Registries have been examined in numerous academic studies over the past several decades and virtually all of them have found that registries do not accomplish what they were intended to do. They do not reduce recidivism. 

They do not prevent sex offenses. They do not protect children. They do not make communities safer. 

These findings certainly run counter to the beliefs of some policy makers seemingly more interested in inflicting additional punishment on past crimes or enhancing their “tough on crime” personas. New directions must be taken—employing evidence-based reforms focused on intervention and treatment methods that have been shown to reduce sexual violence. 

Sex offense registries in this country go back to the mid-20th century, when they had the limited aim of providing law enforcement (and only law enforcement) with contact information on those who had committed specific types of offenses.  

Then, in 2003, the U.S. Supreme Court upheld Alaska’s relatively lean registry, using the now debunked premise that people convicted of a sex offense have an exceptionally high recidivism rate. Policy makers around the country took it as an invitation to pile on new regulations and requirements, vastly expanding registries that had once focused on a narrow spectrum of serious crimes to include an ever-growing list of offenses, even including such things as public urination and sex among underage teenagers. 

Those who seek to maintain, and even expand, sex offense registries make the claim that those convicted of a sex offense cannot be rehabilitated and need to be under constant surveillance. However, study after study has shown that therapeutic interventions largely lead to success. In fact, those convicted of sex offenses have essentially the lowest recidivism rate among all classes of offenders; a study done by the U.S. Department of Justice found a reconviction rate of 3.5% among individuals in 15 states released over a three-year period.  

So, if registries do not work as intended, what can be done? 

The American Law Institute (ALI) provided recommendations on where states might go when it adopted extensive model penal code revisions regarding sex offense registries in 2021.  ALI’s model codes are enormously influential in the courts and legislatures, and in legal scholarship and education. 

ALI’s proposed changes match the recommendations of academic literature, which shows that people convicted of sexual offenses have low reoffense rates and that registration hinders rehabilitation and reintegration into society. 

Specifically, it recommends restricting the information on registries to be available to law enforcement only, limiting those registered to only the most dangerous, and shortening the length of time individuals must remain on the registry. 

The first is important because publicly listing those convicted of a sex offense on the internet exposes them to a variety of negative consequences, ranging from public shaming, physical intimidation and violence, and difficulties in finding employment and a place to live.  

The requirement of lifetime registration that many states, including Arizona, impose carries burdens for many convicted of a sex offense, often preventing them from ever being able to fully reintegrate into their communities even many years after the offense.   

In her dissent in the Alaska Supreme Court case Justice Ruth Bader Ginsburg noted that many registries, including Arizona’s, make no provision at all for the possibility of rehabilitation. “However plain it may be that a former sex offender currently poses no threat of recidivism,” she wrote, “he will remain subject to long term monitoring and inescapable humiliation.” 

At a time when the American Law Institute, virtually all available research and a growing body of public and professional opinion reflects the reality that our current sexual offense policies do not work, it is important for Arizona to take a new direction. 

John Covert is a member of the Arizonans for Rational Sex Offense Laws Executive Committee. 

ELIZABETH NOLAN BROWN — The Centers for Disease Control and Prevention (CDC) inflated data about teen girls and sexual assault in a news release about a new CDC report on teenage mental health. In 2021, the percentage of teen girls who reported that they had ever been “forced to have sex” was up 27 percent since 2019, the health agency said, calling it “the first increase since the CDC began monitoring this measure.”

The percentage of teen girls reporting this in the CDC’s Youth Risk Behavior Survey reporting did rise, unfortunately—but not by quite the magnitude that the CDC news release said, reports Washington Post fact checker Glenn Kessler. The actual increase was not 27 percent, but 18.4 percent.

And even this number leaves some room for doubt, owing to differences in data collection between previous-year surveys and 2021.

“The CDC’s focus on the challenges facing teenage girls — especially regarding mental health — is timely and important. But the CDC’s use of inflated figures on sexual violence could undermine its larger message,” suggests Kessler.

The first problem with the CDC’s data stems from rounding. In 2019, 11.4 percent of teen girls in the Youth Risk Behavior Survey said they had been forced to have sex; in the 2021 survey, it was 13.5 percent. That’s a rise of 2.1 percentage points or—put another way—an 18.4 percent increase. In presenting the data, however, the CDC rounded the 2019 number down to 11 percent and the 2021 number up to 14 percent. Using these rounded numbers, you get a 27 percent increase.

Any increase here is concerning, of course. And whether it’s 11 or 14 percent, that’s still a disturbingly large percentage of teen girls who say they’ve been forced to have sex.

But some experts suggest that CDC data inflate a rise in recent years, since a lot of schools surveyed refused to ask students questions about sexual violence.

The increase in the number of schools choosing not to ask that question is huge. In 2017, 4 percent of schools surveyed didn’t ask their students about any sexual violence and 2 percent didn’t ask about rape, according to mathematician David Stein. In 2019, a quarter of schools surveyed failed to ask questions about any sexual violence and 18 percent didn’t ask about rape. In 2021, 23 percent didn’t ask about sexual violence and, again, 18 percent didn’t ask about rape.

“That could have biased the sample by possibly removing jurisdictions with lower rates of reporting rape and sexual violence,” Kessler points out:

Stein’s analysis of the available 2019 data suggests girls who were not given the questions were considerably younger than those who had received the questions and thus less likely to have had sex and to be sexually active — two factors, he said, that are associated with a higher risk of being a victim of sexual violence.

Elizabeth L. Jeglic, a clinical psychologist who studies sexual violence prevention at John Jay College in New York, said she could not comment specifically on the CDC methodology, but she said sampling and response rate can affect findings. “If the question is asked about lifetime occurrence and younger girls are not being sampled (or less likely to be sampled) you will likely see a higher prevalence rate as older girls will have more years to experience sexual violence than younger girls,” she said in an email.

Kessler notes that “other survey questions with more robust participation by schools — such as violence in dating and violence in bullying — indicated declines, not increases.”

For instance, the National Crime Victimization Survey suggests teen rates of experiencing sexual assault and rape have declined over the past three decades. And the CDC’s Adolescent Behaviors and Experiences Survey (ABES) puts the rape victimization rate at 10.4 percent and the sexual violence victimization rate at 15.3 percent.

In a 25-page opinion, Chief U.S. District Court Judge John McConnell, Jr. held that since “neither an ordinary person nor law enforcement could understand the statutory language that attempts to define the boundaries of residences and schools,” the residency prohibition is unconstitutionally void for vagueness. ACLU of RI cooperating attorneys challenged the statute when it was first enacted in 2015, and it has been subject to a preliminary injunction barring its enforcement since then.

The law provides for measuring the 1,000 foot distance “from the nearest boundary line of the real property supporting the residence of the person to the nearest boundary line of the real property that supports or upon which there exists a school.” ACLU of RI cooperating attorneys Lynette Labinger and John MacDonald noted the complete lack of clarity as to what property “supporting” a school was applicable in measuring the distance — what about spaces like playing fields, playgrounds, or parking lots? In fact, the court noted, the state has given differing interpretations of what that language means over the years, and most recently argued that it applies to any real property — even if not contiguous to the school — if it is “typically used by students for school purposes,” and that those determinations needed to be made on a case-by-case basis. In pointing out the problem with this approach, the court noted:

“After all, if the State’s process involved law enforcement, school officials, and attorneys collaborating to make precise individualized determinations on these boundaries, how could an ordinary person ever be expected to faithfully follow this process, let alone come to the same conclusion about where these boundaries lie? Not to mention that these difficulties facilitate arbitrary and inconsistent enforcement.”

Both nationally and locally, correctional administrators‚ experts involved in the treatment of sex offenders, victims’ rights groups, and advocates for the homeless have opposed sex offender residency laws as being ineffective, counter-productive, and potentially more, rather than less, harmful to public safety. The law applies to all Level 3 sex offenders, even if their crime was committed against an adult, and even though the overwhelming majority of sex offenses are committed against people the offender knows, not strangers.

At the time the suit was filed, various housing rights advocates noted that by pushing individuals out of their homes and limiting where they can live, the law would encourage homelessness, making it more difficult for law enforcement to monitor them and for offenders to reintegrate themselves into the community. By disrupting vital rehabilitative services, the groups argued, the law increased, rather than decreased, risks to public safety. The suit was filed just days before dozens of people had been ordered to move from their then-current residences.

Although the ACLU lawsuit raised numerous legal challenges to the law — including that it violates due process, retroactively punishes those who have already completed their sentences, and interferes with “liberty and privacy interests while bearing no rational relationship to a legitimate purpose” — the parties agreed to have the court first rule on the “vagueness” challenge to see if that might dispose of the case.

ACLU of RI cooperating attorney Labinger said today: “As we demonstrated in our court filings, even the State, in its efforts to justify the law, was unable to articulate a single coherent or objective standard which people trying to stay out of trouble and law enforcement could follow.  The Court’s decision is important to our clients and the class they represent, because it means that they will not be subject to onerous and unknowable requirements as to where they can and cannot live under fear of felony prosecution.  At the same time, registered sex offenders still face and are subject to a host of requirements and review to stay on the right side of the law.”

https://ecf.rid.uscourts.gov/doc1/16112079134

According to Sotomayor, Angel Ortiz served out most of his prison sentence and was eligible for good time credits — entitling him to conditional release under state law. Because he was categorized as a “level three sex offender,” he had to assure authorities he would not reside within 1,000 feet of any school. That requirement was based on an interpretation of a law that says an “offender shall refrain from knowingly entering into or upon any school grounds.” Since Ortiz and his family (with whom he would have lived post-prison) were from New York City, the most densely populated large city in the country, this requirement proved to be an impossible task, the case revealed.

The broader court apparently concluded that Ortiz’s petition didn’t raise sufficient constitutional questions to warrant a review. Sotomayor wrote separately. In her statement, Sotomayor respected the full court’s decision not to grant certiorari in the case, but she did use the occasion to urge the State of New York to change its policy on post-release restrictions for sex offenders.

“I write to emphasize that New York’s residential prohibition, as applied to New York City, raises serious constitutional concerns,” Sotomayor’s six-page statement argues.

“Ortiz . . . proposed dozens of other release addresses, including various homeless shelters, but [New York’s Department of Corrections and Community Supervision] rejected each one,” Sotomayor’s statement explains. “As a result, Ortiz spent the entirety of his 17 months of conditional release in prison.”

Even though Ortiz was supposed to have been released from prison after effectively being denied his good time credits because of his housing situation, the state then put him into a so-called “Residential Treatment Facility” (which was actually just another state prison) to begin serving his five-year post-release supervision sentence, Ortiz claimed.

“Ortiz spent eight months in two of these facilities, where he lived behind barbed wire, in a general prison population, in conditions nearly identical to those in which he served his sentence,” the statement notes. “All told, because of New York’s residency prohibition, Ortiz was imprisoned for over two years longer than he otherwise would have been.”

In turn, Ortiz filed a petition for a writ of habeas corpus but was summarily frustrated by each of several New York State courts on the grounds that he had not found “compliant community housing.”

“In effect, New York’s policy requires indefinite incarceration for some indigent people judged to be sex offenders,” Sotomayor argues. “The within-1,000-feet-of-a-school ban makes residency for Ortiz and others practically impossible in New York City, where the city’s density guarantees close proximity of schools. Rather than tailor its policy to the geography of New York City or provide shelter options for this group, New York has chosen to imprison people who cannot afford compliant housing past both their conditional release date and the expiration of their maximum sentences.”

The upshot of the state’s interpretation of the law, Sotomayor concluded, is the deprivation of protected liberty interests by way of a ban on housing opportunities for many offenders who have otherwise paid their debts to society.

“Ortiz may well have held a liberty interest at the point that he became entitled to conditional release,” the statement argued — citing to state law and two lower court dissents. “At the very least, however, Ortiz indisputably held a liberty interest in his release at the expiration of his full sentence.”

And that, the justice says, “demands heightened scrutiny” of the ban because that practical impact of the state law may fail various forms of constitutional review used to determine such issues by the high court.

“New York’s policy of indefinite detention may not withstand even rational-basis review,” Sotomayor argued — referring to the lowest level of constitutional scrutiny. “No one doubts that New York’s goal of preventing sexual violence toward children is legitimate and compelling, but New York nonetheless must advance that objective through rational means. Courts, law enforcement agencies, and scholars all have acknowledged that residency restrictions do not reduce recidivism and may actually increase the risk of reoffending.”

The justice then goes on, for several pages, to catalogue numerous citations, studies and statements from courts, cops and colleges that suggest restrictive residency requirements actually make sex offender much more likely to re-commit sex crimes.

“[S]cholars have explained that by banishing returning individuals to the margins of society, residency restrictions may lead to homelessness, unemployment, isolation, and other conditions associated with an increased risk of recidivism,” Sotomayor’s survey of the literature concluded.

But, the justice acknowledged, rights for sex offenders isn’t a particularly popular cause — or an issue that public officials are even really willing to countenance a change in perspective towards.

“Despite the empirical evidence, legislatures and agencies are often not receptive to the plight of people convicted of sex offenses and their struggles in returning to their communities,” she noted. “Nevertheless, the Constitution protects all people, and it prohibits the deprivation of liberty based solely on speculation and fear.”

“When the political branches fall short in protecting these guarantees, the courts must step in,” Sotomayor continued — but she also noted there isn’t a circuit split on the issue that requires the full court’s attention.

Then, in closing, Sotomayor implored politicians in New York to make a change without waiting on the nine justices:  “New York should not wait for this Court to resolve the question whether a State can jail someone beyond their parole eligibility date, or even beyond their mandatory release date, solely because they cannot comply with a restrictive residency requirement. I hope that New York will choose to reevaluate its policy in a manner that gives due regard to the constitutional liberty interests of people like Ortiz.”

JACOB SULLUM —  A rule that Attorney General Merrick Garland issued in 2021 notionally requires people to do things that are plainly impossible. If they have been convicted of a sex offense, they must register with their state, even when the state neither requires nor allows them to do so. They also must supply the state with all the information required by federal law, even when the state does not collect that information.

Under 18 USC 2250, someone who fails to meet those requirements and who travels outside his state can be charged with a federal crime punishable by up to 10 years in prison. At trial, the defendant has the burden of proving that he was unable to register “as required” by the federal Sex Offender Registration and Notification Act (SORNA). That Kafkaesque situation, a federal judge in California ruled yesterday, violates the constitutional right to due process.

The Justice Department, U.S. District Judge Jesus G. Bernal writes, “has done exactly what is forbidden by the Constitution: ‘to declare an individual guilty or presumptively guilty of a crime.’ In the Rule, the Government disavows any obligation or burden ‘to establish that a registration jurisdiction’s procedures would have allowed a sex offender to register or keep the registration current in conformity with SORNA’ before prosecuting the individual for failure to do what it acknowledges is impossible.” That policy, Bernal says, “subverts the procedural safeguards deeply rooted in our history and constitutional framework.”

The case, John Doe v. Department of Justice, illustrates the perverse consequences of the federal government’s attempt to identify and track sex offenders through detailed registration requirements that often conflict with state law. The plaintiffs, who are represented by the Pacific Legal Foundation (PLF), include California residents whom the state no longer requires to register as sex offenders because it has certified their rehabilitation and expunged their records. The Justice Department said they had to register anyway. It also said they were obligated to supply and update information that California would not collect even if it allowed them to register.

“California requires registrants to provide their current address and a photocopy of an identification or driver’s license to their local sheriff,” PLF attorney Caleb Kruckenberg explained when the lawsuit was filed last year. “The new rule requires much more. A registrant must include his social security number, his ‘remote communication identifiers’ (e.g., internet usernames), his work or school information, and information concerning any international travel, passport and vehicle registration, or professional licenses.”

The lead plaintiff, identified as John Doe in court documents, enlisted in the Marines at 17. Six years later, according to the original complaint, he had “a consensual but inappropriate encounter” with a 16-year-old girl that “did not involve sexual intercourse.” Because the teenager was two years younger than California’s age of consent, that encounter resulted in criminal charges. Doe pleaded no contest to a misdemeanor count of sexual battery, which required him to register as a sex offender. He was sentenced to three years of probation.

“Since then,” the complaint says, “Mr. Doe has dedicated himself to making amends and becoming a model citizen. He expressed sincere remorse for his crime and voluntarily underwent psychological treatment. And equipped with a healthier perspective, he pursued higher education and has had a rewarding and productive career, became a loving husband and father, and became an active participant in his church. He has done everything one is supposed to do following a criminal conviction.”

State courts officially recognized Doe’s rehabilitation, clearing his 1996 conviction in 2002 and issuing a certificate recommending an unconditional pardon in 2012. He therefore “is no longer a convicted criminal and has not registered as a sex offender for more than a decade.”

In the meantime, however, Congress approved SORNA. That 2006 law made a sex offender’s failure to follow state registration requirements, already a crime under state law, a federal felony. Initially, that was not a problem for Doe, since by 2012 California had removed him from the state registry. But in December 2021, the Justice Department published SORNA regulations that required Doe, despite his expungement, to re-register with California, even though the state will not let him do that. The new rule said that “only pardons on the grounds of innocence terminate registration obligations under SORNA.”

In addition to Doe, the plaintiffs who challenged that perplexing edict include two other California men who received certificates of rehabilitation and a current California registrant who worried that SORNA would require him to maintain his registration even when that is no longer feasible. The Alliance for Constitutional Sex Offense Laws (ACSOL) joined the lawsuit on behalf of members who face the same dilemma as Doe because their records have been expunged or because they have successfully sought relief from California’s registration requirements. Other ACSOL members are still required to register under California law but are not able to supply all the information required by the Justice Department because the state does not collect it.

“For individuals like Plaintiffs, at least some of whom allege a remarkable record of rehabilitation and positive contributions to society following convictions in the distant past, the prospect of being returned to prison for up to 10 years due to circumstances beyond their control is a particularly disturbing one,” Bernal notes. That threat, he says, is inconsistent with due process.

“May the Government attempt to imprison California registrants like Plaintiffs for up to a decade for failing to do the impossible, unless they, not the Government, prove impossibility?” Bernal writes. “This Court holds that the answer is no.”

The government “presumes that Plaintiffs are guilty of a federal crime unless they prove their lack of culpability at trial,” Bernal says. “While the legislative branch may define the elements of an offense, and the Constitution requires the prosecution to prove beyond a reasonable doubt those elements, ‘[i]t is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.'”

Bernal notes that “whether a defendant registered ‘as required,’ and accordingly whether it was possible for him to do so, is an essential element of the offense” created by SORNA. The government “violates due process when it relieves itself of the burden of proving that essential element, i.e. that it was possible to register under state law,” he writes. “Because the Rule, in conjunction with 18 U.S.C. § 2250, fails to provide the minimum procedural safeguards required by the Constitution, it violates due process.”

Bernal therefore issued a preliminary injunction that bars the Justice Department from prosecuting a California resident under 18 USC 2250 unless it has first verified that “the individual was required to register under California law” or that the state “allows the individual to furnish” information required by SORNA. “With this order,” the PLF notes, “the DOJ’s SORNA rule is now unenforceable in California and could be vacated nationwide in the judge’s final decision.”

The plaintiffs also argued that the Justice Department’s demand for “remote communication identifiers” has a chilling effect on their freedom of speech, which includes the right to anonymously express opinions online. Bernal concluded that there was not enough evidence at this stage of the case to conclude that the plaintiffs were likely to prevail on that claim. But he says the plaintiffs “raise a substantial question as to whether the Rule imposes an impermissible burden under the First Amendment.”

Bernal says he is “concerned that the Rule does not provide any clear explanation of why and how the identifier disclosure provision advances a governmental interest.” Judging from SORNA’s goals, that requirement is aimed at preventing or detecting inappropriate contact with minors. But Bernal notes that the requirement on its face would apply even in contexts, such as posting or commenting on news stories, where it is “unlikely” that requiring the disclosure of usernames “would help the government protect children.”

Another claim in the lawsuit has potentially broad implications. The plaintiffs argued that SORNA violates the separation of powers by improperly delegating legislative authority to the attorney general. The law effectively allows the Justice Department to define criminal offenses by issuing regulations that impose new registration requirements. The plaintiffs say that power runs afoul of the “nondelegation” doctrine.

Bernal thinks that claim is apt to fail under current precedents, which allow the executive branch to “fill in the details” of federal statutes as long as Congress provides an “intelligible principle” to guide that process. But he is sympathetic to complaints about the resulting proliferation of federal crimes tied to regulatory violations.

“The modern rule,” Bernal notes, approves “delegations whereby the Executive or an independent agency defines by regulation what conduct will be criminal, so long as Congress makes the violation of regulations a criminal offense and fixes the punishment, and the regulations ‘confin[e] themselves within the field covered by the statute.'” Explaining the consequences of that leeway, Bernal quotes Mike Chase‘s book How to Become a Federal Criminal: “Congress has passed thousands of federal criminal statutes and has allowed federal agencies…to make thousands upon thousands more rules that carry criminal penalties.” Those rules “cover everything from how runny ketchup can be to…just how friendly you can get with a pirate.”

Bernal notes that “no one, not even the Government, knows how many federal crimes there are,” and “the federal government has stopped even trying” to count them. “This Court is sympathetic to arguments challenging such a state of affairs, which has eroded some of ‘the most vital procedural protections of individual liberty found in our Constitution,'” he writes. “But the Court is also bound to follow controlling precedent, and until the Supreme Court provides a new directive, Plaintiffs are unlikely to succeed on the merits of their nondelegation claim.”

There are signs that the current Court might be prepared to provide “a new directive” by reviving the long-moribund nondelegation doctrine. In the 2019 case Gundy v. United States, the justices considered 34 USC 20913, a SORNA provision that gives the attorney general broad authority to decide whether and which sex offenders convicted before the law was enacted are subject to its registration requirements. The petitioner, Herman Gundy, challenged the Justice Department’s retroactive application of SORNA, arguing that the law violated the nondelegation doctrine.

A four-justice plurality avoided that issue by reading 34 USC 20913 as requiring the attorney general to impose registration requirements on previously convicted sex offenders “as soon as feasible.” In a separate opinion, Justice Samuel Alito agreed with the result, but not because he embraced the plurality’s narrow interpretation of Section 20913. Instead, he said upholding the law was consistent with the Court’s longstanding reluctance to invoke the nondelegation doctrine. “Because I cannot say that the statute lacks a discernable standard that is adequate under the approach this Court has taken for many years,” he wrote, “I vote to affirm.”

But Alito also said that “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” That caveat is potentially important given the current makeup of the Court. Three justices dissented in Gundy, saying it was clear that SORNA violated the separation of powers.

“The Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty,” Justice Neil Gorsuch wrote in an opinion joined by Chief Justice John Roberts and Justice Clarence Thomas. “Yet the statute before us scrambles that design. It purports to endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens. Yes, those affected are some of the least popular among us. But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?”

Justice Brett Kavanaugh, who was confirmed in October 2018, did not participate in Gundy, and he has since been joined by Justice Amy Coney Barrett, who replaced Justice Ruth Bader Ginsburg in 2020. If Kavanaugh or Barrett is open to the reconsideration that Alito suggested in 2019, there may well now be a majority in favor of constraining the executive branch’s authority to create crimes by administrative decree.

If you are a registered sex offender and are hoping to avoid being accused of violating the terms of your registration, it is important that you understand how these international travel laws are going to impact you. Contacting an experienced criminal defense attorney is the first step well before making travel plans.

Leaving the U.S. for vacation?

Registered sex offenders within the United States are legally allowed to leave the U.S. and travel internationally. There is no U.S. law that prohibits sex offenders from traveling abroad. That does not mean every country will allow sex offenders to enter the country. Registrant Travel Action Group (RTAG) is a good resource to determine where people on the registry may travel.

Every country has its own laws that will determine whether the sex offender’s criminal record meets the criteria for entry into the country. A sex offender who was convicted at the felony level may be refused entry to a significant number of countries across the world.

Where is Travel Permitted?

The United States does not restrict registered sex offenders from entering any country around the globe. There are very few countries that will review a United States citizen’s criminal background before allowing them entry to the country. In fact, in many cases, countries will only require that the individual have a valid passport to be approved for entry.

Currently, registered sex offenders are prohibited from traveling to or changing flights in any of the following countries:

• China (monetary fine)
• Mexico
• The United Kingdom
• Australia
• Thailand (monetary fine)
• Canada
• Brazil
• Russia (mandatory jail time and monetary fine)
• Japan

Countries that allow sex offenders entry may require them to register with local police upon arrival. Other countries could allow entry if the criminal offense in question occurred a long time ago or was a first offense. Many countries do not have clear rules in place that deny or allow entry to registered sex offenders.

Since immigration laws across the globe can change at any point in time, if you are a registered sex offender who is hoping to travel internationally, you should be sure to reach out to a sex crime lawyer or your destination country’s consulate for additional information.

Required to Notify Law Enforcement of Their Plans to Leave the Country?

As of 2016, the International Megan’s Law (IML) amended the Sex Offender Registration and Notification Act (SORNA), requiring registered sex offenders to report their intent to leave the country with their local sex offender registry.

Sex offenders are required to comply with local sex offender registry rules and regulations. Registered sex offenders may be required to report their travel plans with a minimum of 21 days’ notice. Some of the different types of information you should expect to provide to your local sex offender registry include:

• The names of the countries you plan to enter
• What are you expect to do within the country
• When and where you plan to leave the United States
• When and where you plan to arrive in the United States when you return
• A way to contact you while you are abroad
• Your reasons for traveling internationally
• Your airline name and flight numbers

There are criminal consequences associated with failure to notify authorities of your intent to travel internationally. If convicted, a registrant could spend up to 10 years in prison.

When human trafficking, child sex trafficking, and other sex crimes are prevalent in tourist areas across the world, It should come as no surprise that there would be strict travel restrictions in place for registered sex offenders.

While on Probation Travel Internationally?

Sex offenders who are currently on probation may be allowed to travel internationally if granted approval by their probation officer. There may be additional restrictions and requirements in place before a registered sex offender on probation may be granted approval to travel abroad.

Generally, registered sex offenders who are on probation will be denied approval for international travel unless they have a substantial reason for needing to leave the country. A good example could be a registered sex offender who needed to leave the country to care for their terminally ill parent.

Returning Back in the U.S.?

One of the biggest risks registered sex offenders takes after they have left the US is being denied entry when they attempt to come back. Although they might have reported your travel plans to the local authorities, it is not uncommon for registered sex offenders to face further scrutiny and screening when they attempt to enter the US after traveling abroad.

You may not necessarily be denied entry. You should expect delays in your attempt to cross the border. You could also face further scrutiny from airline officials and law enforcement, which could make your travel experience shameful, embarrassing, and anxiety-ridden. For those thinking that travel insurance would be a good backup plan. There are reports that claims were denied because of criminal investigation clauses. Read the fine print before committing to travel insurance.

If you have concerns that you may have been treated unfairly in your attempt to re-enter the US after international travel, an experienced attorney may help you file a complaint with the Traveler Redress Inquiry Program at the Department of Homeland Security (DHS).

If you are having difficulty re-entering the United States as a registered sex offender after having been granted approval to do so by your local authorities, you should reach out to a criminal defense attorney as soon as possible for legal guidance and support.

Be Proactive. Not Reactive.

People on the registry have the right to travel internationally. Do not ask the sheriffs questions about international travel because they simply do not have the correct answers. But making international travel plans and its navigation is perhaps worth taking a moment to ask an attorney about options well before purchasing air travel. Otherwise, a registrant could be facing severe criminal charges upon return to the United States. Unfortunately, it is the United States that has created this “if this then that” travel scheme for the registry population. It is better to be prepared.

On Thursday, the highest court in Virginia ended the Commonwealth’s 13-year campaign to indefinitely detain a prominent advocate on criminal justice matters, Galen Baughman. In a victory for justice, the Supreme Court ruled that the petition filed against Baughman in 2017 was illegal.  Baughman v. Commonwealth

A Short History of Baughman’s Fight

Baughman has been targeted by the Virginia attorney general’s office under the state’s civil confinement scheme since 2009 when prosecutors filed a petition to send him to Virginia’s shadow prison in Burkeville shortly before his release from a seven-year prison sentence for consensual adolescent sexual conduct. That initial petition went to trial in 2012 and a jury voted unanimously in his favor. Baughman describes that trial in a 2015 TED Talk. In 2017, less than 24 hours before his release from a 20-month sentence for an alleged first-time technical violation, the attorney general’s office petitioned a second time to have Baughman indefinitely detained past his release date. The Supreme Court’s ruling last week dismissed that 2017 petition because it was based on the testimony of an expert who was prohibited from testifying under “the plain language of the statute.”

Galen Baughman, Soros Justice Fellow

Outrage Against Injustice

Virginia legislator Patrick Hope (D–Arlington) described the situation in an op-ed published immediately before Baughman’s second trial in 2019: “The [Virginia Department of Behavioral Health and Developmental Services (DBHDS)]-hired psychologist found Baughman did not meet the criteria and recommended his release. The attorney general’s office ignored that finding, went outside the law and hired a second expert. This expert did not interview Baughman, but nonetheless claims that Baughman meets the statutory criteria. At trial, Baughman’s defense attorneys may not present the results of the 2012 civil commitment trial or the results of the DBHDS psychological assessment, nor can they present qualified psychological expert testimony. His trial… serves as a prime example of how the SVP laws are unjust and unfair.”

The Baughman case was closely watched by lawyers, activists, and civil and human rights organizations. Amicus briefs were filed by the National Association of Criminal Defense Lawyers (NACDL) joined by Del. Patrick Hope (D–Arlington), law professors and scholars, as well as a coalition of LGBTQ+/HIV rights advocates and organizations. Baughman was represented by a pro bono team from KaiserDillon PLLC, a notable boutique firm in Washington D.C. (Jonathan Jeffress, Emily Voshell, and William Zapf), supported by the Washington Lawyers’ Committee for Civil Rights & Urban Affairs.

Orwellian civil commitment assessment process

Catherine Hanssens, founder and then-executive director of Center for HIV Law & Policy (CHLP), was especially instrumental in bringing this issue to the forefront by organizing an LGBTQ+ sign-on letter to attorney general Mark Herring (D-Virginia) very early in this case. KaiserDillon also sent successive letters to AG Herring (in 2018 and 2020) asking him to stand down from this obviously illegal action — on the same grounds that the Supreme Court ultimately used to dismiss the petition. CHLP’s amicus brief “describes the deep homophobic bias embedded in an already-Orwellian civil commitment assessment process, and in the drive to confine him as a dangerous predator in the absence of credible evidence.”

Ruling Dramatically Limits State Scheme

The Court also addressed claims by the attorney general’s office that a judge could find probable cause that someone suffers from a “mental abnormality or personality disorder” based on conviction history alone. “As the trial court had no evidence regarding Baughman’s mental state, it could not have found that there was probable cause to believe that he was a sexually violent predator,” the Supreme Court said. “Accordingly, the trial court should have dismissed the Commonwealth’s petition.”

Because the second petition was unlawful from its inception, the Court decided “the other matters that Baughman raised in his appeal (i.e., the trial court’s decision to exclude the testimony of his expert witnesses, its denial of his motion for summary judgment and its failure to dismiss the petition based on res judicata) are… rendered moot.” Regrettably, the justices declined to address these other important issues that might have made a significant difference in the lives of other individuals targeted by Virginia’s pre-crime preventative detention program — those questions remain unsettled by the court.

Prosecution Overreach & Judicial Activism

The Baughman case is a stunning win that beats back a disturbing attempt by the Virginia attorney general and an activist judge to dramatically expand the scope of involuntary civil confinement. If the state had gotten its way, prosecutors would be able to shop for experts until they find someone willing to give whatever opinion they wanted and judges would be encouraged to proceed with a putatively “mental health” commitment case absent any psychological evidence.

A sustained and systemic constitutional violation to get outraged about

Virginia is one of 20 states (and the federal government) with laws allowing for the indefinite ‘civil’ confinement of persons after the completion of a prison sentence for a sex-related crime. At least 7,000 people in the U.S. are presently held in prison-like facilities under the guise of involuntary psychiatric confinement based on a past sex-related conviction. While many facilities have begun to release people to an Orwellian form of “conditional release” as states begin hitting the practical ceiling that comes from a system designed to lock up more people every year without ever letting anyone out; for many, “civil commitment” for the purposes of “treatment” remains a life sentence.

Systems of pre-crime preventative detention have been under fire since their inception in 1990. The American Psychiatric Association formally opposes so-called “sexually violent predator” laws and has described these legislative schemes as a “misuse of psychiatry” designed to “preventively detain a class of people for whom confinement rather than treatment was the real goal.” In 2015, legal scholar David Post quipped for the Washington Post, “If you’re looking for a sustained and systematic constitutional violation to get outraged about, may I suggest this one?”

Impact of Baughman Supreme Court Win

This decision from the Virginia Supreme Court makes plain that the attorney general’s office flagrantly violated the “plain language of the statute.” Even with top-notch lawyers, it took Baughman 5 years to reverse this unlawful action — resulting in 40 months of unnecessary incarceration past his release date in a punitive carceral setting at the Arlington County Detention Facility (ACDF), and another year and a half of draconian conditions including being restricted from leaving Arlington County and house arrest for up to 18 hours per day.

Baughman is a leading advocate bringing to light the flawed rationale and human rights implications of efforts to lock up people prospectively for what they might do in the future. Baughman’s case should be a warning to any defenders of due process and freedom that so-called “sexually violent predator” laws lend themselves to wild misuse by unscrupulous government officials.   The fact that Virginia was able to very nearly get away with committing someone who does not suffer from any volitional impairment-causing psychological conditions — but had no trouble finding and using an expert willing to cavalierly misrepresent the psychological literature for pay — should be terrifying to us all.

The Next Battle for Defenders of Human Rights

In 2021, Virginia became the first state in the U.S. to consider abolishing its system of post-sentence ‘civil’ confinement. Baughman v. Commonwealth clearly illustrates the need to abandon laws and policies designed to incarcerate people for imaginary future crimes based on deeply dubious predictions by “experts.”

“The Commonwealth of Virginia’s case against Galen was morally and legally indefensible,” said Jonathan Jeffress, partner at KaiserDillon representing Galen Baughman. “It appealed only to the worst in people and their prejudices. I know I speak for everyone at KaiserDillon in saying that, although we are proud to have brought Galen’s case to a successful end, there is still much work to do, including reforming — or better yet, abolishing — Virginia’s broken, corrupt, and unconstitutional system of civil confinement.”

“The Commonwealth of Virginia’s case against Galen was morally and legally indefensible,” said Jonathan Jeffress of KaiserDillon. “It appealed only to the worst in people and their prejudices. I know I speak for everyone at KaiserDillon in saying that, although we are proud to have brought Galen’s case to a successful end, there is still much work to do, including reforming — or better yet, abolishing — Virginia’s broken, corrupt, and unconstitutional system of civil confinement.”

After the warning signs were placed, Sheriff Long posted a message on his official Facebook page, along with a picture of the sign. In his post, he explained that the signs had only been placed in front of the homes of registered sex offenders. His message also erroneously represented that Georgia law forbids registered sex offenders from participating in Halloween. In its decision, the Court concluded, “It is now undisputed, however, that Georgia law does not forbid registered sex offenders from participating in Halloween.” See Opinion at 6.

NARSOL was outraged by Sheriff Long’s actions, and we began searching for legal counsel to challenge what we believed to be an unlawful order. We secured the services of Mark Yurachek, an Atlanta based attorney, who had won a challenge to Georgia’s Global Positioning Systems (GPS) monitoring regime. With Mr. Yurachek’s assistance and funding provided by NARSOL, letters were sent to all registrants in Butts County. Mr. Yurachek’s office identified three good plaintiffs who then sued, seeking to enjoin the sheriff from placing the signs again in 2019.

Sheriff Long explained that he believed the signs were “imperative” to warn the public about the residences of registered sex offenders. Prior to 2018, the sheriff’s office had provided registrants with a flier at Halloween and asked them to place it on their doors. He believed that placing a yard sign out by the road would be more effective because it would prevent children from walking to the door. Long has been sheriff in Butts County since 2013, and he admitted that during his tenure, he did not know of any incidents in Butts County involving registrants on Halloween. In fact, during his six-year tenure as sheriff, there were no issues with any registrants in Butts County having unauthorized contact or reoffending with minors at any time.

The Eleventh Circuit concluded that the district court erred in two ways. First, it determined that a compelled government speech claim requires a finding that a reasonable third party would view the speech as endorsed by the plaintiff. Second, the district court erred by determining that the plaintiffs’ ability to place their own yard signs disagreeing with the warning signs could cure the original violation. The Court stated, “This ignores that the harm here is the forced display of a government message on private property in violation of the right to refrain from speaking at all.” See Opinion at 12-13.

NARSOL is extremely gratified by this decision and believes it validates our mission in challenging law enforcement when they choose to invent requirements that are not part of a statutory scheme. This case took nearly four years to work its way through the trial court and then through the appeals process. We wish to thank the Alliance for Constitutional Sexual Offense Laws (ACSOL) for their help. ACSOL provided an amicus brief which may have been significant in the Court’s final analysis. Sheriff Long vowed at the onset of this case that he would take this all the way to the United States Supreme Court. Butts County officials are now at that point because he has lost yet again. We anticipate that there will be additional challenges to law enforcement agencies who choose to invent and impose their own requirements.

NARSOL wishes to remind Sheriff Long and other law enforcement officials in Georgia that you took an oath to enforce the law. Your office as an elected sheriff does not permit you to make law. If you wish to formulate law, you should consider running for the Georgia General Assembly.

Bonnie Burkhardt has over 35 years of experience legally intercepting and analyzing electronic communication signals for the Department of Defense. In her book, she explains how Mr. Pick was arrested in a sting operation illegally conducted by county police forces in Virginia and later charged and convicted for soliciting a minor electronically, a felony.

Mr. Pick’s electronic communications were intercepted without a warrant by the police, those very electronic communications in which a county police detective impersonated an imaginary underage teenager. Later, the officer hacked those private communications between Mr. Pick and said teenager. Mr. Pick was convicted of illegally soliciting a minor, a sex offense, and imprisoned. Mr. Pick was also required to register as a sex offender.

Anyone who understands the latitude with which sex offender is applied to a person knows that the label distorts, is mandated for years if not one’ s entire life, and that it negatively impacts one’s ability to earn a living, support a family, to contribute positively to community life, and to reside in a community without harassment. In sum, labels like sex offender ostracize, because they are associated with the most heinous of sexual crimes, even if that person did not touch anyone, even if the said victim did not actually exist.

Pick versus Virginia, however, does not focus on the ethics of sex offender registries or sting operations. Instead it provides evidence of the unlawful practices employed by police, leading to a multitude of misdirected convictions. As an expert in electronic communications and the laws surrounding their security, Burkhardt details those laws’ finer points.  She explains how they are misinterpreted by judges, misunderstood by most attorneys, and abused by federal, state and local officials and agencies.

Burkhardt describes how thousands of Virginia residents were unjustly prosecuted in sting operations since their major funder, the ICAC (Internet Crimes Against Children), was created in 1998. Based on her research and extensive data, she estimates that 8,100 persons have been prosecuted for manufactured crimes in Virginia alone, while their Fourth Amendment rights have been violated. Across the nation, she reports that 150,000 people have been prosecuted in similar stings.

Fortunately, in all these ICAC-funded stings, there was no real victim, although the stings have resulted in thousands of felony convictions. Adult detectives created these imaginary underage victims, after all.  One might question why any state or county agency would employ a unit of officers solely to troll for pedophiles on the internet. The short answer is not surprising: follow the money. The grant- funded ICAC stings enrich law enforcement budgets. Such stings also persist because they make law enforcement look good. The public supports them because they assume that stings help to keep children and communities safe. That is a myth. Since its inception in 1998, not one ICAC-funded sting nationwide, including all those in Virginia, ever resulted in the rescue of a real child.

Burkhardt’s book and her efforts to help those unjustly prosecuted are only first steps in challenging illegal and ineffectual stings. In the meantime, every real, living, breathing human is affected by violations of our Fourth Amendment rights. Real children do not benefit from expensive sting operations that violate those rights, including those practiced in Virginia and nationwide. Real children are not made safer. Instead, valuable citizens who could play a part in making our communities better are prevented from living productively, individual lives are ruined, families are damaged, and millions of dollars are wasted.

Putting our Fourth Amendment rights on the line is a slippery slope. No one questions the importance of keeping our communities safe and protecting our children. How we get closer to that goal is the real question. Accessing electronic records recklessly and without just cause violates everyone’s rights.

As life goes on, I hope that you and your family remain safe, that your children grow healthy and strong and go on to lead productive lives, all while your Fourth Amendment rights, and those of every U.S. citizen, remain intact.

NOTE: Please consider signing Bonnie’s Change.org petition.

The complete Tentative Draft, 600 pages long, addresses the substance of the full range of sexual assault crimes. It contains the Blackletter provisions setting forth the code’s statutory language for each section, official Comments interpreting and explaining each section, and Reporter’s Notes providing background and citations to sources relied upon by the Reporters in the draft. The original version of the Model Penal Code was published by the ALI in 1962. It was and remains highly influential. According to Wikipedia more than half the states enacted criminal codes that borrowed heavily from the MPC, and even courts in non-adopting states have been influenced by its provisions. It was a forward looking document. One important and influential contribution of the 1962 MPC was the removal of noncommercial sexual acts between consenting adults, such as sodomy, adultery and fornication, from the criminal law. In 2001, however, the Institute concluded that revision of some portions of the 50-year-old MPC had become necessary. This project, revising the portions of the MPC addressing sexual assault, is one of three separate revision projects on different portions of the code. The original MPC contained no provisions on a sexual offense registry; the inclusion of that topic in the MPC is among the most significant revisions to it now approved by the Institute.

The MPC’s registry provisions are contained in 11 sections. Including an official comment providing an Executive Summary, they are set forth in the final 120 pages of Tentative Draft No. 5. While the MPC adopts something called a registry, its substance departs significantly from existing registry laws, federal and state, as the Comments acknowledge. Key differences are:

1. Many sexual offenses that are registrable in the federal and most state laws are not registerable under the MPC provisions, which provide that no offense is subject to registration other than those it specifies as registerable. Only these five offenses (as defined by other sections of the MPC) trigger a registration obligation:

• Sexual Assault by Aggravated Physical Force or Restraint
• Sexual Assault by Physical Force, but only when committed after the offender had previously been convicted of a felony sex offense
• Sexual Assault of an Incapacitated Person, but only when committed after the offender had previously been convicted of a felony sex offense
• Sexual Assault of a Minor, but only when the minor is younger than 12 and the actor is 21 years old or older
• Incestuous Sexual Assault of a Minor, but only when the minor is younger than 16

2. There is no public notification that individuals are on the registry, whether through a public website or any other means. Access to the registry is limited to law enforcement personnel. The knowing or reckless disclosure of registry information to others is a felony.
3. The maximum registration period for the small group who remain on the registry is 15 years, but those who do not re-offend, and comply with parole, probation, or supervised release conditions, are removed after ten years. Failure to register cannot be the basis of parole or probation revocation; it is punishable only as a misdemeanor offense.
4. General rules that required location monitoring of persons convicted of a sexual offense are barred, as are most restrictions on residency, access to schools or the internet. Judges could impose such restrictions in particular cases, but only on persons currently required to register, and only upon an evidentiary showing that there are special circumstances in that particular case that justify it, and only for a limited period of time. In no case may a judge require public notification. Mandatory restrictions on employment applicable primarily to persons convicted of a sexual offense that are created by other state laws are not repealed by the MPC, but anyone subject to them may petition a court for relief from the employment bar.

The American Law Institute, established in 1923, is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law. The current Council of the ALI includes 7 members of the United States Courts of Appeal as well as Justices on the highest courts of California, Arizona, Texas, and New Jersey. The recommendations of the ALI Council become the official position of the Institute when (as with these revisions to the MPC contained in T.D. 5) they are adopted by the members, which consists of leading attorneys, law professors, and judges who have been nominated and elected to membership.

Dr. Ellman is a Distinguished Affiliated Scholar with the Center for the Study of Law and Society at the University of California, Berkeley and a Charles J. Merriam Distinguished Professor of Law and Affiliate Professor of Psychology, Emeritus, at Arizona State University. He is the author of a recent paper “When Animus Matters and Sex Offense Underreporting Does Not: The Sex Offender Registry Regime.”