This article was originally published by the Collateral Consequences Resource Center on Nov. 24, 2020. Below is the Introduction written by Alessandro Corda, followed by excerpt of the material from Stephen Schulhofer. Footnotes have been omitted.

We are pleased to publish new research by Stephen Schulhofer about the treatment of sex offense registration in the UK, Canada, Australia, New Zealand, and the EU. The research, presented here with an introduction by Alessandro Corda, comes from material prepared for inclusion in an upcoming draft of the Model Penal Code: Sexual Assault and Related Offenses (full citation and disclaimer below).

Introduction: An Important Look at Foreign Policy and Practices Regarding Sex-Offense Collateral Consequences
By Alessandro Corda, Lecturer in Law, Queen’s University Belfast School of Law

The American Law Institute’s ongoing project aimed at reforming the Model Penal Code provisions on sexual assault and related offenses includes within its reach not only substantive criminal law provisions, but also collateral consequences applicable specifically to persons convicted of a sexual offense, in particular sex offense registries.

Sex offense registration and notification laws are a quintessential example of a collateral consequence of conviction that flourished during the so-called “tough-on-crime era.” The first sex offense registries in the United States were enacted in the late 1940s as a way “to inform the police of the whereabouts of habitual sex offenders.” The idea soon lost favor to so-called sexual psychopath laws. By the 1970s, however, such laws had likewise lost approval, “either being repealed or widely ignored as ineffective and unjust policies” (Hoppe, 2016, p. 577; see also Rice Leave, 2009). Everything changed in the 1990s, following high profile cases of abduction and sexual torture of children in the context of a climate of raising punitiveness.

The first state sex offense registration law was passed in Washington State in 1990 and applied to people convicted of certain sexual offenses. In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act as part of the controversial Clinton Crime Bill, requiring states to implement sex offense registries. In 1996, the so-called Megan’s Law amended the 1994 Act to require each state to provide notification and information to communities about convicted sex offenders living in the area for public safety purposes.[*] Prior to that, individuals convicted of a sexual offense only had to register with local law enforcement agencies, with public notification procedures available under certain circumstances. The subsequent Sex Offender Registration and Notification Act of 2006 (SORNA), also known as the Adam Walsh Act, rewrote the law in its entirety to mandate the creation of a nationwide online registration and notification system and provided a set of minimum standards to be followed across the United States (Jones & Newburn, 2013, pp. 444-46; Logan, 2009, pp. 429 ff.). Since 2006, a number of federal bills have added to SORNA’s provisions to address issues such as online safety and international travel by registered individuals.

As is well known, in Smith v. Doe (2003) the Supreme Court showed deference to legislative labels, holding that sex offense registration laws are civil, nonpunitive schemes and may therefore be enforced ex post facto. More recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, have addressed challenges brought against “new-generation” sex offense registration and notification laws, which significantly enhanced the burdensome character of such schemes. In recent years, important decisions have concluded that such new laws are to be considered as punitive in effect and must therefore be deemed unconstitutional if retroactively applied (see Logan 2018).[**] Significant reforms of U.S.-style sex offense registries, however, are yet to come.

In the notes under Section 213.11 (“Collateral Consequences of Conviction”) of the project’s Preliminary Draft No. 11 of October 16, 2020, ALI Reporter Professor Stephen Schulhofer (NYU School of Law) includes an interesting and important discussion of sex-offense collateral consequences—in particular, sex offense registries—in foreign jurisdictions, including the UK, Canada, Australia, New Zealand, and the European Union (as resulting from an important 2011 EU Directive on combating the sexual abuse and sexual exploitation of children). The key difference is that foreign nations make registry information available to law enforcement, but not to the general public. (Poland represents a notable exception in this regard in the European context, since European countries have been historically reluctant to publicly share criminal justice information concerning specific individuals).

The text of this discussion as prepared for inclusion in the next Council Draft is published below, with the permission of the author and the ALI.

While U.S. jurisdictions originated the model of contemporary sex offense registration and notification laws, triggering cross-national circulation and adoptions, foreign legal systems have adapted the original scheme to their national legal culture, principles, and political institutions. That being said, in a context of policy mobility like the one described, nothing prevents the U.S. from looking, for domestic reform purposes, at how other countries have received and regulated sex offense registration and notification laws on issues such as disclosure regimes, notification requirements, and the range of registration-eligible offenses. In fact, this comparative interest should be encouraged in order to broaden the discussion and the range of available policy options. Professor Schulhofer deserves to be praised for the attention paid to systems other than those found in the United States in this important reform endeavor.

[*] In an exemplary way, the U.S. Court of Appeals for the Sixth Circuit, ruling in 2016 on Michigan’s amendments to its Sex Offender Registration Act (SORA), concluded that “while SORA is not identical to any traditional punishments, it meets the general definition of punishment, has much in common with banishment and public shaming, employs geographical restrictions similar to those employed by punitive sun-down laws, and has a number of similarities to parole/probation” (Does #1-5 v. Snyder, 2016).

[**] In his remarks in signing Megan’s Law in May 1996, President Clinton stated the following: “Today we are taking the next step. From now on, every State in the country will be required by law to tell a community when a dangerous sexual predator enters its midst.” (President William J. Clinton, Public Papers, 1997, p. 763).

References:
Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016).

Hoppe, T. (2016). Punishing Sex: Sex Offenders and the Missing Punitive Turn in Sexuality Studies. Law & Social Inquiry, 41(3): 573-594.

Jones, T., & Newburn, T. (2013). Policy Convergence, Politics and Comparative Penal Reform: Sex Offender Notification Schemes in the USA and UK. Punishment & Society, 15(5): 439-467.

Smith v. Doe, 538 U.S. 84 (2003).

Logan, W. A. (2009). Knowledge as Power: Criminal Registration and Community Notification Laws in America. Palo Alto, CA: Stanford University Press.

Logan, W. A. (2018). Challenging the Punitiveness of “New-Generation” SORN Laws. New Criminal Law Review, 21(3): 426-457.

Public Papers of the Presidents of the United States (1997). William J. Clinton, Book 1. Washington, D.C.: U.S. Government Printing Office.

Rice Leave, T. (2009). Only Yesterday: The Rise and Fall of Twentieth Century Sexual Psychopath Laws. Louisiana Law Review, 69(3): 549-591.

Sex-Offense Registry Laws Abroad

By Stephen J. Schulhofer*

Many places outside the United States, including the United Kingdom (UK), Canada, and the European Union (EU), require persons who have been convicted of a sexual offense to register with law enforcement or other official authority. Like the United States, these jurisdictions have faced pressure to make sex-offense registry information readily available to the general public, but unlike the United States, they have generally declined to do so. Typically, their registry information is available only to law enforcement, or they permit somewhat wider disclosure, but only in limited circumstances. One fundamental reason is that other nations generally treat criminal-history information as confidential, in order to protect the privacy of those who have been convicted of crime and aid their rehabilitation.

A global survey conducted by the U.S. Department of Justice in 2016 found that many other nations maintain sex-offense registries, but in most cases they are either not available to the public at all or are available only upon inquiry by particular individuals or organizations under particular conditions. Virtually no foreign countries listed in the 2016 survey permit the prevalent U.S. practice of proactive notification of sex-offense registry information to unlimited community organizations and the general public. More recently, at least two Latin American nations have enacted sex-offense registry laws, but they too reject the U.S. practice of proactive community notification; access to sex-offense registry information is largely restricted to law enforcement, with limited exceptions.

Read the full piece here.