Sexual Offender Laws Hardly Threaten Right to Privacy

Ms. Talia Milgrom-Elcott, in a recent editorial, attacked state laws requiring the registration of released sexual offenders and related community notification laws. With the exception of her criticism of the possible over-inclusiveness of some of these laws, her arguments lack substance.

Let's start with what Ms. Milgrom-Elcott considers to be the "fundamental question" underlying these laws, namely that the U.S. might be reverting to a "Hester Prynne morality where one sin brands you for life with the Scarlet Letter of sexual ignominy and security-risk."

Leaving aside the fact that forcible rape is something more than a minor sexual indiscretion, such a Scarlet Letter has long existed. It's called a criminal record. Further, this criminal record is in the public record already and the sexual offender registration laws merely expand upon a long-standing legal regime.

Unless Ms. Milgrom-Elcott wants to argue that criminal records should themselves be abolished as a threat to the right of privacy, her point is both legally moot and historically incorrect. Given the existence of criminal records in the public domain, sexual offender registration laws are hardly the historic break with the "sacred values of our society" that Ms. Milgrom-Elcott claims they are.

Further, Ms. Milgrom-Elcott criticizes the registration law's emphasis on the "supposed capacity for danger" rather than "actual danger." First of all, laws of punishment and incarceration have a probabilistic character. For example, while it is not certain that Charles Manson will kill again if released, his past actions give us strong reason to consider the possibility that he might do so, and as a result we keep him locked up for that reason, in addition to retribution and deterrence. Also, the recidivism rates of sexual offenders are very high, and unlike most other criminals, sexual offenders remain active until late in life.

Common sense and practical experience dictate that if it has been proven that an individual has brutalized women and children before, that person deserves a bit more long-term community scrutiny than he would have received otherwise and this community interest overcomes the rapist's right to privacy.

Also, Ms. Milgrom-Elcott's comparison of sexual offender registration laws to laws in the past which have abridged free speech is ludicrous. First of all, freedom of speech is a long standing fundamental right, and secrecy about one's criminal past has, as I pointed out, never been one. Also, while many of the old laws restricting speech under the guise of national emergency were merely thinly veiled methods of suppressing political dissent, sexual offender registration laws have no such hidden motive, unless one wishes to argue that keeping secret from one's neighbors that one has kidnapped and raped people in the past is right on a par with the right to criticize the government and these laws are an attempt to get at the latter by restricting the former.

Laws requiring the registration of sexual offenders are the logical extension of long-standing legal customs and rules and hardly threaten the right to privacy which Americans hold dear. These laws, if written properly and narrowly constructed, help to provide information which many people consider to be helpful in increasing their and their children's safety.

Despite Ms. Milgrom-Elcott's assertions to the contrary, the cause is not vague and the enemy is not ourselves. The target of these laws is the possible repeat rapist and the goal is prevention and minimization of violence against women and minors. --Mark R. Yzaguirre   Harvard Law School '97