In recent years, the federal government enacted laws that created a nationwide sex offender database and required every state to meet new, more stringent registration standards under their own sex offender laws. It also enacted the Adam Walsh Act which, for the first time, allowed prosecutors and the Bureau of Prisons to civilly commit persons convicted of certain sex offenses.
The U.S. government used the power of the purse to compel every state to enact sex offender registration laws and, if a state already had such laws on the books, to increase the breadth of application to more offenders and increase penalties. The following are a series of acts adopted by the federal government to increase the registration requirements and other aspects of sex offender laws.
Enacted in 1994 following a horrific child abduction, the Wetterling Act mandates minimum standards that states have to meet regarding sex offender registration, or face the loss of federal funding. The Act recommends baselines for:
(42 U.S.C. § 14071.)
Following the sexual assault and murder of a young girl by a neighbor with a record of convictions for sex crimes against children (unbeknownst to the girl’s parents), Congress enacted Megan’s Law. (42 U.S.C. § 14071 (e)(2) (1996).) Megan’s Law requires states to set up procedures to notify the public of convicted sex offenders living in their communities.
Congress responded to the abduction and murder of a young boy by enacting the Adam Walsh Child Safety and Protection Act of 2006 (“AWA”). (42 U.S.C. § 16911.) Although authorities could not establish whether Adam’s murderer also sexually assaulted him, the AWA focused on further bolstering federal sex offender laws and provided for the civil commitment of persons convicted of certain sex offenses.
The AWA defines a “sexual offense” as one that involves “a sexual act or sexual contact with another.” (42 U.S.C. § 16911 (5)(A)(i).) This definition includes a wide range of conduct, including indecent exposure and possessing child pornography.
The AWA also mandates that offenders age 14 or older must register as sex offenders, but does exempt consensual sex if the victim is at least 13 years old and the offender is no more than four years older. And, it ordered that states use websites and direct notification means to alert community volunteer organizations, schools, public housing agencies, and social service agencies in the area(s) where the offender resides, works, or attends school.
Congress also required the states to meet the stricter federal standards, including the age 14 and up provision, imposed by the AWA or risk losing public monies.
People convicted of the most serious sexual offenses (such as rape, sexual assault, and child molestation) must register every three months for life (see State Sex Offender Registration for a discussion of registration requirements and restrictions on registered sex offenders). People convicted of lesser but still quite serious offenses (such as sex trafficking, solicitation of prostitution, and production of child pornography) must register every six months for 25 years. And, people convicted of the least serious offenses (such as possession of child pornography, indecent exposure) must register every year for 15 years.
If a sex offender moves from one state to another, he or she must register in both the state in which convicted and the new state of residence under the AWA.
The AWA also created a national sex offender database. It contains names and other registration information for every sex offender registered throughout the country. The public and law enforcement can access this information on a website.
A federal prosecutor or the Bureau of Prisons may detain a person indefinitely, even after the end of his or her prison sentence, through the civil commitment provision in the AWA. Under the AWA, civil commitment is justified if it seems that the offender will have “serious difficulty in refraining from sexually violent conduct or child molestation if released.” (18 U.S.C. § 4247.)
Involuntarily committed individuals are entitled to a hearing every six months to consider commitment status, if requested.
One-third of the men committed to institutions under the AWA were convicted of child pornography charges. In the U.S. Supreme Court decision upholding civil commitment in federal sex offender cases, U.S. v. Comstock, three of five petitioners had pled guilty to possessing child pornography and challenged federal civil commitments as exceeding the proper powers of the federal government. The Court held that the civil commitment law was a “modest addition” to federal prison mental health statutes and rejected their argument.
The Comstock case illuminates the great risk taken by anyone who even views what may be child pornography on a computer screen.
Single Incident of Viewing Child Pornography May Lead to Civil Commitment
Graydon Earl Comstock pled guilty to a single count of receiving by computer a depiction of a minor engaged in a sexual act. He was sentenced under a federal law that made receiving pornography via computer (or U.S. mail) a federal crime. (18 U.S.C. § 2252.) Although Comstock pled guilty prior to the enactment of the AWA, he was nevertheless committed to a mental institution for an indefinite period under the AWA after the end of his prison sentence.
The AWA has been used to prosecute people who sought out or responded to depictions of what appeared to be children (but were actually adult law officers) engaging in sexual conduct or offering to do so. This is because a person can be convicted of child pornography/child abuse where the “child” is an undercover officer who is not a minor but poses as one. A boudoir photo texted by the cute girl could be child pornography if she is under age, and anyone in possession of it is subject to prosecution. And, texts and other digital communications and data never go away, making the threat of prosecution one that lasts long after the image has been “deleted.”
People convicted of sex offenses often undergo therapy with prison psychologists. However, unlike therapy sessions in other settings, information provided by a sex offender to a therapist is not privileged or confidential. Statements made by sex offenders to prison psychologists have been used to as evidence supporting civil commitment of the offenders.
If you have been, or are concerned that you may be, charged with a sexual crime, see a lawyer experienced in criminal defense law in the state in which you were charged. If you are charged with any crime that carries the possible requirement that you register as a sex offender, it is imperative that you seek legal advice. Registering as a sex offender severely limits where you can work, live, and spend time, and it follows you even after the end of the registration period specified in the statute because it remains on your record. And, designation as a sex offender can also present the risk of civil commitment. Do not delay in finding a lawyer.