July 27, 2011 -- Legislators in states across the country rushed to enact laws to register sex offenders after some horrific cases that involved the abuse of youngsters at the hands of adults. But the laws have also been applied to cases that don't seem to fit the mold of sex predators who deserve a host of restrictions, often for the rest of their lives.
Just last week, two New Jersey boys who were 14 at the time of an offense that some have labeled as horseplay learned they must register for life as sex offenders. The case involves two New Jersey teens – now 16 - who held down a couple of 12-year-old boys and placed their bare buttocks on their faces.
An appellate court has judged the incident to be "roughhousing with sexual connotation." Under New Jersey's Megan's law, this ruling requires the teens to register as sex offenders for the rest of their lives, though they can only apply for a reversal -- in 15 years.
The boys' case had initially gone to trial, where they were found guilty of criminal sexual behavior. When asked to explain their behavior – one boy told the trial judge, "I did it cos I thought it was funny, and I was trying to get my friends to laugh." The trial judge, however, did not see the humor. He deemed the act was intended specifically to degrade the victims and therefore constituted criminal sexual conduct.
The second boy pled guilty to criminal sexual conduct and was given the same penalty. Both then unsuccessfully appealed.
Megan's Law, established in 1994 after the rape and murder of Megan Kamka by a previously convicted sex offender, can apply to young teens and even kids as young as 8. It usually requires those convicted of criminal sexual conduct against a minor to notify police of changes of address and employment for life.
States decide independently how to implement Megan's law, but where juveniles are required to register as sex offenders, it often means the defendant's picture, name, address and the nature of their crime is publicly disseminated. It can also mean the persons on the registry can't live near schools, playgrounds, day care centers or other places where there are children present.
John S. Furlong, a New Jersey sex crime defense attorney, describes Megan's Law as "like a sledgehammer to a thumbtack. Punishment for bullying younger kids should be detention…" he says. "Forcing them to register for Megan's law is first beyond the pale and second, cheapens the law."
Although in this case the perpetrators and victims were similar ages, and both minors – the punishment still applies, meaning the two boys will be placed on the sex offender registry. The boys families appealed the ruling on the grounds that the sentence was unduly harsh; that the act committed amounted to horseplay and did not warrant the boys being forever branded sex offenders.
But judges in the appeals case ruled the action committed did, under the terms of Megan's Law, equate criminal sexual conduct. "Labeling these outrageous acts mere horseplay" runs counter to the clear language defining the offense of criminal sexual," read the appellate opinion. "Legislature defined 'sexual contact' as 'an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor.'"
The appellate judges acknowledged that the consequences of their ruling, would be extreme for the two. "We are keenly aware that our decision may have profound lifelong ramifications for these two boys as well as others similarly situated," Judge Jose Fuentes wrote.
But the panel claimed they were duty bound by law to rule as they did. "Although we are not unsympathetic to the arguments criticizing the application of the lifelong registration requirements in Megan's Law to 14-year-old offenders," they said, "we are bound to uphold such application because that outcome is mandated by the Legislature."
Furlong, who wrote Megan's law guide "Sex Offender Registration and Community Notification: A Megan's Law Sourcebook," says once you plead guilty or are found guilty of a criminal sexual act there's not much you can do to avoid Megan's law. "Megan's law is agnostic," he explains, "you plead guilty to an enumerated offense, you shall register." At this stage he says the only solution for the teens is to attack the integrity of the evidence that found them guilty.
The case serves to highlight aspects of Megan's law which many believe when applied to juveniles have glaring flaws. Asked if the language of the legislature means that in theory a 12-year-old can be prosecuted under Megan's law for pulling down a classmate's pants in front of other kids, for example, Furlong says yes, indeed it does.
Siblings 'Flashed' Each Other
Leah DuBuc was convicted of criminal sexual conduct age 12 after she and her 2 stepbrothers, 8 and 5, 'flashed' each other and simulated sex while clothed. She told a court she engaged in sexual conduct with her brothers, but later said she had lied about that part in order to "get away" from her stepmother.
DuBuc, who's still on Megan's list, told USA Today that, years after she was first put on the list, it's still overshadowing her life. Dubuc claimed she suffered social persecution at college, was turned down for jobs and internships, and was unable to attend half-siblings' school events because of her conviction. She said although since that time she's worked teaching English abroad and volunteered at a homeless shelter – she can't escape her stigma. "It was stupid child's play," she said, "and now I'm on the list until I'm 37."
The issues with Megan's law are particularly acute because the language of the law defines so many acts as criminal sexual behavior, and requires that legislators do the same. The effect of the law is sometimes to lump juveniles who have committed fairly minor crimes in with the same boat as dangerous pedophiles, which many believe can be irrevocably damaging.
After being placed on Michigan's sex offender registry age 17 for having sex with a fellow student, Justin Fawcett believed he'd never again have a job or a girlfriend, owing to the stigma of being publicly registered under Megan's Law. Although his family reassured him Michigan would change the law and allow his name to be removed from the registry, by the time this did in fact happen – Justin had overdosed at age 20.
Furlong says this case is only one of many he's seen follow the same path. "I've had to deal the the suicide of 3 clients," he says. "I had a case recently of a guy who drank himself to death after pleading guilty at 17 years old for a Megan's law offense that a subsequent marijuana possession felony meant he could never overturn. So have I seen the consequences? Yes."
Indeed not only do detractors believe Megan's Law can be harmful to juveniles, but some evidence suggests Megan's Law has also been unsuccessful at preventing sex crimes. A 2009 study by independent psychologists for the New Jersey department of corrections policy and planning, found that Megan's law in that state "has no demonstrable effect in reducing sexual re-offenses."