Pennsylvania's Juvenile Sex Offender Registry Is Unconstitutional, State Supreme Court Rules

Justice Max Baer Photographer: Carolyn Kaster/AP Photos

Pennsylvania’s sex offender registry for juvenile offenders is unconstitutional, the state Supreme Court ruled on Monday. In a 5-1 decision, the court concluded that the state, by making an “irrefutable presumption” about adults’ behavior based on crimes they committed as teens, violated their constitutional right to due process. The current rule, which sees convicted teens added to the registry for at least 25 years, “negatively affects juvenile offenders[’] ability to obtain housing, schooling, and employment, which in turn hinders their ability to rehabilitate,” wrote (PDF) Justice Max Baer. Furthermore, he noted, the rule is “premised upon the presumption that all sexual offenders pose a high risk of recidivating.”

That presumption may be widespread, but it’s not backed up by evidence. “Multiple studies have shown that these policies do not reduce the sexual or non-sexual recidivism rates of youth who have already sexually offended,” says Elizabeth Letourneau, who directs the Moore Center for the Prevention of Child Sexual Abuse at the John Hopkins Bloomberg School of Public Health. “Those rates are already very low.” In fact, the recidivism rate for juvenile sex offenses (somewhere in the single digits, according to several studies) is drastically lower than for other crimes, notes Nicole Pittman, a senior program specialist at the National Council on Crime & Delinquency. “Children are not fixed in their patterns of offending,” says Pittman. “Children are not static in their nature.”

(Such arguments didn’t sway Pennsylvania Justice Correale Stevens, who wrote in his dissent (PDF) that “The adjudicated delinquent sex offender’s ‘right to reputation’ under such circumstances should not have precedence over a rape victim’s anguish that very well may last a lifetime,” and that “an individual juvenile offender’s behavior is the determinative factor as to whether the registration requirement will, indeed, extend throughout his lifetime.”)

Sex crimes committed by minors are much more often the result of “situational factors,” like influence from peers, impulsivity, or ignorance about appropriateness, says Hopkins’s Letourneau, than of “enduring sexual interest in children.” According to her research, minors on sex offender registries are more likely to be charged with low-level offenses, but no more likely to be convicted of them, a disparity she chalks up to a “Scarlet Letter” effect. “When you register youth,” she says, “the people around that youth, including law enforcement and society, view him or her as dangerous, and may be more likely to arrest that kid for behaviors that ultimately don’t prove to be illegal.”

That’s not the only way being consigned to a sex offender registry can do lasting harm to those convicted as teens. “The stigmatization, the traumatization, the vigilante violence, the suicidal ideations, the lack of being able to live a stable life—not being able to be employed, always being on the run in a way—was just overwhelming,” says Pittman, the author of a 2013 Human Rights Watch report based on interviews with 281 people convicted of sex offenses as minors. According to Letourneau, forthcoming research from the Moore Center shows that youths on sex offender registries were more likely to report feeling hopeless and unsafe, and less likely to report volunteering.

Still, punitive measures such as Pennsylvania’s remain popular. While the justices’ ruling rested in part on a “right to reputation” protected under Pennsylvania’s constitution, Pittman says its logic—that a blanket, decades-long assumption about adult behavior based on a teenage crime defies due process—“can be, should be, and will be” used in constitutional challenges in other states. She notes the Pennsylvania registration rule, which applied only to some sex crimes, and to offenders aged at least 14, is less punitive than those in states like South Carolina, where lesser crimes, committed by younger children, can place them on the registry for life.

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