Is Megan's Law Flawed?
She was, by all accounts, an adorable little girl who loved animals, bicycling and the color pink. And so, when seven-year-old Megan Kanka of New Jersey was raped and murdered at the hands of her neighbor, a convicted sex offender, three years ago, the horror of that crime raised an archetypal shudder of revulsion and anger in every state in the nation. Like the earlier kidnapping and murder of another child, Petaluma resident Polly Klaas, the crime against Kanka seemed to flout our powerlessness in the face of evil, our failure as parents to keep away the predators who would stalk our children. That both killers in these well-publicized cases were convicted felons was unconscionable. Public outcry demanded an explanation for such monstrous crimes and public outcry in both cases received prompt public attention from elected officials. In the Klaas case, the hue and cry over the arrest and trial of convicted kidnapper Richard Allen Davis' crime resulted in state legislators and state voters passing California's "Three Strikes" law aimed at putting an end to multiple violent offenses. Similarly, in the three years since Kanka's death, some 45 states have passed some version of what is now called "Megan's law"-legislation essentially aimed at notifying the public about convicted pedophiles in their neighborhood. There's even federal money tied to adopting Megan's laws. Thanks to national legislation that whizzed through both houses of Congress, signed into law by President Clinton in 1994, and amended in 1996, every state in the union by Sept. 13 of this year will be required to register pedophiles or risk losing federal crime-fighting grants. They'll also be required to make public a register of those offenders released or paroled from prison. California, which has 64,000 registered violent sex offenders-more than any other state in the nation- signed on to the concept of community notification in a big way. Only in California are state public safety officials required to allow members of the public to actually view photographs, names, descriptions of sex offenders-people convicted of violent sex crimes against adults, as well as any sex crime against children-on a CD ROM. "It [Megan's law] is probably the hottest legislative title in the nation," quipped one Sacramento insider who asked not to be named. But hot or not, there are indications that "Megan's law"-particularly as it applies to California-is flawed. Legislators, in their scramble to strike a blow against evil and for public safety, may well have created a system that at the very least lulls those who rely on community notification into thinking they now know how to protect their kids. At its worst, they may have created a policy that not only doesn't work, but actually worsens the problem of pedophilia by driving offenders underground-all in an atmosphere of public hysteria that has already led to violence and vigilantism. And, they've done all this based on premises that are in some cases overstated, and in other cases, outright false. "Most legislators I think adopted these laws as a kind of knee-jerk reaction," observes Monterey City Attorney Bill Conners. "Megan's law, I think is going to be self-defeating-and I say that hoping that I'm wrong."The Big Fallacy Imagine community notification legislation as a house, and you'll notice plenty of problems with the foundation. Perhaps its biggest fallacy-and the ostensible reason for passing Megan's laws in the first place-is the belief that publicizing the names, faces and locations of convicted sex offenders will keep them from repeating their crimes. "An offender is less likely to act, knowing that the community he lives in is aware of him," says Rob Stutzman, press secretary to state Attorney General Dan Lungren. In California, which has had a mandatory registry for sex offenders for 50 years, law enforcement officials often had information about sexual predators that might show up on a law enforcement data search, but that couldn't legally be shared with members of the public. "Now if you were a parent, and you were down at a park and some fellow showed up with a tattoo on his arm, and you were concerned about that individual and knew nothing else, under normal circumstances you would not have been able to [do anything about it]," explains George Passantino, a consultant to Assemblywoman Barbara Alby, R-Fair Oaks, who has been the virtual godmother of community notification legislation in California. Now, thanks to AB 1562, authored by Passantino and signed into law last year, parents can check up on potential predators two ways. They can go down to their local sheriff's department and search through the CD ROM directory compiled by the state Department of Justice, which lists and sorts information on predators by Zip code and physical characteristics. And, depending on how the potential defender has been categorized by law enforcement officials, it's also possible to learn about a violent sexual offender in the neighborhood directly from police or sheriff's deputies, who will bring that information right to your door. Under guidelines developed by a special statewide Megan's Law Task Force composed of various law enforcement, police training and department of justice officials, police can tell the public about "high risk sex offenders"-i.e., those most likely to re-offend, based on the type and frequency of their crimes. And to do so, they can use just about any means available, from televised bulletins, to flyers, to newspaper ads and billboards, to door-to-door disseminations. They can also-although they don't have to-release the home and business addresses of these offenders, although they must verify the addresses before they are disclosed. Less-dangerous "serious" sex offenders will appear on the CD ROM, but their names will be broadcast by local police only on a case-by-case basis. In the city of Monterey, Police Lieutenant Stan Perry says police in June decided to inform neighbors of the presence of the city's only high risk offender, Charles Allen Holifield, because he had moved to a rental near Monterey High and his two previous convictions had involved the rape and attempted rape of teen-aged girls. Other city police departments may decide to notify the community of all high risk sex offenders as a matter of course.Ironically, the only known study of the effects of community notification on recidivism was done in 1995 by a public policy institute in Washington, the state with the oldest community notification program on the books. That Washington State Institute for Public Policy study included a comparison of two groups of adult sex offenders who were released and tracked for 54 months. One group was subject to the state's highest level of community notification, the others were released prior to implementation of Washington's community notification laws. The study concluded that there was no statistical difference between re-arrest rates for the two groups. Both groups were approximately 50 percent likely to be arrested for any crime and about 20 percent likely to be re-arrested for a sexual offense. "Unfortunately," states the study's conclusion, "the findings suggest that community notification had little effect on recidivism as measured by new arrests for sex offenses or other types of criminal behavior." Again and Again California's Megan's law registrants aren't necessarily on parole. Many of them have served time for either violent sex crimes against women or sex crimes against a child and will be required to register with authorities for the rest of their lives. Megan's laws take the additional step of relaying that information to the public-a step that, in various parts of the country, has posed constitutional problems, raised privacy questions and created an ambiance of vigilantism that just last week resulted in the firebombing of a van owned by a convicted child molester in Los Angeles. Why does the public need to know about neighbors who've served time for sex crimes, but not those who have been convicted of murder? Megan's law proponents over and over cite the problem of recidivism, an almost mythical belief in what they say is the destiny of sex offenders-particularly pedophiles-to repeat their crimes. What do studies really show about the likelihood of child molesters to repeat their crime? That depends on what study you read. A 1973 California Department of Justice study of 420 offenders examined over a 15-year period showed that offenders convicted of rape were 23 percent likely to be arrested again for a subsequent sex offense, while those convicted of incest, sodomy, oral copulation or lewd and lascivious behavior were 17.7 percent likely to be re-arrested for another sex offense. California Department of Corrections tables of recidivism rates don't specifically separate out sex crimes against children. But the department consistently shows the recidivism for rape hovering at around 40 percent in the first two years after release. The state's highest recidivism rates in the years from 1991-95 were for those convicted of petty theft, who statistically stand about a 70 percent chance of re-arrest for the same crime-and no chance of having their sins broadcast to unsuspecting neighbors, at least at this point. A 1994 umbrella analysis of five other studies on recidivism was undertaken by the Washington Institute and provided what may be some of the most useful information on the habits of sex offenders. According to authors Lin Song and Roxanne Lieb, exhibitionists (who aren't affected by California's Megan's law) and rapists were more likely to be re-arrested, re-convicted or returned to prison for the same crimes than were child molesters who victimized little girls. Child molesters who victimized little boys were statistically more likely to re-offend than those who victimized little girls. Incest offenders who had been arrested were statistically only 4-10 percent likely to repeat their crime. According to these researchers, the recidivism rate for pedophiles varied from 10-29 percent (for girl victims) to 13-40 percent (for boy victims). In other words, convicted molesters are more likely not to repeat their crimes-a fact that's definitely gotten lost in the public debate over Megan's laws. "Some celebrated cases that are upsetting stick in the minds of the public," says Dr. Fred Berlin, founder of the 17-year-old Sexual Disorders Clinic at John Hopkins University in Maryland. "There's some very skewed reporting in terms of the failures being out there where the public hears about them." Berlin cites his own statistics based on a 1991 study published in the American Journal of Forensic Psychology. That study looked at 600 people with sexual disorders who were treated at John Hopkins. Five years later, "92 percent were not accused of a subsequent offense," says Berlin. Does that mean pedophilia can be cured? "No," says Berlin, "but that doesn't mean they can't be successfully treated. That's like asking where alcoholics can be successfully 'cured.' We don't talk about a 'cure' for alcoholism, because people need to maintain a daily vigilance. But that doesn't mean they can't learn to resist unacceptable cravings. That's the same thing with pedophilia. Pedophiles, sadly, have cravings for children, but just as alcoholics learn to cope without being a danger to the community, the same can be said for pedophilia."Who's Preying on Our Kids?The third big fallacy about Megan's laws is that community notification will stymie the creeps and perverts who ostensibly lurk in the shadows of every community, waiting to prey on children. Written in the aftermath of Kanka's killing, Megan's laws are premised on the that concept, and may, in conjunction with the Child Molester Hotline created by the state two years ago, act as a preliminary screen for parents and those who provide services to children. "What we've seen on the 900 line often will be women checking on a man they've started to date, or even parents checking in on the new live-in boyfriend of their daughter," says Stutzman. Law enforcement officials say that the CD ROM alone will also allow police and sheriffs better access to information about pedophiles who don't register, particularly as the public interacts with the data base and gives police feedback on whether registrants have moved. Just last week, police near Sacramento were able to arrest a man who was baby-sitting children after a neighbor recognized him from the CD ROM registry of sex offenders. In Santa Clara, neighbors turned in a convicted sex offender seen talking to teenage boys-a violation of the offender's parole. And in Salinas, police last month were able to take advantage of the very latest in tracking data and "stopped a guy and found that he was a sex offender for 18 years and had never registered," says Steve Hood, a police lieutenant in the city of Salinas. "He said he had had a hundred contacts with different law enforcement officers. " Scott Matson, a research assistant with the Washington State Institute or Public Policy-which is in the midst of a study on reaction to Washington's community notification programs-says law enforcement officials surveyed by the institute feel community notification programs provide "an extra step in getting the community to have a more vested interest in sex offenders." "Overall, law enforcement felt [community notification] was a great tool in that it educates the public," reports Matson. "Offenders," explains Stutsman, "often operate in anonymity. They have a game plan of luring children to them. That's often the MO. If the community is aware of the individual's proclivity, the likelihood is that the offender will not be able to repeat their crime and create another victim." But sadly, statistics tell us that pedophiles don't have to lure their victims. Figures released from the US Department of Justice in January indicate that in 90 percent of the rapes of children younger than 12, the children knew their offender. Contrary to the image of the man with the raincoat in the park, pedophiles are likely to be people children know, trust-and love (see related story, page 9). And, as parents pour over the photos in the Megan's law CD ROM trying to memorize facial scars and tattoos, they may forget to notice the behavior of the folks they see every day. "It's a fallacy to think that there's one bad guy out there, " says Monterey Rape Crisis Center Community Relations Director Leda Tully, "that if we mark him and get his picture out, that we know who this bad guy is, and all we have to do is keep away. It's much more scary to consider that my husband, my child's stepfatherÉor an uncle or grandfather could possibly do something to someone he loves." "I loved my grandfather," says Kate, a teacher and advocate for child abuse victims who was herself abused by a relative for a decade, beginning when she was 18 months old. "I think society has to gain a new understanding about who and what pedophilia is. It's not some stranger lurking out there." As a survivor of child abuse, Kate says she's "conflicted" about Megan's law. On one hand, she favors keeping pedophiles away from places like schools where they're likely to come in contact with children. On the other hand, she admits that she herself would have felt shamed and identified by having the relative who abused her on a public list. "We want to demonize these people and turn them into the 'other' and say they haven't any rights," says Elisabeth Semel, a San Diego-based attorney who serves as a board member for the National Association of Criminal Defense Lawyers. "That holds true until it turns out it's your uncle, or your husband, and then people begin to feel different about how those individuals should be treated." Chaos with a "C" Why should anyone care about what happens to someone who's been convicted of such a horrendous crime? Well, there are some pesky Constitutional issues that have plagued and derailed portions of Megan's laws in New York and New Jersey pertaining to how community notification laws apply retroactively to felons sentenced before Megan's laws went into effect. There are also legal questions about whether broadcasting someone's name and criminal history constitutes applying additional punishment to a felon who has already served his or her time. Semel says courts have so far held that community notification laws constitute regulation for the sake of preserving public safety, rather than an additional punishment. "To me, the extent to which privacy is taken away is punitive," says Semel, who disagrees with the courts' assessment, and predicts more public disclosure of crimes in the future. "There is a very extreme element out there. One legislator has even said all drunk drivers should have red license plates. We are going to tag and label everybody. It doesn't end, and we need to pull way back." "The 'Scarlet Letter' phenomenon doesn't bother me," says Scott R. Porter, a district attorney in Monterey County. "By the time these folks get to that level, they've already done so much evil that [notification] is a small concern in our society." A larger concern is what the presence of that 'Scarlet Letter' has done to society as a whole. Frightened, angry and frustrated by the suddenly unveiled numbers of people we see as evil incarnate in our midst, Megan's laws have exploded in our midst like a match on a summer hillside. Evidence of that conflagration abounds. In Monterey and San Francisco, notices were posted anonymously by members of the community accusing two different men of sex crimes. In the Monterey case, police say the accused was a Megan's law registrant, but he didn't fall into a "high risk" category police would have told the community about. Meanwhile, last month in San Francisco, flyers falsely accused a Bay Area artist of being a sexual predator, despite the fact that the man had no police record of sex crimes. Even when notification about a sex offender is valid, it doesn't take long for public concern to border on public hysteria. In Santa Rosa, neighbors gathered to protest outside the home of a Megan's law registrant; in Santa Cruz County, it's forced at least one offender to move from place to place. In Monterey, it cost Holifield his job, and ultimately his place of residence after his landlady Grace Lou Osoinach-acquiescing to neighborhood pressure-evicted him. "I've had some of the most repulsive calls you ever want to hear," says Osoinach, who reports that one anonymous caller ordered her to "make him [Holifield] move." Another caller told her "If he [Holifield] rapes a little girl, you ought to be executed." At a June meeting held by neighbors near to where Osoinach lives, concerned residents reacted in frustration when they were told by city officials that they could not put additional conditions on Holifield-or receive additional police patrols. Several residents asked how to get Holifield to move out of their neighborhood-and presumably into someone else's. "It [Megan's law] is a good thing in that they notify people of a sexual offender," says Rosalie Ferrante, a neighbor of Osoinach's boarding house. "It's a bad thing in that after they notify you that you have a high risk sex offender in the neighborhood, you have no recourse." In other parts of the country, Megan's law registrants have had their homes and vehicles burned and it's entirely conceivable that pent-up rage over public powerlessness might again find violent outlets, despite penalties in California of fines and prison sentences for using Megan's law information for unlawful purposes. "Vigilantism," concedes Porter, "is very possible." "It's going to be chaos with a capital 'C'," predicts Thomas Worthington, a criminal defense attorney. "We will have vigilantism. We will have people who have lived clean and law-abiding lives for years and years. We'll have them blacklisted and absolutely ruined." Already, Porter says he's noticed a decline in the number of people willing to plea bargain on sex offense cases, since conviction now means public notification. "It increases the number of trials," says Porter. "Basically, this is an added consequence. You can't plead quietly and go about your business. You plead to a sex offense and we're going to know about it and your neighbors are going to know about it. Now it's not only the ultimate taboo. It's the ultimate taboo and we're going to know about it."Heading UndergroundPerhaps more importantly-at least from a public safety perspective-Megan's law may also force us to lose the very offenders we're trying to track. By law, sex offenders who fail to register with local police departments or who fail to re-register when they move to a new location, have committed a felony-one that could count towards California's "three strike" prison terms. But given the current mob mentality, given the possibility of being driven from neighborhood to neighborhood, given the likelihood of becoming unemployed-and unemployable-it's not hard to imagine sex offenders choosing to take their chances living on the lam. "Why would you want to register?" asks Semel. "You're going to go someplace where you're not going to be monitored, you're not going to get treatment, and you're going to increase the likelihood of re-offending." "Most of the people I have worked with who I believe have been successful[ly] treated because they have gotten a chance to get a new beginning," offers Berlin, from the John Hopkin's clinic. "When things are going good, if they have a lot to lose and a support system of people who care, that stacks the odds of success. "Society obviously has a right to protect themselves," says Berlin, himself a father of four. "All decent people want that. We're really talking about what is the best way to do that. I'm very concerned we've reacted very quickly here in a way that may not enhance community safety and may move us from a way that is fair."Sidebar #1Back in the FoldWhy are sex offenders out of prison anyway? By Robin Gregory According to Mike Kelly, field representative for the Sexual/Habitual Offender Program, California Dept. of Justice, 350-450 sex offenders and/or predators in California are released on parole every month. Given the statistics of re-offense, long-term trauma to victims, and public outrage, why aren't we keeping sexual criminals locked up longer? "The reason so many offenders are being released is because they were sentenced in an era when laws were written to protect the criminal," says George Passantino, consultant to Assemblywoman Barbara Alby, R-Fair Oaks. Alby has authored a new bill (AB 1612), designed to keep sexual offenders from teaching in schools. Passantino feels that the notification and empowerment provided by Megan's law will protect the community from sex offenders who've been released on parole. "We're taking great strides in moving the pendulum to protect the victim." James Scariot, boardmember of the Children's Abuse Prevention Council wants harsher treatment of sexual offenders and predators alike. "I would hope that sooner or later we'll adopt federal rulings which say a person will serve 80 percent of their sentence before parole." "Some of these guys turn their lives around. We can't just lock them all up for the rest of their lives," says Kelly. "We can think about passing indeterminate sentencing laws, but for now there's not a lot we can do legally." "Our systems are overloaded and they're putting them out on parole too soon," says Rosalie Ferrante, executive director of Court Appointed Special Advocates. "We don't have laws to protect the most primal instinct to protect our children. We don't have money for prisons, we don't have money for parole officers and we don't have money for government services to protect children properly. We need a way to pull all people interested in children's rights together to make sure legislation is changed so children are protected."In 1995, California's Assembly Bill 888 (The Sexually Violent Predator Act) was enacted to keep in custody those sexually violent criminals who were believed to be at risk to the community after release from state prison. According to Kelly, the bill has allowed the legal retention of approximately 35 sexual predators who have served their prison sentences in Monterey County. Presently, 200 sexually violent predators who are due for release are being held at Atascadero State Hospital pending civil process. "We have to remember," says Mike Van Winkle, information officer at the California Dept. of Justice, "75 percent of convicted offenders don't go to state prison. He says most of them are convicted of crimes like voyeurism, exhibitionism and possession of pornography. They do one year or less in county jail or community service. Somewhere in the area of 50 percent of these people get the help they need and do not continue offending." According to Van Winkle, only about a third of sexual crimes are even reported. Given the secretive nature of such crimes and the degree of trauma to victims, the question of prevention rather than punishment comes into sharp focus. "There's only so much our laws can do," says Kelly. He feels that changing laws and locking up sexual criminals for longer periods might help, but it's not the only answer. "We need better treatment for these guys. Also, it's our personal responsibility to be aware of the problem of sexual abuse and to take measures within our families to protect and educate the children. We need to teach our children about good touch and bad touch and any number of things along that line. We must practice good security and educate ourselves on good crime prevention." Sidebar #2Teach Your ChildrenTips for parents on child safety.How do you raise a child who isn't paranoid, but who is street smart? That's the challenge of parents forced to think the unthinkable and prepare a child for the possibility of someone preying upon them. Public safety officials offer some basic common-sense tips:*Kids should learn not to allow anyone but their parents and caregivers to touch them on the parts of their bodies covered by a bathing suit, and then only for cleaning, dressing and medical purposes.*Kids should be taught not to talk to or accompany strangers (although most molestations take place at the hands of someone a child loves and trusts).*Parents and kids should develop a "code word" that an adult other than parents has to use when picking children up from school or other events.*Kids and parents should also discuss the difference between a "good" secret (a surprise for someone that's kept secret for a limited time only) and a "bad" secret (a secret that an adult wants kept from a parent, or a secret that will result in "bad things happening" if it's told).Those are some of the nuts-and-bolts rules of teaching self-protection, but Monterey Rape Crisis Community Relations Director Leda Tully offers some general tips for raising kids with a healthy degree of self-preservation. "The first thing you need to do is educate yourself about being assertive, about how you present yourself to the world," says Tully. "Kids do as they see you do." Tully also says kids need to be taught-beginning in the home-that they have some control over what adults do to their bodies, even in fun. "If a child doesn't like to have their hair ruffled, then they have a right to say 'I don't like that,'" says Tully. She points out that parents often give kids a mixed message about acquiescing to what adults think is good horseplay-a message that might be harmful to a child who is later targeted for exploitation. "When we teach them to be 'nice,' we're educating them that other people have a right to get into their space and violate it." Tully says parents also need to continually show their children by example that they are valuable individuals, and that anything that children feel uncomfortable about will be believed and discussed. "If the child doesn't feel that they have a sense of self, all that stuff about how and who to talk to won't matter."