The Unintentional Cost of a Free Public Sex Offender Registry

This literature review analyzes the efficacy of modern legislation guiding public access to sex offender registries and draws on research utilizing surveys, interviews, and statistical observations of convicted sex offenders to determine sources of ineffective practices at the legislative level. By utilizing Braithwaite’s reintegrative shaming theory (1989), in which stigmatizing shame is significantly less efficient in criminal contexts, current legislation and its impact on common issues experienced by sex offenders (including sexually addictive behaviors and childhood sexual abuse) are examined. The discerned prevalence of stigmatizing shame in modern legislation, which focuses on the individual rather than the undesirable behavior, indicates that contemporary legislation allowing public access to sex offender registries is ineffective at facilitating the rehabilitation of sex offenders, creating an unintentional cost for both the sex offender and the general public. Because of the limits imposed by the relatively few studies performed since sex offender registries were made public, further research should be conducted to evaluate more effective and reintegrative policies, which should then advise expedient legislative changes that will better benefit both the general population and those listed on the sex offender registry. 1 Leavitt: Cost of a Free Public Sex Offender Registry Published by BYU ScholarsArchive, 2020 75 It was John’s twenty-first birthday, and some of his college friends took him out for drinks at a bar to celebrate the milestone. Several hours later, after succumbing to peer pressure, John became intoxicated and could barely walk a straight line home. While being thus impaired, he decided to relieve himself next to a wall, only to realize that a child and the child’s mother were nearby. Because of a subsequent conviction of indecent exposure in the presence of a child, John is now listed on the public sex offender registry; along with Paul, a 23-year-old band member who was convicted for relations with a minor after she lied about her age; and Henry, who was accused and convicted of inappropriate relations by his high school girlfriend’s wealthy parents as soon as he turned eighteen. All three people, from adapted true stories, are now required to live determinable distances from child-prominent areas. According to state laws, one or two of them may be required to report in at night at decided curfews, but none of them will be able to avoid the complexity of obtaining employment as registered sex offenders. While the actions of John, Paul, and Henry are not condonable, it is often surprising to the general population that instances of relatively minor sexual crimes are included in the results of a local sex offender search. This is due to an upheld belief that local search results will be primarily saturated with serial rapists and pedophiles; thus, it tends to be inconceivable that such a search could contain results of family or friends who made unintentional mistakes. Several factors guide the presence and legislation of a sex offender registry (SOR). The foundational idea of an SOR is a requirement of the sex offender to notify local law enforcement of any changes to address or other identifying information (Thomas, 2013). This has been believed to help reduce recidivism as it should allow the local police to better protect citizens by being more aware of the sexual criminal’s location in the community, though this has not empirically been verified (Thomas, 2013). Despite a lack of evidence supporting the supposed benefits of SORs, countries around the world are progressively adopting legislation that requires documentation of sex offenders and, in some places, requires public disclosure of this documentation. The United States currently allows the most public The Unintentional Cost of a Free Public Sex Offender Registry 2 Intuition: The BYU Undergraduate Journal of Psychology, Vol. 15 [2020], Iss. 1, Art. 8 https://scholarsarchive.byu. edu/intuition/vol15/iss1/8 76 access to sex offender information, with the United Kingdom trailing in second place (Thomas, 2013). Public access to SORs in the United States began with two prominent acts of federal legislation: (a) the Wetterling Act and (b) Megan’s Law. The Wetterling Act, named after an 11-year-old boy kidnapped in 1994, is the first federal legislation requiring every state to maintain an SOR. Two years following, in 1996, this legislation was intensified by the adoption of a law known as Megan’s Law, requiring public access to SORs nationwide (Thomas, 2013; Vandiver et al., 2008). Beyond this rigorous federal legislation, many states and local communities opt for additional legislation, including community notification systems, which further impacts rehabilitation efforts of sex offenders (Swensen et al., 2014; Thomas, 2013). This expanding amount of legislation demanded by the general population indicates a misplaced trust and expectation that public knowledge of local sex offenders serves a protective function. However, relatively few studies in the twenty years since SORs were made public have analyzed the actual impact of a SOR, and even fewer have supported any believed benefit. Increasingly, some argue that when viewing SORs through well-established criminology theories (primarily Braithwaite’s reintegrative shaming theory), the legislation and publicity of SORs could be potentially detrimental to the rehabilitation of sex offenders. When reviewing ineffective stigmatizing shaming of the individual in comparison to effective reintegrative shaming of the behavior, as well as their application in legal settings with other crimes, there is significant evidence that stigmatizing shame plays a role in higher recidivism rates in the majority of criminal behaviors, including common crimes and white-collar crimes (Murphy & Harris, 2007; Ray et al., 2011). The personally identifying information of individuals listed on public SORs and other consequences of current legislation often facilitates stigmatizing shame through an exclusive focus on the individual. This indicates a likely relationship between public SORs and the rehabilitation (and consequent recidivism rates) of sex offenders—but perhaps not the positive relationship that the legislation intends. While published SORs are ideally intended to serve a protective function in the communities The Unintentional Cost of a Free Public Sex Offender Registry 3 Leavitt: Cost of a Free Public Sex Offender Registry Published by BYU ScholarsArchive, 2020 77 The Unintentional Cost of a Free Public Sex Offender Registry where convicted individuals reside, public access to unfavorable, personally identifying information of those convicted of various degrees of sexual misconduct should be re-evaluated to avoid potentially harmful effects, because such registries (a) typically facilitate stigmatizing shame, which may negatively impact effective reintegration, and (b) often worsen progress overcoming persistent issues (including addictive sexual behaviors and effects of childhood sexual abuse), which can potentially increase recidivism rates and put neighborhoods at even greater risk. Stigmatizing Shame and Its Impact on Reintegration To understand stigmatizing and reintegrative shame and their relationship to public SORs, it is imperative to understand their origins. In his book Crime, Shame, and Reintegration, Braithwaite first observed these contrasting patterns of shame and recognized shame as independent of punishment despite the societal norm to interchange the two ideas (Braithwaite, 1989; Hay, 2001). Punishment, then, is defined as either the loss of desirable conditions or gain of undesirable conditions; whereas, shame is primarily a socialcommunication device that communicates what is wrong and to what degree (Braithwaite, 1989; Hay, 2001; Steinberg, 2000). Braithwaite (1989) argued that shame requires consideration separate of punishment because shame is nonuniform in its application and implication. With two modes of possible shaming within the same punishment, it is necessary to understand and recognize stigmatizing shame and reintegrative shame especially within criminal contexts. A Comparison of Stigmatizing and Reintegrative Shaming By observing stigmatizing and reintegrative shame in normal communication, the pattern of functionality for both can begin to be analyzed. Ray et al. (2011) disclosed recorded conversations from mental health courts (MHC) that illustrate the difference of the two forms of shame as observed by Braithwaite (1989). In these detailed conversations, reintegrative shaming compares to the way a mother punishes a child, a boss encourages a coworker, or a spouse voices concern. In stark contrast, stigmatizing shaming compares to 4 Intuition: The BYU Undergraduate Journal of Psychology, Vol. 15 [2020], Iss. 1, Art. 8 https://scholarsarchive.byu. edu/intuition/vol15/iss1/8 78 polarized political confrontations, bad management, and emotional abuse. The differences between stigmatizing and reintegrative shame extend into their effectivity (Braithwaite, 1989). Although both are equally possible within the same punishment, it is essential to clearly recognize stigmatizing and reintegrative shame as distinctly different in how they communicate to comprehend the difference in yield of both patterns of shaming. Stigmatizing shame, with an exclusive focus on the individual, communicates that the individual is bad but does not allow room for the individual to remediate. This type of shame works against reintegration by creating a situation where the individual is labeled and ostracized (Ray et al., 2011). Such shame in criminal contexts is observed more in traditional criminal courts and can be measured by factors including respect, forgiveness, or disapproval towards the offender (Ray et al., 2011). With lower respect and forgiveness, but higher disapproval for the offend