treatment works. It’s whether registries do—and Horowitz cited the wealth of research showing that registries haven’t been shown to affect public safety or recidivism. With or without treatment, as Horowitz put it, “People who are arrested for a sex offense are less likely to be rearrested than any other type of offender.”
Argument: Those who argue against registries want to go easy on those who have harmed children. Hamilton: “What we are being persuaded of tonight is that we are supposed to feel sorry for people who have sexually assaulted children. And now other people know that they sexually assaulted children. And we’re supposed to forget it. Forgive them. That’s not the job of the law. The job of the law is to protect the vulnerable, and the vulnerable will not be protected.”
Response: This is a straw man argument—misrepresenting your opponent’s position. Horowitz’ key argument is that registries should be abolished because they’re ineffective, not because she feels sorry for ex-offenders. Further, she noted that there is “lots and lots of evidence that after people are arrested after people are punished they do stop. That’s why recidivism rates are very very low.”
Argument: Cases like Nassar’s are everywhere. Hamilton: “There are many many lessons to be learned from the [Larry] Nasser case. But one of them is not that this is unusual.” Hamilton also cites the Penn State and Catholic church cases.
Response: It’s not clear how Hamilton defines “unusual,” so her statement isn’t actually defensible. Horowitz noted that child sexual abuse rates have dropped 62 percent since 1990 and abuse reporting rates are up 50 percent. In any case, Horowitz noted that as a first-time offender, Nassar was on no registry, so the existence of registries was of no use in his case. (Nor were they in the Penn State and Catholic church cases.)
Argument: “Pedophiles don’t age out” and later, “Social scientists will tell you that pedophiles do not stop preying on children. Child pornographers do not stop just because they get old.” Hamilton cited the John Geoghan case in Boston as support.
Response: “Pedophile” refers to someone attracted to children who may or may not have offended against children. That’s a different population from those on sex offender registries, most of whom are first-time offenders, as noted above. So people attracted to children may not age out of their attraction—but that’s not the population at issue in this debate. Who is at issue are registrants.
And for this group, Horowitz points to Karl Hanson’s 2014 meta-analysis of 21 studies that followed ex-offenders for 8 to 31 years. It found that 32 percent of registrants assessed as a high risk to re-offend did so within 15 years. For offenders judged low risk, the number was 5 percent. And for high-risk offenders who made it 16 years with no re-offenses, their re-offense rate thereafter was zero. That is, the results of 21 studies show that re-offense rates do decline over time.
Argument: Recidivism among registrants is high. “What the research shows is that in fact and if you talk to the FBI or the ones who are experts in this arena, many of these perpetrators have over 150 victims over the course of their lives…. What Emily is telling you is that there is less recidivism among sex offenders than there is compared to be any other group. That’s ridiculous. And later: “Recidivism means that the perpetrator gets more than one child. I have to tell you the thousands of victims that I’ve worked with over the course of my career I don’t remember any of that just had one victim.”
Response: It’s unclear whom at the FBI she is citing here, though early in the debate she does reference an FBI official who spoke at a conference she organized. She offered no research to refute the recidivism studies Horowitz cited. But most important, Hamilton’s definition of recidivism isn’t correct— recidivism is re-offending after a conviction, not offending against more than one victim prior to conviction.
Argument: “The fact that [Nassar] wasn’t on a sex offender registry just shows the system is broken, not that sex offender registries don’t work.”
Response: The two parts of Hamilton’s assertion here aren’t logically connected. The system for reporting abuse can be broken (which presumably is why Nassar wasn’t nailed earlier) and sex-offense registry laws can also be broken, the case that Horowitz makes.
Argument: Studies show that registries do cut recidivism. Hamilton: “There’s a study out of Washington State that shows that with a registration system, recidivism dropped. Before the registration, recidivism was a certain level, and afterwards it dropped. There’s another group that is studying the same thing in New York. They’re finding the same result.”
Response: It’s unclear which Washington State study Hamilton is referencing. I could find only one meta-analysis by the Washington State Institute for Public Policy. After looking at nine rigorous evaluations, the institute concluded that “… the weight of the evidence indicates the [sex offender registration and community notification laws] have no statistically significant effect on recidivism…. at this time, we tentatively conclude that existing research does not offer much policy guidance on the specific deterrent effect of registration/notification laws.” Also, a 1995 Washington State study found no statistically significant difference between ex-offenders subject to a new community notification law and those who weren’t.
The only relevant New York State study I could find—done in 2008—came to this conclusion: “Results provide no support for the effectiveness of registration and community notification laws in reducing sexual offending…. Analyses also showed that over 95% of all sexual offense arrests were committed by first-time sex offenders, casting doubt on the ability of laws that target repeat offenders to meaningfully reduce sexual offending.”
Argument: If it saves one child, registries are worth keeping. Hamilton: “If it saves one child from child sex abuse, which can destroy that child’s life and all of their families, then it seems to me that we’re talking about the right thing in terms of having registration.”
Response: Hamilton’s argument here is that if a law protects even one person—child or otherwise—it’s by definition a good law.
I doubt Hamilton would argue for compelling everyone in Louisiana to keep a boat in their yard because in the next flood, some of them might be saved from drowning. Aside from the Constitutional issues around a forcing you to buy something, there’s the practical problem that such a law might bankrupt some people, which would create worse problems.
Would she argue for a law that institutionalizes the mentally ill because it might prevent a mass shooting? A law like that well may have kept Adam Lanza or James Holmes from carrying out their terrible crimes.
I hope not. All laws must balance the harm to be prevented with the harm created by the new law. A society that prizes safety above all else is ripe for tyranny. If a law creates more harm than good, even if it saves one life, it’s a bad law.
Argument: Asked by an audience member why arsonists and murderers shouldn’t have their own registries, Hamilton said those guilty of sex crimes should be treated differently because “Children don’t see what’s coming…. They’re either being groomed or they’re being loved.”
Response: The moderator effectively destroyed this argument with his response: “You think a child knows a mugger is coming or that an arsonist is coming? Arsonists kill children. They burn houses down with children.” Hamilton replied with a non-sequitur: “A child definitely doesn’t know that sexual assault is coming. With arson or mugging or burglary… they’re not on the same plane. They’re completely different.”
Argument: “We know from the experts that many perpetrators have more than one victim. The notion that you must repeatedly convict them in order to solve the problem means that we’re just going to sacrifice more children.”
Response: This was part of Hamilton’s close and was confusing. It appears she’s arguing for longer sentences for sex crimes—which wasn’t the subject of this debate.
Argument: Parents should have the right to protect their kids by looking up whether someone is on a registry. Hamilton: “I got a call from a family out in Illinois and they told me that they wanted to know what to do because there was someone in their community who was sexually offending against children. I said ‘you have to go to the authorities.’ They said they went to the authorities but it wasn’t enough. So [I asked] ‘how do you know that is a sex offender if the police won’t investigate?’ And their answer was that he was on the sex offender registry in another state. God bless those people that they know to protect their children.”
Response: This family could just as easily have done a background check if they had suspicions about a specific person. Public sex offender registries aren’t useful because they’re so overbroad. If a person shows up on a sex offense registry, there’s a fair chance that the person was busted as a teen for consensual sex, streaking or public urination, or sexting. For families that want to protect their kids, longtime victim advocacy organization Stop It Now has practical advice on how parents should see sex-offense registries.
Argument: “If it’s not zero recidivism, it’s significant recidivism.” This was Hamilton near the end of the debate–Horowitz finally got her to tacitly admit that re-offense rates for registrants are low. But then Hamilton changed tactics: any recidivism is too high.
Response: This argument is irrelevant to Horowitz’ key point: low, high, or in between, registries do nothing to affect recidivism. Public spending is always a choice—if you spend it on policies that don’t work, you’re taking away from programs that do. Horowitz points out that people like Patty Wetterling now say that we should take the millions of dollars that we put into registries and spend them on prevention efforts that work.
In the end, Horowitz carried the day by a wide margin: before the debate, 39 percent of the audience agreed with the proposition that registries should be abolished. Afterward, 72 percent did (a gain of 33 percent). For those disagreeing with the proposition, the figures were 22 percent and 16 percent (a loss of 6 percent). All told, that’s a 39-percent swing in favor of the resolution.
The efforts to change sex-offense laws are a long battle. But on this night, Horowitz’ tight arguments persuaded the biggest portion of an audience of mostly undecided people that it’s time for them to go. Hopefully they also convinced Hamilton herself.
Feel free to add your comments on the arguments put forward in this important debate.