communicative punishment of non-criminal "sex offenders"

Ohio is establishing a registry of sex offenders who weren’t criminally convicted of sex offenses.  The Blade of Toledo, Ohio, reported:

A recently enacted law allows county prosecutors, the state attorney general, or, as a last resort, alleged victims to ask judges to civilly declare someone to be a sex offender even when there has been no criminal verdict or successful lawsuit.

The rules spell out how the untried process would work. It would largely treat a person placed on the civil registry the same way a convicted sex offender is treated under Ohio’s so-called Megan’s Law.

The person’s name, address, and photograph would be placed on a new Internet database and the person would be subjected to the same registration and community notification requirements and restrictions on where [the person] could live.

Especially with the Internet, the government declaring a person to be a sex offender is a potent communicative punishment.  Most persons consider sex offenders to have committed some of the most vile crimes imaginable.  Ohio’s electronic sex offender registration and notification system communicates detailed, immediate information about sex offenders’ movements to interested parties.  “Visitors to the {Ohio sex offender Internet site} can register to have an e-mail message sent directly to them any time a registered sex offender moves within a mile of any specified address.”

The political incentives to impose such communicative punishments are relatively strong.  The first sex offender registry was established in New Jersey in 1994 (Megan’s Law).  Within a decade, sex offender registries were established across the U.S.. Such a registery is now under consideration in the U.K. (Sarah’s Law).  The story of a young girl viciously raped and killed easily attracts public attention.  Protecting children is a propitious basis for legislation.  Even better, legislation that imposes communicative punishments don’t cost much public expenditure. Communicative punishment is much cheaper than imprisonment.

Given these circumstances, communicative punishments merit strict scrutiny for due process.  What about “the right to a speedy and public trial by an impartial jury; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel in his defense”?  Forget about those rights.  A declaratory judgment, based on the preponderance of the evidence, is all that is necessary for the government to communicate powerfully that a person has joined the heinous category of sex offenders {see Sec. 2721.21 of the Act}.

Ohio’s civil communicative punishment of sex offenders seems to have been the product of a sordid deliberative failure. The Blade reported:

The concept was offered by Roman Catholic bishops as an alternative to opening a one-time window for the filing of civil lawsuits alleging child sexual abuse that occurred as long as 35 years ago.

The Ohio Supreme Court a few months earlier issued a ruling affirming a time limit for filing abuse cases.  This matter is more awful than the Awful Disclosures of Maria Monk.  It’s more awful because priest have in fact awfully abused children.  I would guess that was also true in the early nineteenth century.  From 1950 to 2002, however, about $650 million has changed hands in judgments against Catholic churches and religious communities concerning sex abuse. This new legal development provides new motivation to address the serious problem of sex abuse.  The solution that the Roman Catholic bishops proposed in Ohio shows that the problem concerns everyone.

Protection of civil liberties are central to the rule of law.  But perhaps the only deliberative fate worse than being an accused sex offender is being accused of defending accused sex offenders.  The Blade reported:

No one in attendance voiced opposition to rules {concerning civil denunciations of a person as a sex offender} submitted by Attorney General Jim Petro’s office to the Joint Committee on Agency Rule Review, consisting of members of the Ohio House and Senate.

In fact, you can find right in the New Jersey State Constitution this text:

Notwithstanding any other provision of this Constitution and irrespective of any right or interest in maintaining confidentiality, it shall be lawful for the Legislature to authorize by law the disclosure to the general public of information pertaining to the identity, specific and general whereabouts, physical characteristics and criminal history of persons found to have committed a sex offense. {NJ Constitution, Art. IV, Sec. VII, para. 12, added Dec., 7, 2000}

This text essentially states that the rest of the Constitution does not apply to persons “found to have committed a sex offense.”  And what does it take to make such a finding? In Ohio, it’s a civil declaratory judgment based on preponderance of the evidence.  Liberty under law, including liberty from personally damaging government communication, should be more secure than this.

4 thoughts on “communicative punishment of non-criminal "sex offenders"”

  1. I think that Idea is Stupid as Meghans law is in the first place,,The act of one man made it Hard for all others accused..Ok,,A Black man gets Hung for a Crime,, So all blacks should be labeled Potential Criminals,, I dont see the difference..and,, why arent there Drug Pusher Registries and why arent there Murderer and Wife Beater Registries,,I bet more women have died in Domestic abuse than ever have in Child molestation Cases,, and many more with Drug pushers…And Futher more,, the one That killed Megan should be classified as a Murderer!!!!!!!! If he hadnt murdered her, would there still be a Sex offender Registery??

  2. Oh, and another thing,,, An offender cant live within 1000 feet of a school, A Supervised place,, but Children can walk home Right past an offenders house,,UNSUPERVISED,,,and can pass an offender up at a Mall and Church.. Are Offenders Prohibited from Entering park? Also,,,Most,, if not all Molestations happen Not at schools,,but in homes and parks,,if Im not mistaken…I just dont get it.. If Lawmakers have to do something for Liabity purposes,, why dont they just hop up and down on one leg and say Hail Mary 10 times… itd be just as effective as Megans law

  3. This new Ohio Law is Unconstitutional, and completely off the hook. These lawmakers are indeed TRAITORS to the American People. They continue to enact these laws under the guise of child protection, yet there is no convincing evidence that any of these laws protect anyone from sexual abuse. The people need to wake up before it’s too late. These lawmakers are out of control. Have you noticed that they continue to harp on the sexual abuse issue, even though there are far more serious issues facing our Nation today?
    “Let us remember, that ‘if we suffer tamely a lawless attack upon our liberty, we encourage it, and involve others in our doom.’ It is a very serious consideration, which should deeply impress our minds, that millions yet unborn may be the miserable sharers in the event. — Samuel Adams”

    Wake up Ohio, we are being destroyed from within, by those we continue to elect and support, because they prey upon our emotional sensitivities. It’s all about propaganda, and you all seem to fall right into it.


  4. And another thing:

    “God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty…. And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure. — Thomas Jefferson”

    Maybe our lawmakers need a sample of what Americans do to TRAITORS to their oaths of office, or the Constitution of the United States; which includes the Bill of Rights.

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