VIA
ELECTRONIC MAIL
SMART
Office—Office of Justice Programs
Re: OAG
Docket No. 121--Comments on Proposed Guidelines to Interpret and Implement the Sex
Offender Registration and Notification Act (SORNA)
Dear
The U.S.
Department of Justice has invited public comment on the proposed National Guidelines for the Sex
Offender Registration and Notification of Act of 2006 (SORNA). In response to
that invitation, The Child Care Association of Illinois has reviewed the
interim Guidelines and submits the following comments and recommendations for
your consideration.
The Child
Care Association of Illinois (CCAI) is a not-for-profit membership organization
dedicated to improving the delivery of social services to the abused,
neglected, troubled and traumatized children, youth and families of
As
treatment professionals and child advocates, we have dedicated our professional
lives to preventing and eliminating child abuse. Any time a child is harmed or
killed by an adult sex offender, we and the public become very alarmed. We laud
your attention to this vital issue.
CCAI agencies provide a unique
perspective about the impact of SORNA on all children and youth because
they provide specialized treatment services to both victims and youthful
offenders. They
possess expertise as child advocates and as treatment professionals with
extensive experience working children and youth who have been abused and
neglected and those who have been victims of trauma, including sexual
offending. At the same time, many have created specialized programs for treating
juvenile sexual offenders in residential and group home settings, within foster
care and independent living arrangements as well as in out-patient venues. As a
result of our service delivery concentration and expertise, along with our
overriding concern about the safety of all children and youth, CCAI agencies fear that the impact of SORNA
on youthful offenders and their victims, as presently constituted, will undercut
the very purpose of the Act – which is to protect children from sexual abuse
and violent crime.
What
follows are the specific objections we have identified with the Proposed
Guidelines.
CCAI objects to the application of
SORNA to sexually offending youth adjudicated within the juvenile court system
because…
Application Of The Guidelines To
Youthful Offenders Is Contrary To Current Research
The
research, including research sponsored by the U.S. Department of Justice, does
not support the application of SORNA to youth.
Decades of
research emphasize that there are huge
differences between youth who sexually abuse younger children and adult sex
offenders. When children and teenagers engage in sexually abusive
behaviors, it is typically different from adult sexual offending in its nature,
extent, and response to intervention. Juveniles have significantly lower
frequency of the more extreme forms of sexual aggression, fantasy, and
compulsivity. A deviant sexual interest in young children, which is a major
motivating factor among adult sex offenders, does not appear to play a role in
the behavior of most children and teens.
With rare exceptions, these youth are not pedophiles. Rather, these behaviors are
opportunistic, driven by curiosity and poor judgment, and are more impulsive
than compulsive. These differences have been reported by panels commissioned by
the U.S. Department of Justice, by public information resources, and by
professional and research organizations. Despite this, SORNA subjects both
juvenile and adult sex offenders to the same registration and classification provisions.
According
to a Fact Sheet developed by the National Center of Sexual Behavior of Youth
(NCSBY), at the Center on Child Abuse and Neglect, University of Oklahoma
Health Sciences Center based on reports from the Center for Sex Offender
Management at the U.S. Department of Justice, juvenile sex offenders engage in
fewer abusive behaviors over shorter periods of time and have less aggressive
sexual behavior.1 In addition, the
recidivism rate among juvenile sex offenders is substantially lower than that
of adults (5-14% vs. 40%), and substantially lower than rates for other
delinquent behavior (5-14% vs. 8-58%). 2
In fact, more than 9 out of 10 times the arrest of a youth for a sex offense is
a one-time event, even though the youth may be apprehended for non-sex offenses
typical of other juvenile delinquents either before or subsequent to their
arrest for a sexual offense.3 The Center
also found that adolescent sex offenders are more responsive to treatment than
adult sex offenders and do not appear to continue re-offending into adulthood,
especially when provided with appropriate treatment.4
Research
indicates that most juveniles who commit sex offenses are boys around 13 or 14.
That may be their only similarity because they differ widely on other
characteristics. A small percentage (no one knows how many) will become adult
rapists or pedophiles; 90 percent or more, will not. Most have not committed
violent assaults or abused multiple children repeatedly. Usually they have had
sexual contact with a child who is at least two years younger than they are.
Some are overly impulsive or immature adolescents who are unable to approach
girls or boys their own age; instead, they engage in inappropriate sexual acts
with younger children. Others are delinquent juveniles for whom sexual abuse is
just one of the many ways they break the law. According to studies, these youth
are much more likely to commit a property crime than they are to commit a
second sex offense. Still others are otherwise well-functioning youth with limited
behavioral or psychological problems. Some come from well-functioning families
while others come from chaotic or abusive backgrounds. There are a number of
children who are adjudicated for “playing doctor”. Likewise, there
are the so-called “Romeo and
In
addition, recent findings from neuroscience indicate that brain maturation is a
process that continues into early adulthood. There is good evidence that the
brain systems that govern impulse control, sense of future consequences,
planning, and thinking ahead are still developing well beyond age 18. This lack
of maturity and impulsivity play a significant role in the sexualized
manifestations of what is truly an impulse control problem for many youth who
sexually offend. By placing juvenile offenders on the registry, for as long as
life in some cases, both avenues of research are contradicted.
Application Of The Guidelines To Youthful
Offenders Violates Longstanding Tenets Of Juvenile Justice
In 1899, the
first Juvenile Court in the country was created out of a belief that it was
unfair to try adolescents as adults. Since that time, the philosophy of the
Juvenile Court has been that children ought to be afforded special consideration,
guidance, protection and treatment because most youth who break the law in
childhood or early adolescence will grow out of this behavior with the right support
and direction. As a result, juvenile courts have protected the identity of
youth coming before it while dispensing individualized justice. These practices
are rooted in the belief that youth should not be stigmatized for life on the
basis of their childhood behavior. Court decisions about culpability and
subsequent sanctions, if any, have historically been based upon the best
interests of the child and form the basis for adjudicating youth in juvenile
court rather than convicting them in adult criminal court.
Thus, the
basic premise of the juvenile justice system is that adolescents who commit crimes
are different from adults in ways that make them potentially less blameworthy
than adults who commit similar acts. In the 2005 landmark U.S. Supreme Court
decision, the Court outlawed the
death penalty for offenders who were younger than 18 when they committed their
crimes. The heart of the ruling was the issue of culpability, or criminal
blameworthiness.
The legal
system has long held that criminal punishment should be based not only on the
harm caused, but also on the blameworthiness of the offender. How blameworthy a
person is rests on the circumstances of the crime and of the person committing
it. Traditionally, the courts have considered several categories of mitigating
factors when determining culpability. These include:
•
Impaired decision-making capacity, usually due to mental illness or disability,
• The
circumstances of the crime—for example, whether it was committed under
duress,
• The
individual’s personal character, which may suggest a low risk of
continuing crime.
Such
factors don’t exempt a person from punishment but do indicate that the
punishment should be less than it would be for others committing similar
crimes, who are different or who do so under different circumstances. Including
juveniles in the SORNA registration requirements not only violate our tradition
of American juvenile justice but also calls into question the very foundation
of the entire juvenile justice system. At the same time, it creates a special
class of juveniles who are explicitly required to suffer public identification
and stigma, possibly for the rest of their lives.
Application Of The Guidelines To Youthful
Offenders Will Be Harmful Rather Than Rehabilitative To Juveniles Who Offend
Labeling a
juvenile as a "child sexual predator" can have lifelong, irreversible
and detrimental effects on a person and his or her family members. When a young
person is so labeled, we are sending a very strong message: “This is how
you are going to be identified. This is who you are”. With such an act,
we remove the rehabilitative element that is the philosophical foundation of
our juvenile justice system and at the same time cement an identity that is
contrary to what we actually desire, which is a normal and healthy young person.
Many child
sex offenders are victims of sexual abuse themselves. Many more engage in
common sexual behavior, sometimes healthy, sometimes inappropriate, that, as
they mature, they will learn to manage. The stigmatization of registration will
isolate these youth from normal and healthy opportunities for growth and
development. Their access to school may be threatened. Their ability to join youth
clubs and associations may be restricted or forbidden. Their opportunities to
develop positive peer relationships may be denied because other parents will be
afraid to let them associate with their children. The consequence of
registration to youthful offenders will only exacerbate any problems they may
already have, destroy social networks critical for rehabilitation 5 and increase the chances that they will engage
in future criminal behavior, both sexual and nonsexual.6
Nearly 1/3
of sexually abused children will exhibit some sort of sexual behavior problem
in response to their abuse. In some cases, this behavior may involve other
children or younger children and result in a delinquent adjudication. It would
be a travesty of justice for these victims to be tarnished with the public
label of offender at the very moment they require specialized services as
victims which, in all likelihood, would be denied to them were they so labeled.
SORNA as
applied to youth will also have a negative and disruptive impact on their
families. Already under stress from the offender’s situation, the
families too may become isolated from normal community supports and assistance
just at the time when they need aid and comfort the most. They may have to move
or change jobs because of restrictions on residency, e.g., prohibitions on
living within so many feet of a park or school or within a structure. In the
majority of cases, the family’s address and phone number will be
published because that is where the youth lives and what he must report. The
community may initially wonder who the real sex offender is, not knowing
whether child or adult. Siblings will become identified as part of the family
and harassed by their peers. Their school may be the same one attended by the
offender.
SORNA as
applied to youth will also have a chilling effect on the identification and
proper treatment of youth who exhibit inappropriate sexual behavior. Faced with
the prospect that their child may be required to register, possibly for life,
parents will be more inclined to hide their child’s problem and not seek
help rather than holding their child accountable and seeking appropriate
treatment. As treatment professionals, we know that early intervention is critical
to successful therapeutic outcomes.
In addition, prosecutors and judges may be more eager to enter into a
plea agreement and reduce charges because the youth before them will be
required to register. In jurisdictions where adjudication is required for
treatment access, those youth who need rehabilitative treatment and who would likely
benefit the most, are those who would become inadmissible.
SORNA as
applied to juveniles will be a poor identifier of potential violent predators
and lessen the predictive value of the registry as a weapon for use by law
enforcement. SORNA was proposed as a comprehensive revision of the national
standards for sex offender registration and notification. The Act’s stated
purpose is to respond to "vicious attacks by violent sexual
predators" by reforming, strengthening and increasing the effectiveness of
sex offender registration and notification for the protection of the public.
The idea is to make identification of suspects readily available across police
jurisdictions to help them locate perpetrators based upon the premise that
those who offended in the past will be most likely to offend in the future. But
a number of re-compiled youth cohort studies over the last few decades have
discovered that the majority of children and teenagers adjudicated for sex
offenses do not become adult sex offenders. 7
Indeed, studies have found that 92% of all adult sex offenders were never
juvenile offenders. 8 Lumping low risk
youthful offenders in with high-risk adult offenders dilutes the usefulness of
the information and places an unnecessarily heavy administrative burden on law
enforcement as they search the ever expanding data base.
Application Of The Guidelines To
Youthful Offenders Who Are Developmentally Delayed Will Be Exceptionally
Atrocious
Youth who
are developmentally delayed and who commit sexual offenses pose a unique
problem in the juvenile justice system from an adjudicatory as well as a treatment
perspective.
One of the
hallmarks of mental retardation is the impulsivity with which these youth react
to a variety of situations. As puberty evolves and they experience sexual
feelings, they simply act on the impulse. From research, it appears that
developmentally delayed juvenile sex offenders are more likely to engage in
hands-off sexually problematic behaviors (e.g., public masturbation,
exhibition, voyeurism) and are much less covertly predatory than average IQ offenders.
At the same time, they are more likely to be caught due to their lack of social
skills and inept behavior. Youth who are classified as developmentally delayed
and who commit sexual offenses differ from average IQ juvenile sex offenders in
that their life is characterized by greater degrees of impulsivity, poorer social
cue interpretation, and fewer coping skills which subsequently leads to
increased frustration and even more impulsivity. What's more these youth are
more likely to have been sexually abused themselves.
While these
youth may know that what they did was “bad or wrong”, they most
certainly do not fully comprehend the ramifications of their actions because
they are functioning intellectually, at best, at the level of a 6th grader and
at worst, at that of a kindergartener or 1st grader. As a result, juvenile court
jurisdictions have been loathe to place these youth in detention, opting instead
for placement in highly structured behavior modification programs that teach
them impulse control. Unfortunately, as DD youth age chronologically they remain
child like intellectually so that offenses committed as “adults” will
likely land the DD person in prison with the general population, where they are
overrepresented, subject to longer periods of incarceration and more frequent
stays in solitary confinement (often for their own protection) and have less
access to alternative sentencing arrangements than non-disabled inmates.
The burden
of registration is particularly heavy on this population. One registration
requirement is that offenders, in writing, acknowledge that they understand the
registration requirements. How will the implementation of the Guidelines affect
developmentally disabled youth and children who may chronologically fall under
SORNA’s purview but who intellectually cannot understand the import of
their actions? Can they be held responsible for agreeing to something that they
do not truly understand? What if they do not have another responsible party to look
after them and make sure they report on time and in accordance with the Act? Given
their intellectual capabilities, that situation would be the same as expecting
a 2nd grader to report in person to a law enforcement official on a regularly
scheduled basis. Were they not to report would we send the 2nd
grader to prison? Will we send these people?
Application Of The Guidelines To
Youthful Offenders Will Violate Victim Protections In Many Cases
Conventional
wisdom among those who provide treatment to adolescent sexual offenders is that
many youthful offenders commit acts against other family members. Various
research attempts into this particular aspect of adolescent sexual offending
have found that anywhere between 18 – 43% of those who sexually offend do
so within their own family. SORNA registration requirements dictate that public
registration includes not only the name and address of the offender, but also
the offense and offense history. What that will mean for interfamily victims,
is that their identities will be easily inferred from the information posted on
the register.
The emotional
consequences of child sexual abuse can range from low self-esteem to serious
mental health problems. Many of these youth suffer from having been manipulated
rather than explicitly coerced into these activities. As a result, they may feel responsible
for, or at least complicit in, the sexual behaviors. The unintended consequence
of their public exposure will only serve to further heighten the sense of shame
and embarrassment many of them feel and impede their own progress towards
healing. They may be taunted at school or, worse, shunned by their peers and
their families reinforcing the belief that “it was their fault”. Stigmatization
will be a blanket they too will wear.
Application Of The Guidelines To Youth
Is Inconsistent With Other Portions Of The Act
Section
111(5)(B) of SORNA indicates that registration need not be required on the
basis of a foreign conviction if the conviction “ was not obtained with
sufficient safeguards for fundamental fairness and due process” for the
accused under guidelines or regulations established by the Attorney General.
Later on in this section, “sufficient safeguards for fundamental fairness
and due process” are deemed to have been obtained if the US State
Department, in its Country Reports on Human Rights Practices, has concluded
that an independent judiciary enforced the right to a fair trial. Further, the
conviction does not constitute a reliable indication of guilt if there is the
lack of an impartial tribunal, the denial of the right to respond to the evidence
against the person, or to present exculpatory evidence or of denial of the
right to the assistance of counsel.
Because of
the nature of juvenile courts, these proceedings are not adequate forums to
preserve the due process rights of youth for purposes of sex offender
registration and notification. When juveniles are tried in juvenile courts in
most states, they are not given the full scope of rights adult defendants
receive in criminal courts, such as a trial by jury. Knowing that the majority
of juveniles will not receive the full scope of procedural rights that adult
defendants receive which provide sufficient safeguards for fundamental fairness
and due process, juveniles adjudicated in juvenile court should be given the
same consideration as their foreign counterparts and not be placed on the
register.
Application Of The Guidelines To Youth
Will Place Those Identified At Risk Of Exploitation
The public
notification elements of SORNA as applied to youth will expose them more easily
to adult predators.
Just as
members of the public will be able to access the registry via the Internet and
identify offenders in any and every community, adults who are inclined to
exploit and abuse children and youth will also be able to access the registry
via the Internet and identify adjudicated youth within their own community.
Moreover, the youth’s exposure will not be limited to the Internet.
Pursuant to SORNA, registered youth will have to report to a centralized
location to provide certain updated information--bringing them into the
physical presence of others and making abusive and exploitative actions against
them much easier for adults still engaging in sexually offending behavior.
Recommendations:
The Guidelines Should Waive Public
Registration and Community Notification Requirements for Youth Adjudicated within
the Juvenile Court System
The
Guidelines should allow for the creation and/or maintenance of a separate
juvenile registry that is accessible by the identified authorities but not by
the general public. The law should also specify a designated agency, to
determine whether community notification is required and in what form, whether
in writing or posting on the Internet.
These allowances will serve the public safety purposes of the Adam Walsh
Act while maintaining the privacy provisions so fundamental to our juvenile
court system, furthering the ability of youth to take full advantage of treatment
and allowing innocent family members to maintain some measure of privacy.
The Guidelines Should Allow for Judicial
Discretion in Cases of Youth Adjudicated as Juveniles
If SORNA
must be applied to youth adjudicated within the juvenile court system, the
Department should allow judges to exercise some discretion when determining
whether and how long a youth must register as a sex offender. Judicial
guidelines should be promulgated that identify factors judges must consider
when exercising that discretion so that the application becomes consistent
throughout the States. This would take into account both community safety and
the critical differences between adult and juvenile offenders and maintain the
individualized dispensation of justice so central to the juvenile court system.
The Child
Care Association of Illinois supports safety for children and families throughout
the nation, efforts to hold offenders accountable and the protection of youth
and children. However, we believe that the Proposed Guidelines will have a negative
impact on our efforts to reclaim youth adjudicated as sexual offenders within
the juvenile court system and provide the protection for our children we all
long for.
Thank you
for the opportunity to comment on the Proposed Guidelines. We trust that our
comments will be given serious and thoughtful consideration.
Sincerely,
Associate
Director
Child Care
Association of
1-217-446-6066
References:
- Miranda,
- Worling, J.
- Zimring,
- Association for the Treatment
of Sexual Abusers (ATSA). (2000, March 11). The effective legal management of juvenile sex offender.
Retrieved from http://www.atsa.com/ppjuvenile.html
- Garfinkle, E., Comment, 2003. Coming of Age in
- Ibid.
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