BY THE NUMBERS

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Hodges (2015) granted marriage equality for same-sex couples, but queer and trans people face a number of challenges in
BY THE NUMBERS A SEX OFFENSES PRIMER FOR QUEER & TRANS FOLK Obergefell v. Hodges (2015) granted marriage equality for same-sex couples, but queer and trans people face a number of challenges in the struggle for full justice. Our ability to freely express our gender and sexual identities is still under attack across the country. A study by the Williams Institute uncovered that queer and trans people are more likely to be incarcerated for sex crimes rather than crimes related to property, drugs, or supervision violations. This means that a disproportionate number of queer and trans people are threatened with a lifetime of stigmatization, prejudice, and inequality through sex offender registration and notification (SORN) policies. These policies to monitor and track people have proven to be harmful not only for the people listed, but also for their loved ones and society as a whole. Publicizing each registrant’s photo, home and employment address, conviction record, and other identifying information has exposed registrants and their loved ones to homelessness, unemployment, harassment, public humiliation, and vigilante justice with few options for release from registration obligations. Evidence indicates registries are ineffective at addressing sexual violence and child sexual abuse, and they can deepen inequalities based on race, class, gender, and sexuality. If we are to achieve full equality, we must acknowledge the uncomfortable realities of homo– and transphobia in the criminal legal system, especially the policing of sexuality. Strides in equal protections for queer and trans people must be applauded, but if queer sex is illegal, then what are we fighting for?

www.sexlawandpolicy.org [email protected] | 202.750.0475

The inaccurate “frightening and high” rate of same crime re-offense is often associated with registrants. The source of this statistic is a 1986 Psychology Today article written by a treatment provider, not a scientist. The article was not scientifically validated, but has been used in numerous SCOTUS decisions to uphold punishments. Actual rates of same crime re-offense hover around 3.5%, the lowest of any offense class.1

states have conducted cruising stings since 2007. Police use disarmingly simple tactics to entrap gay men, like wearing Speedos & suggestive T-shirts. Other men are stung on hook-up sites, like Grindr & A4A. Many of these men are labeled “sex offender.” A 10-item tool used to assess perceived risk of sexual reoffense. This tool can’t and doesn’t measure individual risk of re-offense. It ranks an individual within a group who share similar characteristics. For example, a single, young male who commits a sex offense against another male is classified as a moderatehigh risk of re-offense. It has been used to indefinitely detain gay men and increase the frequency and duration of sex offender registration.

California enacts the first state sex offender registry as a tool to criminalize queer sexuality.

Every state has a publicly accessible registry of people convicted for sex crimes. How long and how often someone must register; what personal identifying information is registered; and timeframes for reporting registerable information varies widely state to state. Many states have lifetime registration requirements, but others may require 10 years of registration or more. Some states register only home addresses, but others may require employment addresses and any places a registrant attends school. There may be a 3-day timeframe to update registration information in one state, but 10 business days in another. Congress passed the Adam Walsh Act (AWA) to set national minimum standards for SORN laws. The Sex Offender Registration and Notification Act (SORNA), Title I of the AWA, replaced the prior federal SORN laws –the Wetterling Act and Megan’s Law.

states can require registration as a “sex offender” following conviction under their HIV criminal laws.4 states are Adam Walsh Act compliant, meaning they meet expectations for tracking and monitoring their registrants at the state and federal level.

Gay teens engaging in consensual sexual activity are more likely to have sex offender registration recommended as punishment than their straight peers.2

Lesbian and bi women are 2x more likely, and gay and bi men 4x more likely to be convicted for a violent sex offense than any other type of crime.3 Two types of laws, collectively referred to as sex offender registration and notification, expanded in the 1990’s. The Wetterling Act (1994) directed states to create law enforcement only registries with identifying information about people convicted for certain sex crimes. Megan’s Law (1996) began requiring states to provide public notification of the identities and addresses of people on each registry created in the Wetterling Act.

SELECTED RESOURCES 1.

Ellman, Ira M., and Tara Ellman. "Frightening and High": The Supreme Court's Crucial Mistake about Sex Crime Statistics. Constitutional Commentary 30, no. 3 (2015): 495-508.

2.

Salerno, Jessica, Mary S. Murphy, and Bette L. Bottoms. Give the Kid a Break—But Only if He’s Straight: Retributive Motives Drive Biases Against Gay Youth in Ambiguous Punishment Contexts. Psychology, Public Policy, and Law 20, no. 4 (2014): 398-410.

3.

Meyer, Ilan H., Andrew R. Flores, Lara Stemple, Adam P. Romero, Bianca D. M. Wilson, and Jody L. Herman. Incarceration Rates and Traits of Sexual Minorities in the United States: National Inmate Survey, 2011–2012. AJPH Transgender Health 107, no. 2 (2017): 234240.

4.

Center for HIV Law & Policy. HIV Criminalization in the United States: A Sourcebook on State and Federal HIV Criminal Law and Practice, updated 3rd ed. New York: Center for HIV Law & Policy, 2017.

Extein, Andrew and David Booth. Is Queer Sex Legal? Available online: https://goo.gl/R7buKv D’Entremont, Jim. The Devil in Gay, Inc. Available online: https://goo.gl/vS7n9P Halperin, David and Trevor Hoppe. The War on Sex, Durham, NC: Duke University Press, 2017 Hamilton-Smith, Guy. Sex Registries as Modern-Day Witch Pyres. Available online: https://goo.gl/iZDPeL Meiners, Erica. Worst of the Worst: Queer Investments in Challenging Sex Offender Registries. Upping the Anti, 13 (2011). Nair, Yasmin. Bars for Life. Available online: https://goo.gl/cVi6DK Rosen, David. The Sex Offender: The 21st Century Witch. Available online: https://goo.gl/65zWxj Yung, Corey R. “The Emerging Criminal War on Sex Offenders.” Harvard Civil Rights: Civil Liberties Law Review 45, (2010): 435-481.