Penn State Journal of Law & International Affairs
Volume 2 | Issue 2

November 2013

The Cost of Fear: An Analysis of Sex Offender
Registration, Community Notification, and Civil
Commitment Laws in the United States and the
United Kingdom
Kate Hynes
Dickinson School of Law, Penn State University

ISSN: 2168-7951
Custom Citation
The Cost of Fear: An Analysis of Sex Offender Registration, Community Notification, and Civil Commitment Laws in the United States and
the United Kingdom, 2 Penn. St. J.L. & Int’l Aff. 351 (2013).

The Penn State Journal of Law & International Affairs is a joint publication of Penn State’s School of Law and School of International Affairs.

Penn State
Journal of Law & International Affairs
2013

VOLUME 2 NO. 2

THE COST OF FEAR: AN ANALYSIS OF
SEX OFFENDER REGISTRATION,
COMMUNITY NOTIFICATION, AND
CIVIL COMMITMENT LAWS IN THE
UNITED STATES AND THE UNITED
KINGDOM
Kate Hynes*
INTRODUCTION
“Stranger danger” has become a common phrase in the
United States and the United Kingdom.1 The term has been used as
an educational tool to protect children from danger, especially from
sexually based crimes.2 In both countries, highly publicized sex
crimes have maintained public focus on the evil nature of sexual

* J.D. Candidate, 2013, Dickinson School of Law, Pennsylvania State
University.
1 See
National Center for Missing and Exploited Children,
http://www.missingkids.com/missingkids/servlet/NewsEventServlet?LanguageCo
untry=en_US&PageId=2034 (last visited Jan. 18, 2012)(United States website
providing children and parents with information about the danger posed by
strangers); Gloucestershire Constabulary,
http://www.gloucestershire.police.uk/kids_aware/3.html (last visited Jan. 18,
2012) (United Kingdom website providing a similar sentiment regarding the
dangers that strangers pose to unwitting children).
2 See Ernest E. Allen, Keeping Children Safe: Rhetoric and Reality, 5 JUV. JUST.
J. 1, 16 (1998).

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crimes and led to reactionary legislation.3 The two countries have
taken different approaches in dealing with the public outcry.
One method of dealing with sex offenders is “keeping a close
eye on them.” In the United States, the general public has access to
personal information about sex offenders by federal mandate.4 Yet,
worldwide, the public availability of sex offender information is not a
widely accepted premise.5 The vast majority of countries that have
created sex offender registries do not allow public access to the
records.6 Like many countries that maintain sex offender registries,
the United Kingdom restricts open access to registry information. 7
A second method of controlling sex offenders is keeping
them confined beyond their prison sentence. Civil commitment is the
involuntary commitment of a mentally-ill individual for an indefinite
period of time.8 Both the United States and the United Kingdom
practice civil commitment, but only the United States has passed
specific civil commitment legislation for sex offenders.9
Sex offender laws in the United States are detrimental to both
the general public and to the offenders themselves. In contrast, the
See Meghann J. Dugan, Megan’s Law or Sarah’s Law? A Comparative
Analysis of Public Notification Statutes in the United States and England, 23 LOY. L.A.
INTL. & COMP. L. REV. 617, 633 (2001) (noting the high profile murder and sexual
assault of eight year old Sarah Payne in the United Kingdom); MEGAN NICOLE
KANKA FOUNDATION,
http://www.megannicolekankafoundation.org/mission.htm (last visited Jan. 18,
2012) (describing the rape and murder of seven year old Megan Kanka in New
Jersey); Benjamin Radford, Predator Panic: Reality Check on Sex Offenders, LIVE
SCIENCE (May 16, 2006), http://www.livescience.com/776-predator-panic-realitycheck-sex-offenders.html (explaining that media focus on inaccurate information
regarding sex offenders creates a false perception that sex offenders pose a real and
present threat at all times).
4 See 42 U.S.C.A. § 16914(West 2006).
5 See David Crary, Human Rights Watch Report Criticizes State, Federal SexOffender
Laws,
THE
ASSOCIATED
PRESS
(Oct.
12.
2007),
http://www.iht.com/bin/print.php?id=7482413.
6 See id.
7 See Dugan, supra note 3, at 617.
8 See BLACK’S LAW DICTIONARY 279 (9th ed. 2009).
9 See generally 42 U.S.C.S. § 16911 (LexisNexis 2006); The Mental Health
Act, 1893, c. 4, § 63 (U.K.).
3

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United Kingdom’s trend toward protecting the rights of sexual
offenders in both case law and legislation is a more appropriate and
effective way to handle sex offenders. In Part I, this Comment will
outline the diverging trends in the right to privacy for sex offenders
that has developed in the United Kingdom and the United States. 10
Part II offers evidence to disprove many common misconceptions
regarding sex offenders and the economic consequences of these
perceptions.11 Parts III and IV discuss sex offender laws in the
United States and the United Kingdom and the dramatic impact that
public opinion has had on such legislation.12 In Part V, the comment
will explore judicial authority regarding issues of sex offender
registration, community notification, and civil commitment. 13 Finally,
Parts VI and VII will analyze the effectiveness of current sex
offender laws in both countries and provide recommendations for
the future.14
I. THE RIGHT TO PRIVACY
The United States Constitution does not explicitly reference a
right to privacy,15 but the Supreme Court has recognized privacy as a
fundamental right in certain contexts.16 The Supreme Court has
established that the right to privacy is a “penumbra” which is derived
from other, more explicit Constitutional protections.17 Courts have
also established that a sex offender’s privacy rights remain secondary
to maintaining public safety.18 In the United States, when a right is
considered fundamental the government must provide compelling
reasons to infringe on the right and must use means that are
“narrowly tailored” to achieve its goal.19 The Supreme Court has
See infra Part I.
See infra Part II.A, B.
12 See infra Part III, IV.
13 See infra Part V.
14 See infra Part VI, VII.
15 See generally U.S. CONST.
16 See Lee Goldman, The Constitutional Right to Privacy, 84 DENV. U. L.
REV. 601, 605 (2006).
17 See generally Griswold v. Connecticut, 381 U.S. 479, 480 (1965).
18 See Kimberly B. Wilkins, Sex Offender Registration and Community
Notification Laws: Will These Laws Survive?, 37 U. RICH. L. REV. 1245, 1254-55 (2003).
19 Goldman, supra note 16, at 602.
10
11

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protected individual decisions in some areas like family life, marriage,
and the upbringing of children under the right to privacy.20
Instead of a written Constitution the United Kingdom relies
on several governing treaties.21 Like the United States, the United
Kingdom’s privacy rights are not unequivocally articulated in these
governing documents. In 1998, the United Kingdom adopted the
European Convention on Human Rights [hereinafter “ECHR”] into
law through the Human Rights Act of 1998, making it binding law in
the United Kingdom.22 Article 8 of the ECHR contains a privacy
provision: “Everyone has the right to respect for his private and
family life, his home and his correspondence.” 23 Paralleling the trends
in the United States, Article 8 restricts the right to privacy in the
interest of public safety.24
II. SOCIAL AND ECONOMIC IMPLICATIONS OF SEX OFFENDER
LEGISLATION
A. Social Implications
The surge of sex offender legislation in the United States and
the United Kingdom mirrors the public’s fear and opinion toward sex
offenders.25 Studies in each country have shown that the general
population’s perceptions of sex offenders are often skewed. 26 The
See 16B AM. JUR. 2D Constitutional Law § 944 (2004).
Bradley P. Jacob, Back to Basics: Constitutional Meaning and “Tradition,” 39
TEX. TECH. L. REV. 261, 271 (2007).
22 See An Introduction to Child Protection Legislation in the UK, NSPCC (Oct.
25, 2011),
http://www.nspcc.org.uk/inform/research/questions/child_protection_legislation
_in_the_uk_wda48946.html (last visited Feb. 2, 2012).
23 R and Thompson v. Secretary of State for the Home Department,
[2010] UKSC 17, [2011] 1 A.C. 331, 339 (appeal taken from Eng.).
24 See id.
25 See Brittany Enniss, Quickly Assuaging Public Fear: How the Well-Intended
Adam Walsh Act Led to Unintended Consequences, 2008 UTAH L. REV. 697, 699 (2008).
26 See generally Karen Gelb, Recidivism of Sex Offenders, SENT’G ADVISORY
COMMITTEE (2011),
http://www.sentencingcouncil.vic.gov.au/sites/sentencingcouncil.vic.gov.au/files/
recidivism_of_sex_offenders_research_paper.pdf.
20
21

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public tends to view strict sex offender laws as necessary to protect
the most vulnerable people in the population, children.27 Moreover,
individuals tend to see these laws as legitimate, because they perceive
sex offenders as having high recidivism rates.28 These perceptions
often fall far from reality. Studies have indicated that sex offenders
have among the lowest recidivism rates when compared to all
criminals.29 Additionally, some of the most dangerous sexual crimes,
those involving rape and murder, account for less than three percent
of sexual offenses perpetrated in the United States. 30
The perception that many sex crimes against children are the
result of strangers prowling around playgrounds is also a
misconception.31 In reality, ninety-three percent of sex offenders who
perpetrate crimes against children know their victims.32 Children are
much more likely to be abused by someone they know and trust, than
from an unknown individual holding out candy from a dark sedan. 33
The perpetuated fear of “stranger danger” might actually be giving
parents an unwarranted feeling of safety around the people with
whom their children are most familiar.
B. Economic Implications
Penal systems in the United States create large budgetary
concerns for both the federal government and the states.34 Experts
indicate that prison systems are the second fastest growing

27 See Jill S. Levenson, Public Perceptions About Sex Offenders and Community
Protection Policies, 7 ANALYSES OF SOC. ISSUES AND PUB. POL. 1, 17 (2007).
28 See id.
29 See id.
30 See Robert E. Freeman-Longo, Revisiting Megan’s Law and Sex Offender
Registration: Prevention or Problem, AM. PROBATION AND PAROLE ASSOC. (2001), 4
http://www.appa-net.org/eweb/docs/appa/pubs/RML.pdf.
31 See Levenson, supra note 27, at 17.
32 See id.
33 See id.
34 See Carrie Johnson, Budget Crisis Forces a New Approach to Prisons, NAT’L
PUB. RADIO (Feb. 15, 2011),
http://www.npr.org/2011/02/15/133760412/budget-crunch-forces-a-newapproach-to-prisons (the cost to maintain the prison system in the United States is
$50 billion annually).

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expenditure in state budgets.35 Administering additional sex offender
programs after the inmate is released from incarceration inevitably
adds to the already overinflated penal system budget.36
Large registration systems can be nearly impossible for law
enforcement to effectively monitor.37 One police captain in Georgia
noted that he needed four police officers working full time just to
monitor the sex offender database in one county.38 As the number of
sex offenders on a registry increases, it becomes more difficult for
both police and civilians to distinguish between dangerous sexual
offenders and non-violent offenders.39
Sex offender registration and community notification also has
an economic effect on the community where a sex offender resides.40
One study showed that home prices deflate by approximately nine
percent if a sex offender lives within one tenth of a mile of the
property.41 The perception of safety is a considerable factor for many
homebuyers.42
Civil commitment also carries an enormous financial burden.
The Washington Institute for Public Policy determined that the cost
of operating facilities to hold sex offenders in 2004 was $224 million

See id.
Maggie Clark, States Struggle with National Sex Offender Law, STATELINE
(Jan. 5, 2012), http://www.stateline.org/live/details/story?contentId=622764.
37 See HUMAN RIGHTS WATCH, No Easy Answers Sex Offender Laws in the
US (Sept. 12, 2007),
http://www.hrw.org/reports/2007/09/11/no-easy-answers-0.
38 See Stephanie Chen, After Prison, Few Places for Sex Offenders to Live,
WALL ST. J. (Feb. 19, 2009), at A16 (explaining that law enforcement are among the
most vocal critics of rigid sex offender legislation).
39 See Sex Laws Unjust and Ineffective, THE ECONOMIST, Aug. 6, 2009, at 31.
(describing an incident of oral sex that caused a sixteen year old girl to become a
registered sex offender).
40 See Press Release, Longwood University, Research by Longwood Business
Professor Examines Sex Offenders’ Effect on Home Sales (Aug. 06, 2009),
http://www.longwood.edu/2010releases_26711.htm.
41 See id.
42 See id.
35
36

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annually.43 In New York, the average cost to hold a sex offender in a
facility in 2010 was $175,000.44
III. SEX OFFENDER LEGISLATION IN THE UNITED STATES
A. Federal Legislation
In the United States, public fear and outrage have been
effective motivators in passing broad legislation regarding sex
offenders.45 In 1994, Congress passed the Jacob Wetterling Crimes
against Children and Sexually Violent Offender Registration Act,
which required every state to maintain a sex offender registry.46 The
Act was named in honor of an eleven-year old boy who was
kidnapped near his home by an unidentified male and is still missing
today.47 The statute provided that sex offenders had to register with
the police, but lacked a public notification provision.48
In 2006, Congress passed the Adam Walsh Child Protection
and Safety Act (“Walsh Act”), which expanded on the prior federal
43 See Involuntary Commitment of Sex. Violent Predators: Comparing State Laws,
WASH. INST. FOR PUB. POL. (Mar. 2005), http://www.wsipp.wa.gov/rptfiles/0503-1101.pdf (civil commitment of sex offenders differs drastically from jurisdiction
to jurisdiction, some states have a very large range of offenders who qualify for
commitment).
44 See Rosemary Black, Treatment for a Sexual Predator Costs a Whopping
$175,000 Per Person Per Year in New York: Study, N.Y. DAILY NEWS, June 22, 2010,
http://www.nydailynews.com/life-style/treatment-sexual-predator-costswhopping-175-000-person-year-new-york-study-article-1.181482.
45 See Public Opinion and the Criminal Justice System: Building Support for Sex
offender Management Programs, CENTER FOR SEX OFFENDER MANAGEMENT (2000),
http://heartland.org/policy-documents/public-opinion-and-criminal-justicesystem-building-support-sex-offender-management.
46 See 42 U.S.C.A. § 14071(West 2006).
47 See id.
48 Alisha Powell, A Systematic Review of Surveys on Public Attitudes
Toward Community Notification for Sex Offenders, University of Alabama
(2010)(unpublished M.S. thesis, University of Alabama) (on file with the University
of Alabama Library System)(Under the Jacob Wetterling Crimes against Children
and Sexually Violent Offender Registration Act a sex offender is anyone who is
convicted of a sex crime, but sexual offences are not limited to crimes that involve
the act of sex).

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sex offender legislation.49 The statute’s purpose is to “protect the
public from sex offenders and offenders against children” by
establishing a comprehensive national system for the registration of
sex offenders.50 Under the Walsh Act, a sex offender is required to
provide his/her name, social security number, address, place of
employment, and license plate number.51 The statute indicates that
this information, as provided by the offender, will be accessible to the
public.52
In addition, the Walsh Act provides guidance to the states on
structuring state sex offender legislation.53 The Walsh Act mandates
that the Federal Attorney General promulgate guidance and
regulations for structuring state-specific sex offender databases.54 The
Attorney General’s guidelines explicitly state that the Walsh Act
establishes the minimum applicable standard for sex offender
registration.55 As a result, states have the authority to create
registration requirements that are more comprehensive than the
federal legislation.56
One example of the direction that the Walsh Act provides to
states is the length of time a sex offender will remain on the registry.57
The length of the registration requirement is dependent on the
classification of the sex offender.58 The Walsh Act sets out the
maximum registration for Tier I offenders as fifteen years, Tier II
offenders as twenty-five years, and Tier III offenders can be required
to register for life.59 Under the Walsh Act, Tier III offences are those
punishable by more than one year in prison and require at least one
of the following: a) aggravated sexual abuse or sexual abuse; b)
See generally 42 U.S.C.A. § 16901 (West 2006).
Id.
51 See 42 U.S.C.A. § 16914(West 2006).
52 See id. § 16918.
53 See id. § 16914.
54 See id. § 16912.
55 See The National Guidelines for Sex Offender Registration and
Notification, 72 Fed. Reg. 30212 (May 30, 2007).
56 See id.
57 See 42 U.S.C.A. § 16915 (West 2006).
58 See id.
59 See id.
49
50

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abusive sexual conduct with a minor under the age of thirteen; c)
kidnapping of a minor; or d) that the offense be committed after the
offender becomes a Tier II offender.60
Tier II offenses are also punishable by more than one year in
prison and include one of the following: a) sex trafficking; b)
coercion and enticement; c) transportation with intent to commit
sexual activity; or d) committing an offence after becoming a Tier I
offender.61 Each of the previous offences must incorporate either
sexual activity with a minor, soliciting a minor for prostitution, or the
creation or circulation of child pornography.62
Tier I offenses include all sexual offenses not included in Tier
II and Tier III, which can include both felonies and misdemeanors. 63
The all-encompassing nature of Tier I offenses shows that an
extensive number of crimes can land an individual on the sex
offender registry.
The overly-broad guidance provided by the Walsh Act has
significant consequences.64 Many state laws show that a relatively
mild offense can cause an individual to become part of the sex
offender registry.65 To illustrate, thirteen states have incorporated
public urination into their list of sexual offenses; and twenty-nine
states include consensual sex between teenagers.66
B. State Specific Legislation: A Study of Two States
Currently, under the Adam Walsh Act, every state has
developed a sex offender registry and community notification
scheme.67 States have taken different approaches in enacting sex
offender legislation and managing sex offenders. The legislation of
See id. § 16911.
See id.
62 See 42 U.S.C.A. § 16911 (West 2006).
63 See Lori McPherson, Practitioner’s Guide to the Adam Walsh Act, AM.
PROSECUTORS RES. INST., 2007, at 1.
64 See HUMAN RIGHTS WATCH, supra note 37.
65 See id.
66 See id.
67 See 42 U.S.C.A. § 16912(West 2006).
60
61

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two states, Vermont and Alabama, highlights the enormous amount
of discretion provided by the Walsh Act.68
Vermont’s Community Notification of Sexual Offenders
Statute [hereinafter “Vermont Notification Statute”] does not
automatically publicize a convicted sex offender’s information.69 The
statute requires sex offenders to provide the information suggested
by the federal guidelines in the Walsh Act: name; general physical
description; sentence; address; place of employment; nature of the
offense; and compliance with treatment recommendations.70 Instead
of making all sex offender information available to the public, the
Vermont Notification Statute permits courts to determine whether an
individual is a “sexually violent predator.”71 If the court determines a
sex offender to be a sexually violent predator by clear and convincing
evidence, the offender will be placed on the sex offender registry for
life and be subject to community notification.72 An individual who is
adjudged not to be a sexually violent predator will not be subject to
community notification.73
Alabama’s sex offender legislation has taken a different path.
In 2011, the Alabama House of Representatives unanimously voted
to make the State’s sex offender laws stricter through the Alabama
Sex Offender Registration and Community Notification Act
[hereinafter “Alabama Sex Offender Act”].74 The statute requires all
offenders who have been convicted of a sex offense to join the
registry and be subject to public notification of their status.75 Unlike
Vermont’s law, Alabama’s statute does not distinguish between levels
of crimes for purposes of public notification. 76 The statute’s
definition of a sexual offense broadly encompasses many crimes,

See generally Vt. Stat. Ann. tit. 13, § 5402 (2009); AL ST § 15-20A-3.
See Vt. Stat. Ann. tit. 13, § 5405 (2009).
70 See id. § 5411.
71 See id.
72 See id.
73 See id.
74 See House Passes Stronger Sex Offender Bill, ASSOCIATED PRESS, May 25,
2011, at A12.
75 See AL ST § 15-20A-3.
76 See id. § 15-20A-5.
68
69

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ranging from very serious crimes like sexual torture to comparatively
minor crimes like indecent exposure.77
The Alabama Sex Offender Act further imposes substantial
burdens on registered sex offenders for the duration of the
registration.78 For example, sex offenders are required to verify their
registration in person every three months.79 This obligation will be
enforced indefinitely in cases where the particular sex offense
requires lifetime registration.80 Homeless sex offenders bear the even
greater burden of being required to report in person to local law
enforcement every seven days to verify their registration. 81 If an
individual does not comply with the verification procedures, he or
she may be subject to felony charges.82
One of the most striking aspects of the Alabama Sex
Offender Act is the electronic monitoring system.83 The statute
compels individuals who were either guilty of a Class A felony or
deemed to be a sexually violent predator to comply with electronic
monitoring procedures for at least ten years.84 The monitoring system
produces reports, upon request, of a particular sex offender, to
determine if he or she was near a crime scene, left an identified area,
or violated curfew requirements.85
C. The Diverging State Trends under the Walsh Act
The significant contrast in legislation promulgated in
Alabama and Vermont shows the immense discretion provided to
states by the Walsh Act.86 Furthermore, the approaches illustrate two
major issues that sex offender legislation addresses: public safety and
the human rights of sex offenders. Ideally, such legislation will
77
78
79
80
81
82
83
84
85
86

See id.
See id. § 15-20A-10.
See id.
See AL ST § 15-20A-10.
See id. § 15-20A-12.
See id.
See id. § 15-20A-20.
See id.
See AL ST § 15-20A-20.
See 42 U.S.C.A. § 16914(West 2006).

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balance both issues without allowing fear to tip the scales against
preserving sex offender rights.
One positive aspect of the Vermont Notification Statute is
that it considers public safety while also acknowledging the rights of
convicted sex offenders.87 An official within the Vermont
Department of Justice explained that reducing the number of sex
offenders subject to community notification serves two purposes.88
First, it aids the community in recognizing the offenders that pose a
significant threat; and second, it helps sex offenders reintegrate into
society.89
The first purpose indicated by the Vermont Department of
Justice addresses the safety concerns that have been a driving force in
the creation of sex offender registration laws throughout the United
States. An individual’s ability to determine the potential danger posed
by an offender can be reduced when a registry has a mixture of
violent offenders and non-violent offenders. Vermont’s legislation
assists with this concern by providing public access to the offenders
who potentially pose the largest threat to society.
The second purpose, reintegration, is focused on the rights of
sex offenders rather than public safety. Vermont’s legislation aids
reintegration into the community because it allows sex offenders,
who have committed a non-violent offense, to remain anonymous.
This anonymity arguably does not have a detrimental effect on public
safety because the police still have access to all sex offender
information.90
In contrast, the Alabama Sex Offender Act infringes
significantly on the lives of sex offenders living in the state, 91 and
thereby demonstrates the problem with the massive amount of
discretionary power provided by the Walsh Act.92 The Walsh Act
lacks provisions regarding reporting requirements and electronic
87
88
89
90
91
92

See generally Vt. Stat. Ann. tit. 13 (2009).
See HUMAN RIGHTS WATCH, supra note 37.
See id.
See Vt. Stat. Ann. tit. 13, § 5411 (2009).
See generally AL ST § 15-20A-3.
See generally 42 U.S.C.A. § 16901(West 2006).

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monitoring.93 The Alabama Sex Offender Act states that the purpose
of the legislation is public safety, but it fails to provide evidence to
show that electronic monitoring or rigid reporting requirements aid
the goal of public safety.94 As a result, the State’s ability to implement
strict reporting requirements and monitor a private citizen’s
movements at all times is a strong curtailment of sex offender’s
privacy without proper justification.
D. The Effectiveness of Current Sex Offender Laws
1. The Effectiveness of Notification Laws
Several studies have been conducted on the effectiveness of
registration and community notification laws. One study examined
the effect of notification laws on deterrence by examining data from
fifteen states over a period of ten years.95 The study concluded that
an average-sized sex offender registry reduces crime by thirteen
percent, with the reduction in crime increasing with the size of the
registry.96 A second study found that public notification laws increase
recidivism rates of offenders.97 The study hypothesized that once sexoffender information becomes public the psychological, social, and
financial costs of the information make a crime-free lifestyle less
desirable for the offender.98
A comprehensive analysis of sex offenders in New Jersey
determined that the state’s largest decline in sexual offenses occurred
before the passage of registration and notification laws.99 Further, the

See generally id.
See generally AL ST § 15-20A-2 (2006).
95 See J.J. Prescott & Jonah E. Rockoff, Do Sex Offender Registration and
Notification Laws Affect Criminal Behavior?, 1 J.L. ECON 54, 15 (2008).
96 See id.
97 See id.
98 See id.
99 See Kristen Zgoba & Karen Bachar, Sex Offender Registration and
Notification: Limited Effects in New Jersey, NAT’L INST. JUST. (2009),
https://www.ncjrs.gov/pdffiles1/nij/225402.pdf.
93
94

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study concluded that notification laws had no effect in reducing the
number of sexual offenses or the number of victims.100
2. The Effectiveness of Civil Commitment
Currently, there have been no studies conducted to determine
the effectiveness of civil commitment in reducing recidivism. 101 One
state attempted to reduce the number of offenders held in civil
commitment facilities by relaxing the standards for discharge. 102
None of the offenders released committed a new sexual offense. 103
Yet, subsequent media scrutiny caused the legislature to backtrack by
strengthening its release standards once again.104
IV. UNITED KINGDOM SEX OFFENDER LEGISLATION
The United Kingdom first adopted sex offender registration
with the Sex Offender Act of 1997 (“1997 Act”).105 Although the
1997 Act requires sex offenders to provide certain information upon
release, it does not require as much information as the United States’
legislation.106 Additionally, the 1997 Act does not allow public access
to sex offender data.107 In fact, European courts have consistently
held that sex offender registration data is not to be made public
domain.108 The Sexual Offences Act of 2003 replaced the 1997 Act,
with more definitive language.109

See id.
See Hollida Wakefield, The Vilification of Sex Offenders: Do Laws Targeting
Sex Offenders Increase Recidivism and Sexual Violence?, 1 J. OF SEXUAL OFFENDER CIV.
COMMITMENT: SCI. AND THE L. 141, 147 (2006).
102 See id.
103 See id.
104 See id.
105 See Sex Offences Act, 1997, c. 51 (U.K.); Sexual Offenses Act, 2003, c.
42 (U.K.)(the United Kingdom adopted the Sexual Offences Act of 2003 which
replaced the Sex Offender Act of 1997 without significantly altering the sex
offender registration requirements from the original act).
106 See id.
107 See Dugan, supra note 3, at 631.
108 See id.
109 See Sexual Offences Act, 2003, c. 42 (U.K.).
100
101

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Similar to the United States, a highly publicized crime
involving a child created political pressure in the United Kingdom to
ensure public safety.110 However, the United Kingdom refused to
create a system of absolute public notification as the United States
implemented.111 Rather, in 2000, the United Kingdom added the
Child Sex Offender Disclosure Scheme (“Sarah’s Law”), which
allowed victims and their families to be informed about specific
perpetrators.112 The newest version of Sarah’s Law, adopted in 2009,
is even more permissive, allowing parents to request the sex offender
status of an individual who has regular, unsupervised contact with
their children.113 The provision applies only if the sex offender was
incarcerated in excess of one year.114
Even though Sarah’s Law does not allow the general public to
access sex offender information, there is an obvious potential for an
individual’s sex offender status to spread throughout a community. 115
The new law also has the attendant risk of causing sex offenders to
resist compliance with registration requirements.116 The widespread
dissemination of sex offender information is supported by the large
number of people requesting sex offender records. Statistics

See id. at 617.
See Autumn Long, Sex Offender Laws of the United Kingdom and the United
States: Flawed Systems and Needed Reforms, 18 TRANSNAT'L. L. & CONTEMP. PROBS.
145, 159 (2009).
112 See id.
113 See Press Release, Home Office, National Rollout of Scheme to
Protect Children (Aug 6, 2010), http://www.homeoffice.gov.uk/mediacentre/press-releases/national-rollout-scheme-protect
(official
government
statement explaining that Sarah’s Law will help protect children from sexual
offences by allowing parents to access the information about potentially dangerous
individuals).
114 See Long, supra note 111, at 159.
115 See Stephen Wright, Sarah’s Law to go Nationwide: Finally, Parents Win
Access to Police Intelligence on ‘Suspects’ in Contact with their Children, DAILY MAIL (Jan.
25,
2010),
http://www.dailymail.co.uk/news/article-1245680/Sarahs-Lawallowing-parents-carry-sex-offender-checks-rolled-out.html.
116 See Daniel Chadwick, Sarah’s Law, INSIDE TIME (May 2007),
http://www.insidetime.org/articleview.asp?a=24.
110
111

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regarding a pilot version of Sarah’s Law indicated that one in fifteen
people requested information about potential sex offenders.117
Restrictions on public notification in the United Kingdom
may be further eroded with the government’s proposal of Clare’s
Law.118 This new law would provide a mechanism for individuals to
inquire about an intimate partner’s history of domestic violence. 119
Currently, it is unclear whether the government plans to model the
law after Sarah’s Law.120
A. The Proper Balance between Sex Offender Rights and Public
Safety
The United Kingdom’s method of sex offender registration
and community notification is a more reasonable approach. Like the
United States, the United Kingdom’s legislature had to deal with the
public fear emanating from a high profile crime. 121 Rather than
succumbing to public sentiment, the adoption of the 1997 Act
demonstrated dedication to protecting the public while still
maintaining the privacy of sex offenders. The legislation remains
focused on public safety because sex offender records are provided
to the police. Sex offender information should lie solely in the hands
of police for two reasons. First, when citizens are given access to
public information there is always the possibility of vigilantism.
Second, the responsibility of monitoring dangerous situations should
be left to officials who are trained to deal with offenders rather than
defenseless citizens.

See Mark Hughes, Sarah’s Law to be Rolled Out Nationally, THE
INDEPENDENT, Mar. 3, 2010, at 16 (the pilot program of Sarah’s law was originally
initiated in four cities).
118 See Press Release, HOME OFFICE, Consultation of ‘Clare’s Law’
Launched (Oct. 25, 2011), available at
https://www.gov.uk/government/news/consultation-on-clares-law-launched.
119 See id.
120 See Lucy Reed, Why Clare’s Law Won’t Prevent Domestic Violence, THE
GUARDIAN (Jul. 22, 2011), http://www.guardian.co.uk/society/2011/jul/22/whyclares-law-wont-prevent-domestic-violence.
121 See supra note 3, at 617.
117

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Unfortunately, the United Kingdom appears to be veering
away from its original stance. The adoption of Sarah’s Law and the
proposal of Clare’s Law are a disturbing trend in the United
Kingdom. Both laws indicate an erosion of the original privacy
protections afforded to sex offenders. If the trend continues, the
United Kingdom’s system may start to look more like the United
States’ model.
V. CASE LAW DEVELOPMENT
A. Sex Offender Registration and Disclosure
1. United Kingdom
In 2010, the Supreme Court of the United Kingdom laid
down a significant decision regarding the rights of sex offenders. The
court decided R v. Secretary of State for the Home Department based on
Article 8 of the ECHR.122 In the case, two sex offenders, who were
subject to lifetime registration requirements, appealed to the Supreme
Court arguing that the Sexual Offences Act of 2003 violated their
right to privacy under Article 8 of the ECHR. They argued that the
violation occurred because there was no mechanism within the
statute for the courts to review lifetime registration on a case-by-case
basis.123
The Court reasoned that the government’s goal was
unmistakably legitimate and that deterrence of sexually related crimes
was of “great social value.”124 However, the court focused the
discussion on the proportionality of subjecting individuals to
notification requirements for life without the ability to obtain judicial
review.125 The court, using a balancing analysis, decided in favor of
protecting the victims due to the serious impact of sexual offenses;

See R and Thompson v. Secretary of State for the Home Department,
[2010] UKSC 17, [2011] 1 A.C. 331 (appeal taken from Eng.).
123 See id. at 339.
124 See id. at 342.
125 See id.
122

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yet, the Court also acknowledged that the scheme must not effect
additional punishment on the offender.126
Even though the protection of victims was its primary
concern, the Court still reasoned that lifetime registration
requirements for sex offenders, without the ability to appeal,
interfered with privacy rights pursuant to ECHR Article 8.127 The
registration requirements alone were acceptable to the court because
the interference was directed at the “prevention or crime and the
protection of rights and freedoms of others.”128 The court found that
the problem was the deprivation of judicial review when an offender
was subject to lifetime registration.129 The court found an interference
with privacy rights because the registration information had the
potential to reach third parties.130 The court determined that the risk
associated with the likely dissemination of sex offender information
gave offenders subject to registration a substantial interest in
petitioning removal from the list.131
The decision in R v. Secretary of State for the Home Department
was controversial in the United Kingdom, and many powerful figures
in the government disagreed with the ruling. The Prime Minister
expressed his disgust, remarking that the decision “seems to fly
completely in the face of common sense.”132 Home Secretary,
Theresa May, publicly announced that the Government would make
“minimal changes” and that the standards for obtaining an appeal
would be set as “high as possible.”133 The strong government reaction

See id.
See R and Thompson v. Secretary of State for the Home Department,
[2010] UKSC 17, [2011] 1 A.C. 331(appeal taken from Eng.).
128 Id. at 348.
129 See id. at 353.
130 See id. at 348-49.
131 See id.
132 See generally Sophie Lockley, The Supervision of Sex Offenders in the
Community – At What Cost?, INTERNET J. OF CRIMINOLOGY,
http://www.internetjournalofcriminology.com/Lockley_The_Supervision_of_Sex_
Offenders_in_the_Community_IJC_Aug_2011.pdf.
133 See
Sex Offender Registration Appeals to Go Ahead, BRITISH
BROADCASTING COMPANY (Feb 16, 2011), http://www.bbc.co.uk/news/uk12476979 (the United Kingdom’s sex offender register is not a centrally held
126
127

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demonstrates that the tension between fear of sexual predators and
the civil rights of sex offenders is not a phenomenon unique to the
United States.
In the same year, a United Kingdom Court of Appeals
considered the disclosure of sex offender information under Article 8
of the ECHR in H and L v. A City Council.134 In that case, a man was
convicted of indecent assault of a seven year old boy while he had a
pending trial for a similar offense.135 A local authority determined that
his conviction and pending trial would be communicated to several
organizations with which he had contact, that the public university
would discontinue employing his company, and that he would be
asked to leave several community committees of which he was a
part.136 The court reasoned that the need for disclosure must be
determined on a case-by-case basis.137 In this instance, a blanket
disclosure to several organizations violated the sex offender’s Article
8 privacy rights.138
2. The United Kingdom’s Balanced Approach
The two decisions discussed above are an important step in
sex offenders’ rights. The cases demonstrate the Court’s view that
protecting sex offenders’ rights does not necessarily diminish
community safety. The decision in R v. Secretary of State for the Home
Department does not reduce safety within the community because it
does not encourage the automatic removal of sex offenders from the
registry.139 Rather, the decision simply finds that sex offenders must
be able to present the reasons why they believe that they are no
longer a danger to the community.140 Courts are charged with trust
and discretion to make decisions on very important issues in many
database of sex offender information, but rather a notification system used to
update the police).
134 H and L v A City Council, [2011] EWCA (Civ) 403, (Eng.)
135 See id. at 4.
136 See id. at 7.
137 See id. at 67.
138 See id. at 29.
139 See R and Thompson v. Secretary of State for the Home Department,
[2010] UKSC 17, [2011] 1 A.C. 331, 348-49 (appeal taken from Eng.).
140 Id. at 342.

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other areas of law. There should be the same level of confidence in
the court to make determinations regarding a sex offender’s
registration status.
H and L v. A City Council follows a similar trend, properly
giving courts discretionary power to determine the rights of sex
offenders on a case-by-case basis.141
Regrettably, the United Kingdom’s legislature appears to be
moving in the opposite direction, based on its passing and proposing
legislation that allows for more community access to sex offender
information.142 The split between the courts and the legislature can
likely be explained by the fact that legislative officials are elected into
office. A legislative action will often be significantly influenced by
public fears and desires. If public perceptions regarding sex offenders
remain the same, it is very unlikely that the legislature would adopt a
law protecting the privacy rights of sex offenders. The result of this
public influence is that the burden of protecting the privacy rights of
unpopular groups, like sex offenders, will frequently fall to the courts.
3. United States
The Supreme Court of the United States has affirmed the
constitutionality of sex offender registration and community
notification.143 In Connecticut Department of Public Safety v. Doe,
Connecticut’s public disclosure of the state’s sex offender registry
was challenged on procedural due process grounds.144 Connecticut
state law made a sex offender’s name, address, photograph, and
description of the sexual offence available to the public. 145
Respondent argued that his Fourteenth Amendment rights were
violated because he was not provided a hearing to determine his

See H and L v. A City Council, [2011] EWCA (Civ) 403, 67 (Eng.).
See Press Release, Home Office, National Rollout of Scheme to
Protect Children (Aug 6, 2010), available at http://www.homeoffice.gov.uk/mediacentre/press-releases/national-rollout-scheme-protect.
143 See generally Connecticut Dept. of Pub. Safety v. Doe, 538 U.S. 1
(2003).
144 See id. at 4.
145 See id.
141
142

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current level of dangerousness.146 Respondent claimed that the liberty
interest implicated by the Fourteenth Amendment was his
“reputation” and his “status under state law.”147
The Supreme Court determined that respondent’s claim was
meritless because the statutory scheme did not require a showing that
the offender was currently dangerous.148 In essence, respondent had
no claim under the Fourteenth Amendment because the statute did
not provide for a hearing as required process.149 The law only
required a conviction for an offender to be placed on the public
registry.150 As a result, the court determined that the claim was not
relevant to the statutory scheme.151
4. Privacy Concerns Under the Walsh Act
Importantly, the court noted that it decided Connecticut
Department of Safety on procedural due process grounds, and explicitly
stated that it held no opinion on whether the state law violated
substantive due process rights.152 Accordingly, the decision left room
for further substantive law challenges to be brought before the court.
At the time of this publication, no further due process challenges on
the Walsh Act’s community notification scheme have been granted
certiorari before the Supreme Court.153 However, the successful
privacy challenge against the disclosure of sex offender information
in the United Kingdom shows that there is a strong argument to be
made that public notification laws are a violation of privacy rights. 154
The United States has not extended a fundamental right of
privacy to sex offenders. However, there is a possibility that the
See id.
Id. at 5-6.
148 See Connecticut Dept. of Pub. Safety v. Doe, 538 U.S. 1, 8 (2003).
149 See id.
150 See id. at 7.
151 See id. at 8.
152 See id. at 7-8.
153 See generally Smith v. Doe, 538 U.S. 84, 89-118 (2003) (confirming the
constitutionality of community notification laws under the Walsh Act based on an
Ex Post Facto challenge).
154 See H and L v. A City Council, [2011] EWCA (Civ) 403, 67 (Eng.).
146
147

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Supreme Court will consider privacy rights if a substantive claim
regarding sex offender registration and community notification is
brought before the Court. If the Court determines that sex offenders
have a fundamental right to privacy, the government cannot infringe
on the privacy right without a substantial interest which is narrowly
tailored to meet the goal provided.155 There is little doubt that
community safety is a substantial government interest. In the case of
a substantive due process claim, the question before the court will
likely be whether registration and community notification are
sufficiently tailored to meet the goal of public safety. In such a case,
the burden will be on the government to show that community
notification actually aids in the goal of keeping the public safe.
B. Civil Commitment
Civil Commitment of sexual offenders is the involuntary
commitment of offenders beyond their prison sentence based on the
concern that they are likely to reoffend.156 The proceeding is
considered civil, so it lacks many of the constitutional protections
provided during criminal proceedings.157 Generally, civil commitment
actions will not provide protections such as the right to remain silent,
jury trials, procedural rights, the guarantee of a speedy process, and
bail.158 The Supreme Court of the United States has considered the
constitutionality of statutes allowing for the civil commitment of sex
offenders in two cases.159
The Supreme Court first considered sex offender civil
commitment in Kansas v. Hendricks, which involved a defendant who
was convicted for taking indecent liberties with two thirteen-year-old

See generally Griswold v. Connecticut, 381 U.S. 479 (1965)(established
the fundamental right to privacy under the United States Constitution by
invalidating a statute that banned contraceptive distribution to married couples).
156 See BLACK’S LAW DICTIONARY 279 (9th ed. 2009).
157 See Eric S. Janus & Brad Bolin, An End-Game for Sexually Violent
Predator Laws: As-Applied Invalidation, 6 OHIO ST. J. CRIM. L. 25, 27 (2008).
158 See Corey Rayburn Yung, Sex Offender Exceptionalism and Preventive
Detention, 101 J. CRIM. L. & CRIMINOLOGY 969, 979 (2011).
159 See generally U.S. v. Comstock, 130 S. Ct. 1949 (2010); see also Kansas v.
Hendricks, 521 U.S. 346 (1997).
155

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boys.160 After the defendant’s conviction, Kansas enacted the Sexually
Violent Predator Act, creating procedures to civilly commit an
individual beyond his or her prison sentence if the individual was
deemed likely to commit “predatory acts of sexual violence.” 161
Shortly before the defendant’s release he was civilly committed
pursuant to the Sexually Violent Predator’s Act.162 The defendant
appealed his civil commitment claiming a violation of due process.163
The Supreme Court held that the civil commitment statute
did not violate substantive due process. The decision noted an
important restriction on a citizen’s right to liberty: “although freedom
from physical restraint has always been at the core of the liberty
protected by Due Process Clause from arbitrary governmental action,
that liberty interest is not absolute.”164 The Court reasoned that
involuntary civil commitment does not violate substantive due
process if the commitment follows “proper procedures” and
“evidentiary standards.”165 The Kansas statute required a previous
conviction, finding of “future dangerousness”, and a “mental
abnormality” or “personality disorder” that made a person unable to
control the unwanted behavior.166 Because the statute limited civil
confinement to a sufficiently narrow class of people, only those who
were unable to control their dangerous behavior, the Court ruled that
the statute did not infringe on constitutionally protected liberties.167
The Court also examined the significant procedural
safeguards found in the Kansas statute.168 The procedures included:
(1) notification to the prosecutor that a person might have met the
statutory requirements sixty days before the inmate’s release; (2)
forty-five days for the prosecutor to decide whether to file a petition;
(3) a determination by a court that probable cause existed to support
that a person was a “sexually violent predator;” (4) professional
160
161
162
163
164
165
166
167
168

See Hendricks, 521 U.S. at 353.
Id. at 350.
See id. at 355-56.
See id. at 353.
See id. at 356.
See Hendricks, 521 U.S. at 357.
See id. at 358.
See id.
See id. at 352-56.

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evaluation; and (5) a trial to determine whether the individual was,
beyond a reasonable doubt, a “sexually violent predator,” with the
state carrying the burden of proof.169
Federal civil commitment for sex offenders is addressed in
the Walsh Act.170 Under the Act, the Attorney General, or an
individual authorized by the Attorney General, has the ability to
identify an individual as a “sexually dangerous person.” 171 Upon this
classification, the clerk in the jurisdiction where the individual is
confined will receive a certificate and the court will order a hearing to
determine if an individual is sexually dangerous.172 The court then has
the discretion to hold an individual in civil commitment, beyond his
prison term, if the individual: 1) has “engaged or attempted to engage
in sexually violent conduct or child molestation”; 2) “suffers from a
serious mental illness, abnormality or disorder”; and 3) “as a result of
that mental illness, abnormality, or disorder is sexually dangerous to
others.”173 The evidentiary standard to civilly commit an individual
under the Walsh Act is proof by clear and convincing evidence.174
In 2010, the Supreme Court considered the constitutionality
of a federal civil commitment statute in United States v. Comstock.175
The issue before the Court was whether the Walsh Act was an
unconstitutional expansion of congressional powers under Article
I.176 The Court held that civil commitment section of the Walsh Act
was constitutional under the Necessary and Proper Clause, Art. I, § 8,
cl. 18.177 The Necessary and Proper Clause permits Congress to
“enact laws governing prisons and prisoners” as long as Congress is
acting within their enumerated powers.178 As a result of the Court’s

169
170
171
172
173
174
175
176
177
178

Id. at 353-54.
See Generally 42 U.S.C.S. § 16911(West 2006).
See 18 U.S.C.A. § 4248 (West 2006).
Id.
See id. § 4248.
See id.
See U.S. v. Comstock, 130 S. Ct. 1954.
See id. at 1955.
See id. at 1970.
U.S. CONST. art. I, § 8, cl. 18.

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focus on the broad scope of federal power, Comstock is often cited for
issues of federalism rather than civil rights issues of sex offenders.179
Unlike the Court in Hendricks, the Comstock Court did not
consider the procedural due process claim.180 Consequently, the
Comstock Court did not spend very much time comparing the federal
statute with the state statute found in Hendricks. From a procedural
standpoint, civil commitment under the Walsh Act is distinguishable
from the state statute in Hendricks. Under the federal statute, the
Attorney General’s certification that an individual is sexually
dangerous is sufficient to begin commitment proceedings, rather than
the factors provided under the statute in Hendricks.181 Further, the
burden of proof in the statute in Hendricks was beyond a reasonable
doubt, while the burden of proof in the Walsh Act was the clear and
convincing evidence standard.182
1. Do Sexually Violent Predators Need Procedural Protections?
The relatively lengthy evidentiary and procedural standards
set forth by the statute in Hendricks show an attempt by the state
legislature to avoid arbitrary decision-making. Because civil
commitment can be an indefinite restriction of physical freedom,
procedural safeguards are vastly important to ensure that the decision
to incapacitate an individual is necessary. In contrast, the lack of
certain protections under the Walsh Act should be cause for alarm.
The “clear and convincing evidence” standard is a lower burden of
proof than the “beyond a reasonable doubt” standard used in
criminal prosecutions.183 This lower standard is troubling because the
statute allows individuals to be detained in civil commitment
indefinitely.184

179 See Jeffrey Toobin, Without a Paddle; Can Stephen Breyer Save the Obama
Agenda in the Supreme Court?, NEW YORKER, Sept. 27, 2010, at 34, 40.
180 See generally U.S. v. Comstock, 130 S. Ct. 130 S. Ct. 1949 (2010).
181 See 18 U.S.C. § 4248 (2006).
182 See Kansas v. Hendricks, 521 U.S. at 353-54; 18 U.S.C.A. § 4248(d)
(West 2006).
183 See 18 U.S.C.A. § 4248 (West 2006).
184 See id.

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The Walsh Act does provide a mechanism for review, which
includes both continuing psychiatric care and judicial review every six
months.185 The availability of review may provide a false sense of
security for individuals detained in civil commitment.186 Studies have
shown that offenders who enter civil commitment generally will
never be released.187
2. The United Kingdom and Civil Commitment
The United Kingdom’s Sexual Offenses Act does not contain
a section permitting the civil commitment of sex offenders.188
However, the United Kingdom does have a general process for
detaining certain individuals.189 The Mental Health Act of 1983 (“The
Mental Health Act”) was enacted “with respect to the reception, care,
and treatment of mentally disordered patients, the management of
their property, and other related matters.”190 Section 63 of the Act
allows for the compulsory treatment of a patient suffering from a
mental disorder.191 There is no specific provision for the compulsory
treatment of mentally ill inmates or sexually violent predators.192 The
act applies to patients generally, rather than targeting a specific group
of potentially dangerous individuals.193
3. Reconsidering Procedural Safeguards for Civil Commitment
Civil commitment can, in some ways, be more restrictive than
incarceration because of the possibility of an indefinite term.194 The
United Kingdom’s lack of a civil commitment provision in its sex
offender legislation shows that the practice specifically aimed at
See United States v. Comstock, 130 S. Ct. at 1955.
See 18 U.S.C. § 4247 (2006).
187 See generally Wakefield, supra note 101 (describing the government’s
doctrinal shift from punishing crimes that have already been committed to
categorizing individuals who pose a potential threat of committing future crimes).
188 See Sexual Offenses Act, 2003, c. 42 (U.K.).
189 See The Mental Health Act, 1893, c. 4, § 63 (U.K.).
190 Id. c. 1, § 1.
191 See id. c. 4, § 63.
192 See generally The Mental Health Act, 1893 (U.K.).
193 Id.
194 See Wakefield, supra note 101, at 146.
185
186

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sexual offenders may not be a necessity. 195 If the United States
continues with the practice of civil commitment of a sex offender,
strong procedural safeguards must be in place. One potential model
is the criminal trial. A civil commitment proceeding modeled after a
criminal trial would use the “beyond a reasonable double standard.”
4. Studies Support Reform
The studies performed in the United States confirm that the
United Kingdom has taken a superior approach in creating sex
offender laws.196 Community notification laws have the opposite
effect of their intended result, while registration laws only become
problematic when the registry grows to be too large to manage. The
detrimental effect of notification laws makes sense because ordinary
citizens have no way of using the knowledge other than ostracizing
the offender. The negative results stemming from community
notification indicate that the goal of public safety is not served by
these laws.
The lack of any significant research on the civil commitment
of sex offenders is problematic. The process denies an individual the
ability to freely live his life after he has finished paying his debt to
society. In order for such a pervasive restriction on freedom to be
worthwhile, there must be significant benefits. Without proper
research there is no way to determine whether the indefinite
commitment of certain sex offenders is benefiting the public in any
real way.
VI. UNCONVENTIONAL APPROACHES
Several unconventional sex offender programs have been
established in some states and the United Kingdom. One such
alternative program is Circles of Support and Accountability

195
196

See Sexual Offenses Act, 2003, c. 42 (U.K).
See Zgoba & Bachar, supra note 99; see also Prescott & Rockoof, supra

note 95.

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(“COSA”).197 COSA involves a group of volunteers who form a
“circle” around an offender, who is known as the “core member.”
The “circle” essentially provides consistent support for the sex
offender’s reintegration into the community.198 The group serves duel
functions: 1) providing a “supportive social network” to the core
member; and 2) requiring that the offender take accountability for his
future risk to society.199
In the United States, several states have implemented a
program known as Special Sex Offender Sentencing Alternative
(“SSOSA”).200 SSOSA is offered to certain offenders in lieu of a
lengthy jail sentence.201 Generally, a SSOSA will require a shorter jail
sentence followed by treatment and supervision. 202 After analyzing
five years of data, the Washington Institute for Public Policy found
that the recidivism rates for sex offenders granted SSOSA were lower
than offenders not granted SSOSA.203
VII. CONCLUSION AND RECOMMENDATIONS
Public fear and outrage have caused both the United States
and the United Kingdom to take action to control the perceived
danger presented by sex offenders.204 The United Kingdom’s
legislation has attempted to balance both the interests of sex
See Circles of Support and Accountability, FRESNO PACIFIC UNIVERSITY,
http://peace.fresno.edu/cosa/ (last visited Jan. 18, 2011); see also CIRCLES UK,
http://www.circles-uk.org.uk/ (last visited Jan. 18, 2011).
198 See Circles of Support and Accountability, FRESNO PACIFIC UNIVERSITY,
http://peace.fresno.edu/cosa/ (last visited Jan. 18, 2011); see also CIRCLES UK,
http://www.circles-uk.org.uk/ (last visited Jan. 18, 2011).
199 See CIRCLES UK, http://www.circles-uk.org.uk/ (last visited Jan. 18,
2011)(explaining that COSA is a community based approach to solving the
problem of sex offender recidivism where the community acts as a unit to aid the
offender).
200 See Wash. Inst. for Pub. Pol., Sex Offender Sentencing in Washington State:
Special
Sex
Offender
Sentencing
Alternative
Trends
(Jan.
2006),
http://www.wsipp.wa.gov/rptfiles/06-01-1205.pdf.
201 See id.
202 See id.
203 See id.
204 See Public Opinion and the Criminal Justice System: Building Support for Sex
Offender Management Programs, supra note 45.
197

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offenders and the interests of the public. In contrast, the legislation
promulgated in the United States appears to be based solely on
disputed views of the dangerousness of sex offenders in the
community.205
Several studies have called into question the effectiveness and
economic burden of registration and community notification. 206 The
dearth of positive results from community notification gives more
credence to the possibility that community notification is an
inadequate form of protection and possibly unconstitutional. If the
Supreme Court adopted a fundamental rights analysis, then there is a
significant argument that community notification is not narrowly
tailored to the goal of keeping the public safe. Further, the complete
lack of research regarding the civil commitment of sexually violent
predators is problematic considering the lack of adequate procedural
protections and the low burden of proof in the federal statute.
These considerations tip the scale toward reforming sex
offender laws in the United States to something more like the United
Kingdom’s approach. In order to effectuate a positive change, three
adjustments need to be made. First, the United States should prohibit
community notification. However, registration laws have shown
some benefit, so continuing to provide sex offender information to
the police should persist. Second, the United States should reexamine the civil commitment provisions in the Walsh Act. Any
additions to the Act should ensure that strict procedural standards are
in place and create a higher burden proof. Finally, the United States
should include some unconventional approaches to future sexoffender legislation. Including these provisions will be beneficial in
helping sex offenders reintegrate into society. Without implementing
these—or other similar—changes, the United States will continue on
the path of blatantly disregarding the rights of many of its citizens.

205
206

See Radford, supra note 3.
See WASH. INST. FOR PUB. POL., supra note 43.

379