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Child Protection: Where New Draft Law Falls Short Dec. 21st, 2018|09:11 pm

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Amidst great fanfare, yet another draft ‘child protection’ statute has been introduced. The new law, the Children's Safety Act of 2005 promises to get tough on sex offenders to ensure that they are unable to get close enough to children to harm them. On the surface, such a goal seems noble. In a year that has seen such high-profile cases such as Jessica Lunsford, Sarah Lunde and Shasta and Dylan Groene, the public, hyped to a fever pitch by sensational ‘child protection’ advocates such as John Walsh, is baying for blood. Unfortunately, however, this new law does not address the real sources of the problem of child sexual abuse. All it achieves is to brand yet more visibly those who have been convicted of such offenses in the past, ensuring that they will be yet more stigmatized and unable to re-integrate into society. Fortunately, at least one voice, that of Patty Wetterling, a United States Senate hopeful and the mother of a missing child, is questioning several of the provisions of the draft bill.

The Children's Safety Act of 2005, drafted by Republican representative James Sensenbrenner of Wisconsin, seeks to do the following:

  • create a national, publicly-accessible (via the Internet) sex offender database;
  • ease the transfer of sex offender records across state lines;
  • broaden the definition of ‘sex offender’ to include misdemeanors;
  • increase monitoring of sex offenders who have been released from prison;
  • increase sentences for sex offenses against children.

Sensenbrenner has drafted his bill to combat what he refers to as a “national crisis” of “monsters” who are targeting children. Whilst I agree that every case of sexual violence against children is tragic, the two hundred or so ‘stereotypical abductions’ that occur each year do not constitute a national crisis. On the other hand, the eleven million American children living below the poverty line are indeed a national crisis. Unfortunately, however, the hordes of inner-city and rural poor children do not have nearly as much media appeal as the handful of beautiful, middle class children who are snatched from their suburban bedrooms in the dead of night. Furthermore, the bill fails to acknowledge or address the reality that the vast majority of child abuse occurs in the child’s own home at the hands of his own parents. It also conveniently forgets that only a small percentage of those convicted of sexual offenses against children reoffend.

When he announced the bill, Sensenbrenner was joined by the ubiquitous publicity hound John Walsh, who launched his career on the unproven claim that his son, Adam, had been abducted and sexually molested (His son was abducted and killed, but police have no way of determining if he was molested, since only his head was ever found. The case remains unsolved.). Walsh added to Sensenbrenner’s hyperbole of a “national crisis” with the equally ludicrous statement that the draft law is “the most important piece of child-protection legislation in the history of the United States”. Personally, I would think that early twentieth-century legislation that curtailed the exploitation of children in factories was of vastly greater import to the cause of protecting children.

The provisions of this new draft law will commit large amounts of resources to apply unproven remedies to an insignificant problem. Publicly-accessible offender databases have not stopped evil acts against children from occurring. Both John Couey, who allegedly confessed to killing Jessica Lunsford (but has pleaded innocent), and Joseph Duncan, who has been charged in the case of Dylan and Shasta Groene, were registered sex offenders at the time of their alleged offenses. Both had been previously been convicted of felonies. Both were subject to frequent monitoring by law enforcement. Duncan served all of a twenty-year sentence for an offense he committed at the age of sixteen. In short, none of the provisions of Sensenbrenner’s new law would have prevented these terrible acts from occurring.

On the other hand, these new provisions will serve to further isolate and stigmatize released sex offenders. Whilst it is not unreasonable to expect law enforcement to monitor released sex offenders, it is cruel and unusual punishment to make registries available to the public and therefore a violation of the Eight Amendment to the United States Constitution. In addition, public registries violate the Ninth Amendment’s guarantees of the right to privacy. Public registries expose a former offender to job discrimination, housing discrimination, public ostracism, harassment and possibly even violence. The former offender must live at all times in fear of discovery and can easily become disillusioned and embittered, even to the point of becoming pathological.

Worse still, Sensenbrenner’s new draft would make absolutely no distinctions between types of sex offenders. Under this law, an eighteen-year old who had sex with a sixteen-year old would be treated the same as a forty-year old who raped a twelve-year old at knifepoint. A thirty-year old who had a consensual (albeit illegal) sexual relationship with a fifteen-year old youth would be treated the same as a thirty-year old who molested an eight-year old child after drugging him. Offenders who committed offenses before reaching the age of majority would be treated no differently than adult offenders.

Fortunately, at least one well-known child advocate finds this one-size-fits-all approach to be flawed. Patty Wetterling, whose son Jacob was abducted in 1989, said of the bill “The challenge is, you can't treat all sex offenders the same; they’re not.” Wetterling, a native of Minnesota and the head of a foundation named after her son, plans to seek the Democratic nomination for the United States Senate seat that will become vacant in 2006. She prefers the tiered system in place in her home state that distinguishes between violent and non-violent offenders.

Mark Kennedy, a Republican representative also from Minnesota, backs the bill despite its flaws. Kennedy, who plans to seek the same Senate seat as Wetterling, acknowledges that the bill has weaknesses, but has this to say: “On balance, this is a bill that advances the safety of our children, and it will have my support.” In other words, the bill is damaged goods but at the end of the day it’s the thought that counts. I wonder if this is the same sentiment that prevailed when the United States Congress recently voted to extend the Civil Liberties Emasculation Act (aka the Patriot Act). It is truly shocking that the American people stand by and watch as this confederacy of dunces systematically strips them of the very rights that their nation has come to symbolize.

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