CHAPTER 2B: COMMUNITY RESPONSES - SEX OFFENDER REGISTRATION/COMMUNITY NOTIFICATION

As a result of recent public notification legislation (Pam Lychner Sexual Offender Tracking and Identification Act of 1996, section 115, General Provisions of Title I Department of Commerce, Justice, State, Judiciary and Related Agencies Appropriations Act, 1998), changes were required to conform to the Jacob Wetterling Act and Megan's Law. The Pam Lychner Act included the requirement that sex offenders convicted of particularly serious offenses and recidivism were subject to life long registration. States were required to comply within three years of the enactment of the bill (October 3, 1996) (Federal Register, 1998). States were allowed to file for a possible two-year extension from the date of the enactment (Federal Register, 1998).

CJSA requirements made far-reaching changes to the Wetterling Act and gave States greater leeway in how they chose to implement sex offender registration requirements. The intent of the Act was to assist law enforcement with guidelines to maintain public safety through the use of registration and transfer of information concerning sexual predators and recidivists. It gave the states a minimum standard of performance while allowing states to maximize safety for the public at the discretion of the state. It also does not require that a state implement the provisions by statute. A clarification process was implemented prior to the publication of the final guideline that was intended to assist States to hold to the intent of the law. We will explore some of these clarifications here.

Within the offense coverage it was not the intent of the law that all sex offenders be required to register. Registration is specifically required of individual offenders who committed particularly heinous crimes or have a history of recidivism (Federal Register, 1998). This includes aggravated offenders and recidivists. In determining whether an offender is considered an aggravated offender the following definition applies:

^{"As defined in federal law (18 U.S.C. 2241), which principally encompasses: (1) engaging in sexual acts in involving penetration with victims of any age through the use of force or the threat of serious violence; and (2) engaging in sexual acts involving penetration with victims below the age of 12 (Federal Register, 1998, pp. 6-7)."}

Registration requirement is not, for instance, imposed on individuals convicted of consensual adult sodomy. A more comprehensive coverage of offenses is contained in Appendix A. Although the Act states that the status of sexually violent predator be at the "recommendation of a board with specific composition (42 U.S.C. 14071(a)(2)(A)" (Federal Register, 1998, p. 6), the Attorney General can grant a waiver provided the state has an alternative procedure. Again, the Act leaves much to the discretion of the states. The Act often requires that the states in question have "alternative measures of comparable or greater effectiveness in protecting the public from less usually dangerous or recidivistic sexual offenders" (Federal Register, 1998, p 6).

In assessing whether a sex offender is considered dangerous or recidivistic, Oregon requires that the offender be scored in three of nine categories under their Risk Assessment Scale. The nine categories of criteria include: history of sex offense convictions, stranger to the victim, multiple victims, use of weapons, threats or coercion, predatory behavior, prior non-sexual criminal history, forcible rape, use of a weapon during the commission of the offense, and men who molest boys (multiple male victims) (Oregon Dept of Corrections, 1995).

Minnesota, for instance, requires that their committee, for the purpose of assessment, can have access to private medical data, welfare data, private and confidential court services data, corrections data and private criminal history data. This data, however, cannot be disclosed outside the committee (Minnesota Session Laws, 1996). It is interesting to note that Minnesota also has registration and notification for the following categories of offenders: murder under section 609.185, clause (2); kidnapping under section 609.25, involving a minor victim; and criminal sexual conduct under section 609.342; 609.343; 609.344 and 609.345 (Minnesota Session Laws, 1996).

Although the Act states that in order for the aggravated or recidivist offender to be mandated to apply for life time registration, it is left to the state to decide if they wish this requirement to be retroactive or proactive from the date the Act was implemented (prior to October 3, 1999 or afterward). Minnesota provides that community notification law will apply retroactively prior to the enactment of the law as they felt that without this protection children would be at risk for several years until future sex offenders were convicted and released. Although there was a question of constitutionality, Minnesota accepted the ruling in State v. Taylor, 835 P.2d 245 (Wash. App. 1992). This ruling in Washington found the law to be regulatory since the registration requirement for sex offenders did not technically restrain them. It further provided that any stigma was a result of the original crime and not the result of the notification (Bishop, 1996). Lifetime registration also requires that information be taken concerning "documentation of treatment received for any mental abnormality or personality disorder of the person" (42 U.S.C. 14071(b)(1)(B), (Federal Register, 1998, p. 6). The Act does not allow states to use treatment to issue certificates of rehabilitation once the offender has been categorized as an aggravated offender or recidivist.

In cases where the offender is released and immediately moves to another state, it is the responsibility of the releasing state to take pertinent information from the offender and inform the offender of a need to register. The releasing state must also have procedures in place to notify the state to which the offender is moving. Should the offender work or attend school in a state that is different from his state of residence, registration must be forwarded for all offenders whose category of offense is covered under the Act. Although some states feel this puts undue burden on them, the Act requires that they accept information forwarded. This can be done by having local law enforcement collect the information and forward it to the state's registration board. States may also enter into agreements with other states for information exchange. The Act only requires that "some procedures are in place to accept registration information from 'these categories of offenders (42 U.S.C. 14071(b)(7)" (Federal Register, 1998, p. 4). Forwarding registration information is not required for offenders who are not specifically covered under the Act although it is left up to the discretion of the individual state (Federal Register, 1998, p. 4).

Sex offenders who are within the category for registration do not have to inform states of employment where employment is less than 14 days (either full or part time) or a time period less than 30 days during a calendar year. They do not have to register in a state that they must travel through to get to their employment. These matters, however, are at the discretion of the individual state (Federal Register, 1998, p. 5).

The guidelines state that for certain categories of offenders, registration is required for a minimum of a ten-year period. Where states have a requirement of less than ten years, the state would not be in compliance with the Act. Exceptions to this category would only apply where the "offender had his/her conviction reversed, vacated, or set aside, or if the registrant is pardoned" (Federal Register, 1998, p. 3).

States have looked to the community and professionals for input in the enactment of procedures to comply with the minimum standards of the Act and to exceed those minimum standards in an effort to maintain public safety. Minnesota has mandated that those Level 3 offenders, who have the highest risk to re-offend, are subject to widespread community notification that include community meetings prior to the offender being assimilated into the community. Minnesota notifies local schools and day care centers of Level 2 offenders who have a moderate risk to re-offend. Level 1 offenders (low risk) only require that local law enforcement, victims and those who witnessed the original offense be notified (Bishop, 1996).

Organizations such as the National Center for Missing & Exploited Children (NCMEC), along with other organizations, offered strategies in an effort to dispel myths and educate policymakers in current research aimed at the long-term effects of sexual abuse on victims and current treatment alternatives for sex offenders. They noted that while the general public tends toward wanting to enact harsher punishment for sex offenders, this is often contrary to the wishes of some victims. Most victims knew their abuser and in fact were abused by members of their own families or caregivers. Two-thirds of imprisoned sexual assault offenders reported in 1997 that their victims were younger than age 18 and nearly four in ten imprisoned rapists reported that their victims were 12 years of age or under (NCMEC, 1998). These victims are hesitant to come forward unless the offender receives treatment while in prison or within a community-based program while on probation. There is a general consensus among organizations and professionals who have dealt with the issues of sex offender treatment and protection of victims that the triage approach is most effective when dealing with victims, offenders and the community. Tantamount to this approach is that offenders receive the longest possible post release supervision and long-term follow-up.

The National Center for Missing & Exploited Children made numerous recommendations. Included in these recommendations were the following criteria, "cases should be vigorously prosecuted to the fullest extent possible; prosecutors should not allow a sex offender to plea down to a lesser offense of a non-sexual nature; states should eliminate flat-time release without supervision for sex offenders; victims should be encouraged to cooperate with the criminal justice system but where the wishes of the victim conflict with the safety of the community, the victim's wishes should not be the determining factor; offenders should be expected to pay for community-based treatment; a revolving loan fund should be created for otherwise eligible offenders who are truly indigent; and offenders should be expected to contribute to victim-restitution funds. (NCMEC, 1998). Other suggested criteria will be explored more fully below.

Minnesota has in place a system to respond differently to high, medium and low risk sex offender situations. In 1996 for instance, Minnesota estimated that of the 300 sex offenders released from prison, 40 to 50 would be categorized within the high or moderate risk level (Bishop, 1996). Minnesota based their assessment tool on various criteria that can be further weighted by sex offender treatment professions. Factors specified in their legislation include seriousness of the offense, if the offender has re-offended, prior offense history, characteristics which include the offenders response to previous treatment and substance abuse history, availability of community support to the offender, existence of physical conditions that minimize the risk to re-offend and whether there is evidence that the offender will re-offend once released to the community (Bishop, 1996). In a study by Hare, McPherson and Forth (1988) a cross-sectional and longitudinal analyses examined the criminal histories of male psychopaths and non-psychopaths. Primary findings were that while non-psychopaths were relatively constant whereas with the psychopath criminal activity tended to decrease over the age of 40. Hare, McPherson and Forth did however state that their findings did not include sufficient subjects for the category of psychopaths between the 41st and 45th years of age (Hare, McPherson, Forth, 1988).

Assignment to a risk category in the State of Washington is done by an End of Sentence Review Committee made up of representatives of the Department of Corrections, juvenile corrections, the mental health division of the Department of Social and Health Services and the Indeterminate Sentence Review Board. The committee meets monthly and evaluates offenders eight months prior to the scheduled release of high-risk sexual and/or violent offenders. Information reviewed by the committee includes criminal history summary, psychological evaluation, pre-sentence investigation(s), and other relevant information (source: Dept of Corrections' Policy Number 350.500), (Matson & Scott, 1996, p. 4). Appendix C is a sample of a determination checklist used by Asotin County, Washington for ranking potential threat of a specific offender released to the community.

Community-based treatment programs for sex offenders should be considered an opportunity, not a right. Eligibility for community-based treatment should be restricted to less dangerous offenders and be denied to those who plead not guilty, nolo contendere or Alford pleas (NCMEC, 1998). Procedures for community based supervision in Wisconsin stress monitoring the offender accountability and the monitoring of the offender. The amount of monitoring depends on the risk levels of the individual offender. Those most likely to recidivate receive frequent visits from the supervisory officer, electronic monitoring, corrections housing and team supervision. Most offenders receive unannounced urinalysis, breathalyzer and blood sampling where the offender is known to have past substance abuse problems. They may also be subject to unannounced search and seizure of their residence and/or property. Sex offenders require mandatory treatment, prior approval of any or all contact with minors, change of residence or employment, and prior approval for travel. Violation of supervision results in increased degrees of supervision. Depending on the severity, the violation can result in revocation of supervision and immediate incarceration. Increasing levels of consequences would be a change in the general supervision rules. Increased supervision levels, change to more intensive treatment program, electronic monitoring, custody in a county jail, placement in a state institution for a period of time or revocation of supervision and incarceration is the continuum of response (Wisconsin, 1997).

The National Center for Missing & Exploited Children recommends that states should institute programs for victims that minimize the trauma on the victim. (e.g. victim/witness support programs, victims bill of rights, specialized personnel/units, secondary victim-treatment provisions, prosecution sensitive to child victims) (NCMEC, 1998). Two programs which are set up by the State of Wisconsin are the Parole Eligibility Notification System (PENS) and Victim Information and Notification Everyday (VINE). Victims and witnesses are required to register with the District Attorney's Office to participate in these programs. Persons registered with the PENS program receive written notification of pending offender parole hearings and pending date of release. Those registered with the VINE program may call a toll free number to learn if the offender is no longer in custody, the location of where the offender is incarcerated and eligibility date for release, mandatory release date and sentence expiration date (Wisconsin, 1997).

Procedures should be implemented to transfer, use and exchange registration information between states (NCMEC, 1998). Washington state requires that sex offender registration include the name, address, any aliases, social security number, place of employment, crime for which convicted, date and place of conviction and date of birth of the offender (Matson & Scott, 1996). A sex offender who changes residence within the community must register with the county sheriff within ten days. When moving outside the county the offender is required to notify the county sheriff and the previous county sheriff of the move within ten days. Statistics taken in 1996 from Washington State, based on it's Department of Corrections records, these indicate of 11,802 sex offenders, 84% registered and 1,890 failed to register. The information was provided via a telephone communication with Susie Coon, Washington State Patrol on October 8, 1996 (Matson & Scott, 1996). Since 1990 Washington has convicted 106 sex offenders for failure to register carrying a felony level crime. It should be noted, however, that within Washington State, the violation of Failure to Register crime is weighted based on the sex offender's original offense and the risk level category to which the offender was assigned.

Wisconsin requires that offenders report and update changes to current residence, employment or school, and vehicle identification. Offenders are required to do this for a period of 15 years following supervision and/or sentence. All offenders who have had two or more sexual abuse convictions, or who have been categorized by the Department of Health and Social services as a violent offender, is required to register for life (Wisconsin, 1997).

Communities should be educated and prepared for the release of sex offenders into their communities (NCMEC, 1998). Washington State uses a triage approach to community based meeting, using in combination an educational model of introducing the law to neighborhoods, a description of the individual and his/her offense and general education about sex offenses. A polling of jurisdictions in 1996 revealed that 150 meetings were held and during the last 22 meetings more than 1,740 citizens attended representing an average of 79 people per meeting (Matson & Scott, 1996). While many meetings were run by the Department of Corrections other professionals often also presented. These professionals were legal advisors, juvenile justice officers, representatives of the prosecutor's office, representatives from crime prevention units, school officials, mental health providers and community leaders (Matson & Scott, 1996).

The most effective format according to the Washington jurisdiction poll was to first present information concerning the law, sex offenders in general and safety issues, requesting that the audience held follow-up questions until all other details were presented. Prior to the question and answer period, the specific offender is discussed. One jurisdiction assures it's audience that any and all questions will be addressed prior to the close of the community meeting which generally acts to placate the fears of the audience. Information presented by the Seattle Police Department included: "the Community Protection Act of 1990, understanding what it means to have a sex offender living in you neighborhood, characteristics and behavioral indicators of a pedophile, sex offender fact versus sex offender myth and what citizens can do to protect themselves and their children from becoming the victim of a sex offender" (Matson & Scott, 1996, p. 11). Snohomish County in Washington also includes an explanation of Level II and Level II sex offender ratings. Description of the offender and a flyer is sent prior to the community meeting. The meeting follows the same general format as the Seattle Police Department and includes: the history and workings of the community notification law, discussion of child education, past crime of the offender and conditions of release. They also add a discussion of the consequences of harassment of the offender once he begins to reside within the community, followed by an individual question and answer period (Matson & Scott, 1996).

Washington State's program is considered to have one of the best Offender Notification Programs in the country. Handouts used for their Community Notification Programs and the desired results are included in Appendix B. Approval rating given by members of the audience to these programs ranked them at an average of 8.5% supportive on a scale of 1 to 10 (Matson & Scott, 1996).

Wisconsin's community based notification program stresses the intent of the law as flexibility, that is, a balance between the community's need to know and the offender's needs for privacy that increases the likelihood of the offender's success to not recidivate. It stresses sensitivity to the issues of the victim while acknowledging that registration and notification is not intended to be a further means of punishment but one of future offender accountability (Wisconsin, 1997). Several criteria is considered prior to allowing offender participation. An offender must currently be in treatment, without denial or defensiveness. He must also be aware of the potential adverse community reaction and be articulate in voicing his sincerity and purpose of attending the meetings (Wisconsin, 1997). Community participants sometimes question why all sex offenders do not receive wide spread community notification. Meetings are also used to explain that expanded notification can, at times, be harmful to the victim as many knew their offender as primary or secondary caregivers. Other secondary victims are the offender's children and family. Specific information is available to victims that includes of the name, aliases, address of the offender, vehicle information, date information was last updated, and the supervising agency and the supervising agency's telephone number,. The general public is allowed information as to whether an offender is on the registry, his name, aliases, date of conviction, vehicle information, supervising agency and phone number, and date information was updated (Wisconsin, 1997). Note that this group is not informed of the offender's address. Neighborhood watch groups are also not given the address of the offender but are given the names of all registered offenders who work, live or go to school within the perimeters of the neighborhood watch group (Wisconsin, 1997).

A policy of zero tolerance for acts of harassment or vigilante violence directed at offenders upon release into the community should be enacted (NCMEC, 1998). Washington State takes a pro-active stance against harassment of sex offenders after community notification has been given. The state's registration laws have been in effect since 1993(Matson & Scott, 1996). It is generally accomplished by warning flyers and door-to-door warning during sex offender community based notifications. After community notification in 1993, one offender's planned housing was burned down. This crime was never solved. Several other incidents occurred during that period of time. Other harassment tactics had been the picketing of an offender's apartment until he eventually moved out, threatening phone calls, rallies, verbal harassment, and rocks thrown at offender's homes. Other incidents included an assault on a juvenile sex offender at school, threats by electronic mail and harassment of the families of sex offenders. During the period of 1993, in the state of Washington, there had been 942 notifications with harassment statistics at 3.5% of all notifications (Matson & Scott, 1996).

Where sex offenders attend Wisconsin community notification programs, local police are notified and agree to provide protection to the offender should community participants become unruly or violent (Wisconsin, 1997).

Community notification systems should be uniform nationwide and based on model guidelines and procedures (NCMEC, 1998). Leading models include Minnesota, New Jersey and Washington. Minnesota based their community education program on Seattle Police Department's model of community education. Law enforcement agencies within the state were mandated to develop a model that included contents and form of community notification documents, disclosure guidelines for each offender risk category, state method of follow-up notifications. It also included the need for educational content which would assist the community in using information to assure their safety , procedures to assure that the community is aware that an offender has the right not to be harassed and an educational element to assure that the offender is aware of the rules and regulations governing offender registration and the spectrum of responses which might occur from the community upon release (Bishop, 1996).

Sex offender registration process should be ordered by the courts at the sentencing and it should include DNA, HIV status, fingerprints and handwriting samples, to be ordered by the courts at sentencing (NCMEC, 1998). In fact, Wisconsin requires by law that most of their sex offenders "provide a biological specimen for DNA analysis" (Wisconsin, 1997 p.5).

Laws should be enacted permitting police to notify the community upon release of dangerous offenders into the community (NCMEC, 1998). As a result of compliance with the 1996 Act, concern was voiced regarding civil law suits that might arise as a result either community notification or lack of community notification in the case of lower level released sex offenders. The 1996 Act however, addressed this concern offering civil immunity to those entrusted with the task. The 1996 Act states

Media should promote awareness of the wide range of offenders and their varying risks (NCMEC, 1998). When notifying the community of sex offender's establishing a residence, Washington State used media releases in 91% of the jurisdictions, door-to-door flyers 62% and mailed flyers, 24%. The difference between Level II and Level III was the type of media distribution used. Level II notifications included press releases, along with other media contact. Where neighborhood contact was involved, flyers were also distributed to the neighborhood. Neighborhood contact encompassed three square blocks from the offender's residence (Matson & Scott, 1996).

Wisconsin, through community-based programs, educates the public that there is no stereotypic sex offender. Offenders can be male or female, mother or father, and any caregiver who may be responsible for the well being of the victim, both in the home or in the community. The profile of such offenders is that they based their acts on secrecy, sometimes disguised in the form of sex education but in many other ways also the abuse of a parental role or abuse of power. Many of these occurrences take place over a period of time and may or may not be focused on one age group or gender. They also note that many sex offenders will target children of single-family households and will attempt to ingratiate themselves to the primary or secondary caregiver's of their intended victim(s). Participants are also informed that many other sex offenders do not initially know their victims but place themselves in employment opportunities or other volunteer positions that will involve access to children and will give the appearance of their value as a trustworthy adult (Wisconsin, 1997).

States should mandate child-safety/protection curricula in the schools (NCMEC, 1998). Within Minnesota's education program a component teaches parents how to respond to the concerns for their children's safety. The program empowers the child rather than increases the child's fear of harm. It follows a general rule that silence and secrecy do not promote safety. Parents are advised to use role-playing to rehearse situations that might arise for the child. Each child needs to be aware that it is ok to state personal boundaries in the form of "no" when they do not wish to be hugged regardless of the person's familiarity with the child. It educates the children that adults do not generally ask children for directions and should this occur then the child should not approach the car. Should the child be followed they should not try to hide but should seek assistance where other people congregate. The Minnesota program also advises that children's pictures should be taken yearly and for pre-school children, four times a year (Bishop, 1996).