“IN AN EFFORT TO MAKE THINGS MORE SAFE, WE WE ARE MAKING THINGS MORE DANGEROUS.”[1]
Oregon is spending millions of dollars on a system that is useless for its intended purpose – and, in fact, causes harm to thousands of people. The law requires everyone convicted of a sex crime to register with the Board of Parole and Post Prison Supervision (BPPPS). Currently, 31,000 people are on the Oregon Registry. The intent is to prevent future sex crimes by monitoring those who have been convicted, regardless of whether the crime is sexting or serial rape. The problem with this approach is that the vast majority of those convicted of sex crimes are unlikely to commit another sex crime. Only 5.6% do. While for decades we monitor the sexually curious 10 year old who touched his 6 year old sister’s private parts, the sexual psychopath can be lost in the numbers.
In 2013, the Oregon Legislature adopted a new way to categorize sex offenders, changing from a crime-based system to a risk-based system. The BPPPS was to have it in place by the end of 2018. But having to assess the risk level of over 30,000 people, the Board has made little progress -- despite the fact that risk levels are determined by a simple 10-item check list, called the STATIC-99R. Though widely used throughout the U.S., it is controversial. The STATIC is an actuarial tool, i.e. it was developed by pooling populations of sex offenders and discovering what they had in common. None considers the seriousness of the sex offense for which he was convicted.
A person receives points against him (the STATIC is not applied to women or juveniles) for being less than 34.9 years of age at release; for not having lived with a lover for at least two years; for having an unrelated victim, a stranger victim or a male victim; for having four or more prior sentencing dates for other crimes, however minor; for having been convicted of a violent crime at the same time as the sex offense; for having been convicted of a prior violent crime; and for having committed prior sex offenses. If the offender receives a score of three or less, he is considered at low risk to reoffend (Level I). If his score is four or five, he is at moderate risk (Level II). High risk offenders are those scored six and above (Level III).
How does this square with the more accurately determined recidivism rate of 5.6%? It doesn’t. A person who has a history of greater involvement with the criminal justice system – not because of prior sex crimes – will score higher and be considered a greater risk of committing another sex crime, not another non-sex crime which is more likely. But only those who have committed a sex crime are placed under surveillance for anywhere from five years to life, even though they are less likely to commit a future sex crime than someone who has never been convicted of one.
“THE LABEL [SEX OFFENDER] IS THE MOST REPULSIVE, ALIENATING LABEL WE HAVE. THESE ARE EFFECTIVELY THE LEPERS OF OUR TIME. THE LARGER CONCERN SHOULD BE ON PREVENTING THIS FROM HAPPENING IN THE FIRST PLACE."[2]
This makes no sense. It reflects our knee jerk reaction to the rare but heinous sex crime (usually the kidnapping, rape, and murder of a child) committed by a psychotic serial offender. When these crimes occur, we understandably and laudably want to do something to prevent them happening again. Yet in our haste we pass legislation, set up huge bureaucracies that are based on myths about sex offenders (‘once a sex offender always a sex offender,’ ‘all sex offenders are alike’). And once the bureaucracy is in place, it is very hard, if not impossible, to change – regardless of whether it is effective or not.
The consequences are harsh – for those placed on the Registry and those we seek to protect. Former offenders will face the suspicion of those whom the police notify (neighbors, school officials, colleagues, fellow church members, etc.). They will find it difficult to get a job or find a place to live. They fear vigilante violence by some righteous person who finds them on the Registry. While Oregon places only those who have a STATIC score of six or above on the public registry, it is easy to find others through private for-profit websites.
Oregon provides a possible way off the Registry for everyone except Level III offenders. After five years from the date supervision ends, Level I offenders may APPLY to be removed. It is up to the Parole Board or the Court to decide if they meet the lengthy criteria in the statute.[3] After 10 years, Level II offenders can apply to drop down to Level I and, after five more years, they may apply for removal, a total of 15 years.
For example, a young man convicted of statutory rape (consensual sex when he was 20 with a 15 year old) with a five year sentence could be on the registry until he is 40 if he has had other problems with the law. Given that African American men are over-represented in the criminal justice system, they are more likely to score higher on the STATIC, which makes the STATIC – and the whole Registration system -- discriminatory. It also discriminates against gay men – note the extra point if the victim is male. Constitutional challenges to registration have mostly been unsuccessful since the majority of courts consider it a regulatory scheme, not punishment, where constitutional protections (ex post facto, due process, and prohibitions on excessive sentences) apply.
Every state and the federal government requires registration of people convicted of sex offenses. Despite the fact that registration is ineffective in making us safer, we are unlikely to get rid of it and put money into prevention of sex crimes and treatment of offenders, because we have invested millions of dollars and countless hours to build the registration edifice. More than that, the myths about sex offenders prevent even minor reform, lending themselves to salacious headlines and opportunistic politicians focused on reelection or higher office.
Perhaps the only way to bring down this behemoth and divert resources to something that works to prevent sexual assault is to wait until the system reaches its logical conclusion and a majority of citizens are or know someone who is on the registry and become intimately familiar with its destructive consequences.
[1] Cathleen Meaden.
[2] Laurie Guidry, Massachusetts-based licensed clinical and consulting psychologist who focuses on the treatment of sex offenders and the prevention of sexual violence.
[3] ORS 163A.125 (5) sets out nine specific items the court must consider, plus “any other relevant factors.”