Civil Rights Group Files Lawsuit Questioning Constitutionality of International Megan’s Law

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February 9, 2016; Newsweek

With all of President Barack Obama’s posturing for criminal reform these past few months, to some advocacy groups, his signing the International Megan’s Law seems counterintuitive to reforming the justice system. President Obama signed the bill into law on Monday, which will require convicted and registered sex offenders who committed crimes against minors to carry a special passport when traveling abroad. The law also requires the Department of Homeland Security to inform foreign governments when these select “covered sex offenders” are traveling into their territories. In response, several civil rights groups and commentators have come together criticizing the overreaching law for misrepresenting the statistics about sex offenders and endangering individuals on the registry.

The federal Megan’s Law, later a model for individual state laws with the same name, was signed in 1996 and is named after Megan Kanka from New Jersey, who was raped and murdered by a convicted sex offender living across the street. Her murder prompted lawmakers to pass the federal law that created the first public sex offender registry, allowing sex offenders to be monitored by members of the community.

The law is particularly relevant given that some sex offenders do travel abroad to exploit children in other countries. As indicated by the bill, child pornography and child sex tourism are international phenomena. International Megan’s Law would seem to provide another layer of provision and protection, since sex offenders will now be tracked and readily identifiable outside the country.

However, not everyone has been championing the law. Civil rights group for registered sex offenders California Reform Sex Offender Laws filed a lawsuit in U.S. District Court in San Francisco against Secretary of State John Kerry, Secretary of Homeland Security Jeh Johnson, and Attorney General Loretta Lynch alleging that the law violates the First Amendment, the Fifth Amendment, and the Ex Post Facto Clause. According to descriptions of the lawsuit, “A passport symbol that identifies an individual as a registered sex offender could place at significant risk that person as well as others traveling with them, including family members and business colleagues.”

Similar groups, like Reform Sex Offenders Laws and Florida Action Committee, have aligned behind the lawsuit. Citizens for Criminal Justice Reform in New Hampshire voiced its opposition to the law as it was making its way through Congress, contending that the law is “absolutely void of empirical evidence that it will promote public safety or reduce child sex trafficking.”

The concern for sex offenders’ safety may seem counterintuitive; however, it is also well founded. For example, according to the language of the bill, it doesn’t appear that there are any provisions that would monitor whether foreign governments share information about sex offenders with others outside the people who need to know. These are sex offenders who have been convicted of some of the most atrocious crimes. Could the American government control who has this kind of sensitive information? If not, does this law unduly put sex offenders at risk? Do we even care?

We should care when we consider exactly who is going to be monitored abroad and whether they should be monitored at all. One of the criticisms of the public registry, coinciding with the movement to reform sex offender laws, is that low-risk (sometimes no-risk), one-time offenders who were convicted in specific circumstances should not be included. For example, consider an individual convicted of statutory rape of a minor at 16 (when his girlfriend is 15 and the age of consent in his state is 16) placed on the registry. Activists and reformers have long wondered if he should be on the same list as a violent, repeat predator. Or what about the 19-year-old from Michigan who was flirting online with a girl who said she was 17, only to find out later she was 14 years old? In these circumstances, we must question whether the public registry is really doing its job. While their crimes may vary greatly and there are different classifications of sex offenses, the fact remains that they are still on the same registry with the same stigma. Although the registry was created to increase the community’s safety, it’s also the sex offenders’ safety that is in peril.

David Post at the Washington Post, a longtime critic of the state of the country’s sex offender laws, likened the qualifier on a sex offender’s passport to the yellow stars Jews had to wear during the Holocaust:

Passports are not merely the necessary implements for international travel—they are a basic badge of citizenship, and they are used for all sorts of identification purposes (opening a bank account, getting a job, getting a driver’s license) having nothing to do with international travel. There is something truly odious—“Scarlet Letter”-esque, one might say—about requiring people to bear, for their entire lives, this conspicuous badge of dishonor, whatever their prior crime (for which they have already been duly punished) may have been.

Post also pointed out in his piece for the Post that the law may unintentionally be harming these individuals who have committed a minor crime, in comparison to other possible crimes.

And the fact that the category of “covered sex offenders” includes many thousands of people whose crime involved consensual sexual relations with an underage partner, in many cases when they themselves were teenagers, just serves to make it seem even more wildly disproportionate; the notion that this entire class is somehow predisposed to engage in child sex trafficking is nonsensical, and squarely at odds with the actual recidivism data.

Indeed, as noted by Slate’s Leon Neyfakh, the registry and the law are based on an inaccurate premise that once sex offenders are released from prison, they will reoffend. “According to the findings, just 5.3 percent of the 9,691 released sex offenders in the [Bureau of Justice Statistics’] study sample were rearrested for a sex crime within three years of their release,” Neyfakh wrote. “Among male child molesters specifically, recidivism appears to be even lower: of the 4,295 male child molesters in the sample, just 3.3 percent were rearrested for another sex crime against a child within three years of their release.”

The goal of the law is noble: Stop sex crimes against children before they happen. Certain violent sex offenders who habitually reoffend should be monitored, if they are abroad. However, the law must acknowledge that not all convicted sex offenders are created equal. As some have already pointed out, an overreaching law may do more harm than good.—Shafaq Hasan

  • Rudy101

    This law does bring the legality of the registry into the international arena. Does it violate international law by requiring, WITHOUT HEARING a designation of dangerousness on all people of the class targeted?

    This issue WILL end up at the Unitied Nations. What happens if the U.N. declares these marks illegal? I assume they would declare it illegal becasue of the arbitrary nature of the mark. Putting a mark on a passport to protect people without a prerequisite finding of dangerousness I do believe this will be found to be illegal. The U.N. is going to get a case, just like one described in this article, where a 20 year old had s*xual relationships with his 15 year old girlfriend 25 years ago, they married, have children, have not had any trouble with the law, and now they can’t travel because no country will aceept them.

    I left the registry in order to protect myself and my RIGHTS. The registry is passed and applied ex-post facto, has no forum to challenge and is used to systematically isolate a person from the community without hearing, challenge or appeal. That is clearly illegal.