Should Minors be placed on Sexual Predator Watch Lists?

May 1, 2010 by Joel Yacoob

I.                                               Background

              In 1994, Congress enacted the initial piece of federal sex offender legislation, the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (the “Wetterling Act”), which requires paroled and incarcerated sex offenders to register with local authorities.[1]  At the time, twenty-four states had sex offender registration statutes, but state authorities could not effectively monitor the inter and intra-state movement of offenders.[2]  By requiring sex offenders to register whenever they establish a residence in a new state, the Wetterling Act has promoted coordination between state authorities and has created a mechanism for monitoring offenders.[3]

              Rather than requiring wide dissemination of information about registered offenders, the legislation initially placed public notification at the discretion of law enforcement officials.[4] Following the high profile kidnapping, rape, and murder of seven-year-old Megan Kanka, which garnered national media attention, child safety advocates decried the Wetterling Act’s failure to make community notification mandatory.[5]  Public outrage thus led Congress to amend the Wetterling Act in 1996 and mandate the creation of community notification programs, which required states to adopt sex offender notification statutes, commonly referred to as Megan’s Laws.[6]  The threat of losing ten percent of federal crime-prevention funding coupled with popular support for sex offender registration and community notification laws spurred state legislatures to act quickly.[7]  Within a year of the amendments, each state and the District of Columbia had adopted some form of Megan’s Law.[8]  While registration and notification requirements vary widely from state to state, state legislatures believe these laws safeguard children by providing law enforcement officials and the general public with the tools needed to monitor the movement of registered sex offenders.[9]

Although the shift from discretionary to mandatory community notification was a subtle one, the “one-word change” has brought unforeseen scrutiny to this area of the law.[10]  Over the last fifteen years, subsequent legislation, often the result of public outcry, has substantially broadened the scope of post incarceration sanctions on sex offenders to include residency restrictions and GPS tracking, among other controls.[11]

II.    The Adam Walsh Act: Expanding Controls on Sex


The Adam Walsh Child Protection and Safety Act of 2006 (the “Adam Walsh Act”) is one example of the broadening scope of post-incarceration sanctions.[12]  “[I]n response to the vicious attacks by violent predators against [seventeen] victims,” the Adam Walsh Act expands the Wetterling Act to establish “a comprehensive national system for the registration of [sex] offenders” to protect the public, particularly children, from sex crimes.[13]  The Adam Walsh Act defines and classifies sex offenders within a three-tiered structure and expands the federal registration and notification programs.[14]  Although state sex offender management schemes are analogous to the federal scheme, they are discussed separately below because many states have expanded the definition of sex offender as well as the types of crimes that trigger registration and notification requirements.[15]

Under the Adam Walsh Act, tier I offenders are sex offenders other than tier II or tier III offenders and generally must register for a minimum of fifteen years.[16]  Tier II offenders are those convicted of crimes punishable by more than one year of imprisonment (typically crimes such as sex trafficking, coercion and enticement, and use of a minor for sexual contact).[17]  Generally, tier II offenders must register for a minimum of twenty-five years.[18]  Finally, tier III offenders, who must register for life, include offenders convicted of aggravated sex crimes, sex crimes against minors, non-parental kidnapping, and conspiracy to commit aggravated sex crimes.[19]  While tier III offenders can reduce the required registration period, provided that they maintain a clean record for twenty-five years, only a few states have similar provisions.[20]

Registration requirements under the Adam Walsh Act mandate that offenders register in each jurisdiction where they reside and that they keep their registration current.[21]  Offenders must register within three business days of any change in residence or place of employment.[22]  They are also required to provide their name, Social Security number, address of residence or likely residence, the name and address of the offender’s employer, the name and address of institutions where the offender is or will be a student, the license plate number and vehicle description of any vehicle the offender may drive, and any other information required by the Attorney General.[23]

In addition to these registration requirements, the Act also creates a national sex offender registry database and a national sex offender public website.[24]  Each offender’s information is disseminated through the database to the Attorney General, local law enforcement agencies, school districts, public housing agencies, volunteer organizations, and each jurisdiction where the offender either resides, is employed, or is a student.[25]  The website provides general information to the public about each offender in the national database, including the offender’s name, current photograph, identifying characteristics, and conviction information.[26]  Such information is also available through state-run websites.[27]

State notification statutes are not uniform.[28]  The grouping of juvenile sex offenders with adult sex offenders by forcing them to abide by the registration and notification statutes is the most disturbing of the latest trend in toughening-up sex offender legislation.  Thirty-two states require juveniles to register.[29]  Five states, including Alaska, Louisiana, Kentucky, and Maine, do not address whether or not juveniles are required to register, unless they are adjudicated as adults.[30]  Sixteen states and the District of Columbia are silent on the matter.[31]  New Mexico expressly excluded juveniles from its notification statute until it was amended in 2005 to remove “eighteen years of age or older” following “person” in its definition of “sex offender,” making it one of the 32 states that require juveniles to register.[32]  Clearly, continuity on the registration of adult sexual offenders and predators is far from over.  Whether the problem is bureaucracy or lack of funding, it is clear that the states must come together to address this issue so as to protect children.  However, the issue of mandating juvenile notification across the board without making differentiations based on the context and severity could only serve to exacerbate the existing problems discussed in this paper.

The impetus for the creation of a separate juvenile justice system was the acknowledgment that children are not adults, and as such, do not have the capacity for rational thoughts as adults do.  Moreover, the juvenile justice system was derived to create a structure whereby rehabilitation would be the ultimate objective in devising juvenile punishment, or, as it is referred to in the language of juvenile law, disposition.  Clearly, most if not all people agree with the need for special sensitivity when juveniles are the subject of discussion.  Most may feel an innate understanding that non-adults sometimes make mistakes, and should not be punished for those mistakes in a manner that serves them more harm than good.  But, what would you do if you discovered that a registered sexual offender moved into the residence next door to you? Would your answer be different if you had children or grandchildren?  Would your answer be different depending if the person committed the offence while as a juvenile?  Would you want to know more about the offense or offenses that they committed?  As is often the case when asked to discuss an issue in the abstract, it is easier to put aside our personal bias and fears.  When we have to actually come to terms, or face the possibility that, the decision we make will have an impact on our own lives and rights, our views often change.

The general public has been led to believe that disclosure of sexual offender notification, including information concerning juvenile offenders, will lead to a safer environment.  What has not been explained to the public is that the juvenile confidentiality statutes have long and well-reasoned rationale and those rules currently remain.  Unless the public is willing to discard the premise of juvenile confidentiality in its entirety, only a portion of the information about juvenile sexual offenses would be accessible.[33]  If juvenile confidentiality were extinguished in its entirety, every trifling indiscretion and immature decision made by a child would be available to post-graduate institutions, potential employers and a host of others whose interest in the child’s past may be relevant.  Further, in most states, there are already interagency statutes in place to alert those organizations whose interest in a child’s delinquent conduct is relevant.[34]  It appears that the public’s interest in sexual conduct changes significantly when the offense is committed by a juvenile.

On Easter Sunday in April 2006, in Maine, two convicted sex offenders were tracked down by a vigilante Canadian citizen and killed in their own homes.[35]  Joseph Gray and William Elliot, convicted sexual offenders, were targeted as murder victims as a result of their compliance with Maine’s notification statute.[36]  Both, as required by law, had registered with local authorities.[37]  Mr. Gray was sitting on his living room couch when he was shot and killed.[38]  Mr. Gray, who was fifty-seven years old at the time of his murder, was subject to Maine’s sexual offender registration statute because he was convicted of assaulting and raping a child younger than fourteen-years-old.[39]  The second victim, Mr. Elliott, who was executed when he answered his front door, was twenty-four years old at the time of his murder.[40]  Mr. Elliot was subject to the mandatory notification statute as a result of his conviction for having sexual intercourse, at the age of nineteen, with his then girlfriend, who was two weeks away from turning sixteen.[41]  During the subsequent police pursuit, the shooter, Stephen Marshall, turned his gun on himself.[42]  Due to the death of the shooter, one can only speculate the motivation behind the killings.  However, it is clear that Mr. Marshall obtained the victims’ demographic information, conviction records, and photographs via the Internet from the state’s sex offender registry.[43]  The incidents were severe enough to provoke officials to temporarily remove the online registry.[44]  Mr. Gray and Mr. Elliot were not minors at the respective time of incarceration, but will the next vigilante to take “justice” in his own hands make such a distinction?  This example highlights the fact that statutes that are intended to raise awareness of dangers to children, may, at the same time be putting juvenile offenders, unsympathetic as they may be, at risk of harm if not death.

Most people would agree that Mr. Gray’s crime was much more egregious than that of Mr. Elliot’s.[45]  However, Maine’s sexual offender notification statute, like the sexual offender notification statutes of many other states, does not differentiate between the egregious conduct of dangerous sexual predators and the conduct of individuals who, like the then-teenage Mr. Elliot, are unlikely to pose further risk to the community.  Under Maine’s notification statute, and in the mind of the shooter, both men were treated as if their conduct, and the danger they posed to the community, were equal.

Similarly, in Washington State in 2005, Michael Anthony Mullen impersonated an FBI agent in order to enter the co-residence of three convicted sex offenders.[46]  Once inside, he shot and killed Victor Vazquez and Hank Eisses.[47]  In court, Eve Vazquez, twenty-seven, daughter of decedent Victor Vazquez, stated, “[M]y dad is dead, he’s not supposed to be dead and I’m not ready for him to be dead.”[48]  Eve Vazquez had been the victim of sexual abuse by her father, but had nevertheless been attempting to repair her relationship with him prior to his death.[49]  Some may say good riddance.  Alternatively, if his victim was considering forgiveness, the opinion of the public and the government may be irrelevant.  As demonstrated from the stories highlighted below, an absolute standard disregarding individual circumstances is not adequate for dealing with the spectrum of cases involving sexual offenses, especially those involving juvenile offenders.

In 2000, when Bobby, the son of a prominent political figure and an attorney, was a fifteen-year-old tenth grader, he and his fifteen-year-old “girlfriend” were engaging in “horseplay” in the hallway between classes at their public high school.[50]  A school employee witnessed Bobby’s hand brush against his girlfriend’s breast as the girlfriend stood, facing Bobby, with her back against the lockers.  The school employee, citing her obligation as a mandatory reporter,[51] reported the incident to the school’s resource officer (SRO), an employee of the local sheriff’s office.  The SRO filed an affidavit with his law enforcement agency and the information was forwarded to the local state attorney’s office.[52]  Thereafter, Bobby was charged with a sexual offense: fondling a minor.[53]  The “charge” was eventually reduced to a non-sexual offense and Bobby completed the imposed sanctions, which included an essay on appropriate behavior in school and appropriate touching.[54]  All parties, including the “victim’s” parents, agreed that Bobby had been adequately punished for his misconduct.[55]

In 2006, Bobby, a junior in college with aspirations for a professional career, submitted to a background check as a requirement for a summer job working with disabled children and adults.[56]  The background check revealed the incident described above, Bobby’s arrest for fondling a child and he was automatically excluded from employment.[57]  Ironically, Bobby is lucky; he was not mandated to register as a sexual offender.[58]  In his case, professionals working on his behalf ensured him that the offense was ultimately resolved and would preclude his mandatory registration as a sexual offender.[59]  However, it is unlikely that this will be the last time Bobby is confronted with the information associated with his arrest. The revelation of his conduct, via cyberspace, may forever follow him and negatively impact, limit or destroy his chances of pursuing his chosen career path.

Bobby’s story is one that should give pause.  It highlights the severe ramifications of what may have been an innocuous act between two teenagers.  Had Bobby lived in a state that mandated Juvenile Sexual Offender registration, the consequences would have been greatly amplified.  Surely, his college and employment prospects would have been dimmed.  He would have to carry a scarlet letter of the sorts that would affect him well beyond his youth.  Do we really want more Bobby’s? 

In contrast to Bobby’s story, Genarlow Wilson, a teenager and athlete from Georgia with, received a sentence of ten years for engaging in oral sex with a female of the same age.[60] In 2003, Genarlow was seventeen years old, an honor student, star athlete and homecoming king.[61]  He was convicted of “aggravated child molestation,”[62] a charge that conjures up the image of an adult perpetrating a heinous act upon a small child.  However, the actual facts indicate something quite different. Genarlow had “engaged in oral sex with a fifteen-year-old girl, during a 2003 New Year’s Eve party in Douglas County, Georgia.”[63]  The sexual acts were videotaped and ultimately a jury was led to convict Genarlow as charged.[64]  The age of consent in Georgia is sixteen, and even though Genarlow was only two years older than the girl, neither had the legal authority to consent to the conduct they engaged in that night.[65]  Reportedly, jurors hearing the case felt that they had no choice but to convict Genarlow of the child molestation charge, regardless of whether or not they agreed with the law.[66]  The conviction resulted in a ten-year prison sentence along with the burden that Genarlow was required to register as a sexual offender.[67]   A state legislator who helped passed the law stated that the resulting outcome in the Wilson case was never the purpose of the law.[68]  “The legislative intent was to protect women and children from sexual predators,” said Representative Tyrone Brooks, a Democrat in the Georgia State Assembly.[69]  What is ironic of the situation is that if Wilson had engaged in sexual intercourse with the girl he would have faced only one year in prison and no mandatory registration as a sexual offender.[70]  “At the time, Georgia law stipulated that it was “a misdemeanor for teenagers less than three years apart to have sexual intercourse, but a felony for them to have oral sex.”[71]  “In the 2006 Legislative session, the Georgia General Assembly amended the law, OCGA § 16-6-4, under which Genarlow was convicted.[72]  Unfortunately for Genarlow, the effective date was set for July 1, 2006, and the law specifically mandated that it would not be applied retroactively.[73]  Considering the new legislation and the apparent injustice bestowed upon Genarlow, who by then had been in prison for over two years, a Georgia Superior Court judge invalidated the ten year sentence on June 11, 2007, stating it was a “grave miscarriage of justice.”  Nonetheless, Genarlow remained in prison as prosecutors appealed the decision.[74]  On October 26, 2007, the Supreme Court of Georgia ended the two-year battle for Genarlow Wilson when a 4-3 decision was handed down, releasing Wilson from prison.[75]  The Georgia Supreme Court found the ten-year conviction to be cruel and unusual punishment since it was “grossly out of proportion to the severity of the crime.”[76]  The severity of Genarlow’s sentence could make any man prefer to be a killer or a pedophile, rather than succumb to the punishment of teenage consensual sex.

The release of Genarlow came with its opponents. Georgia Supreme Court Justice Carley wrote in his dissent that the majority employs the “guarantee against cruel and unusual punishment as a guise to extend the applicability of the 2006 amendment to OCGA § 16-6-4 retroactively, notwithstanding that doing so is in direct contravention of the express legislative intent of the General Assembly.”[77]  Regardless of the Supreme Court’s motives, Genarlow will live his life without the stigma of having to register as a sexual offender.  After spending more than two years of his youth in prison, having his personal life and story reported in newspapers and the shame that it brought to himself and his family, Genarlow is in fact lucky to have escaped registration.  Genarlow’s story highlights the tenuous dangers and injustice that minors can face.  Although he did not have to register as a sexual offender, the cost amount of effort taken to avoid such a stigma was enormous.  Justice should not come at such a high price for anyone.

In Michigan, Justin Fawsett, an “A” student at his local community college, had aspirations of going into the computer business.[78]  However, his aspirations were dashed as a result of an incident that had occurred years before when he was a minor and a high school student.  In 2002, Justin, then a high school senior, pled guilty to a charge of “seduction,” a sexual offense, after he had “consensual” intercourse with a fourteen-year-old freshman at Bloomfield Hills Andover High School.[79]  A portion of the plea deal was that Justin’s plea of guilty would allow him to avoid mandatory registration as a sexual offender.[80]  Unfortunately, in February 2003, Justin’s probation officer informed him that his name would be included on the registry due to a “memo issued by the state attorney general that enforces a ruling by the Michigan Court of Appeals.”[81]  The plea deal allowed Justin to remain off the registry if he successfully completed two years of probation.[82]  However, Justin’s exclusion from the sex offender registry was endangered when he violated the terms of his probation agreement.[83]  According to Justin’s father, David, the news that Justin would be required to register as a sexual offender devastated Justin.[84]  David described the stigma that Justin knew he was facing: “I think a lot of people on this list aren’t going to be able to live the kind of life they would have lived otherwise.  They won’t be able to get a really good job, or a good education or a good life.”[85]

On March 19th, Justin Fawcett was found dead of a drug overdose at his home in West Bloomfield Township.[86]  “Whether or not Justin actually would have had a good life and stayed off drugs and things like that, I don’t know,” his father said, “[b]ut I know that this did not help him.”[87]

The above examples illustrate the potential dangers to juvenile offenders, and their families, who are subject to public notification statutes and policies. Juveniles adjudicated as delinquents for sexual offenses are treated much like adults similarly convicted of sexual offenses for purposes of DNA sampling and notification to law enforcement.  As seen in the above examples the results can run counter and often fail to serve the interests of juveniles.  While the statutes requiring juvenile offenders to register are in place for the protection and well being of the general population, a thoughtful reflection of the effects of such statutes on juvenile offenders, shows that State attempts address societal fears of juvenile sexual offenders may be coming at too great of a cost.




In pursuance of the underlying goal of rehabilitation of juvenile delinquent offenders, confidentiality of juvenile delinquency records has been a core rationale attributed to the necessity of this separate system. Confidentiality of juvenile records is based not on constitutional law, but on public policy.[88]  Further, “confidentiality” in the context of delinquency has various applications. Most state juvenile justice systems incorporate interagency agreements into their relevant rules and statutes.[89]  While much has been written on the evolution of the juvenile justice system, prior to the urbanization of American society, sanctions for a child’s misconduct were left to the discretion of the child’s family.[90]  As the United States evolved from an agrarian society to that of a more industrial nation, the juvenile justice system also began to develop.[91]  As families migrated to urban areas seeking employment and worked long hours outside of the home, more children were left to their own devices.[92]

The development of a separate juvenile justice system began in 1899.[93]  The rationale for this separate system was that children are less culpable for conduct and more amenable to rehabilitation.[94]  Further, a child’s misconduct was believed to be based on factors beyond their control. Those factors included: economic status, home life, environment, genetics, immaturity leading to impulsivity, inability to assess consequences, and lack of experience and judgment.[95]

The first formal juvenile justice system was developed in Chicago, Illinois in 1899.[96]  One driving force behind the development of this new juvenile justice system, and thus the need for strict confidentiality, was the minimization of the stigma associated with criminal conduct.[97]  This stigma could, and most likely would, follow the child throughout the maturation process and consequently impede the process of the child growing into a successful and productive member of society.[98]  The necessity of a separate juvenile system was based on social scientists’ belief that children are less culpable for misconduct and more amenable to rehabilitation.[99]  Further, a child’s misconduct was believed to be based on factors beyond their control.  Those factors included elements such as economic status, home life, social environment, genetics, immaturity leading to impulsivity, inability to assess consequences and lack of experience and judgment.[100]

The primary goal of this separate system was rehabilitation.[101]  Social scientists and professionals with expertise in the area of child development believed that, with utilization of the proper tools, the wayward behavior of children could be changed.[102]  Additionally, confidentiality was and is a necessary component of this rehabilitation strategy by assuring that the stigma of misconduct does not follow the child and thus adversely impact their future.[103]

Founders of the juvenile justice system envisioned a process by which disobedient children were to be redirected by a compassionate and knowledgeable judiciary with the assistance of social service agencies.[104]  The main objective of this separate system was not punitive, but rather to “protect, rehabilitate, and heal the child, utilizing the resources of the justice system,” a concept commonly referred to as the doctrine of parens patriae.[105]  Among the fundamental elements of the process was the notion of strict adherence to confidentiality.  Confidentiality of juvenile records has traditionally been regarded as a mainstay of ensuring that delinquent children are not stigmatized by public notification of their inappropriate behavior.[106]

Due to the proliferation in media outlets and the public’s appetite for titillating information, public perception largely reflects the notion that juvenile crime is on the rise. However, rare are those cases in which juveniles are charged with violent, high profile crimes.[107]  Further, many of those crimes, despite the perpetrators age, are directly filed in the adult system, bypassing the juvenile justice system altogether.[108]  Statistically, the majority of misconduct committed by children has remained consistent throughout the years.[109]  As a result, the public has come to fear what is largely a media manufactured problem.  This often baseless frenzy, has led States astray from what has traditionally been a reluctance to treat minors in the same manner as adults.  As seen the examples discussed in section I, the consequences of such an approach to our treatment of juveniles, can have undeservedly catastrophic ramifications for their lives.



What “crimes” are considered sexual offenses?  The very first problem when encountering this question is that many states have vastly different definitions of “sexual offenses.”  For example, in some states, drunken public urination may, at the most, garner the perpetrator a citation and a ride home.[110]  In other states, that act may be considered felonious and label the perpetrator a lifelong sex offender.[111]

Defining what constitutes a sex offense from state to state is virtually impossible. However, it is likely that all states would agree that a definition would incorporate a “sexual act” that violates the criminal code.  Additionally, most states would agree that a sexual act itself is an offense if done to someone below the age of consent at the time of the offense.  “The sexual acts themselves run the gamut of human behavior. Juvenile offenders may engage in fondling, frottage, dry humping, vaginal or anal penetration, or any other type of aggressive sexualized behavior.”[112]  Each state makes independent interpretations of what their statutes will classify as a sexual offense.

In Florida, an “alleged juvenile sexual offender” is defined, in part, as demonstrating “behavior rang[ing] from no contact sexual behavior such as making obscene phone calls, exhibitionism, voyeurism, and the showing or taking of lewd photographs to varying degrees of direct sexual contact, such as frottage, fondling, digital penetration, rape, fellatio, sodomy, and various other sexually aggressive acts.”[113]  Florida’s definition is consistent with several other states.[114]

Two states range their definitions of sexual conduct from lenient to stringent.  In Alabama, a “sexual offense” includes, rape, sodomy, sexual misconduct, torture, abuse, indecent exposure, and child molestation.[115]  Nevada’s statutory definition of a sexual offense seems to expand further than other states. Its definition includes (in pertinent parts):

sexual assault . . . statutory sexual seduction, battery with intent to commit sexual assault, an offense involving the administration of a drug to another person with the intent to enable or assist the commission of abuse of a child. An offense involving pornography of a minor, incest, solicitation of a minor to engage in acts constituting the crimes against nature, open or gross lewdness, indecent or obscene exposure, lewdness with a child, sexual penetration of a dead human body, luring a child or mentally ill person . . . an offense that is determined to be sexually motivated . . . . [116]

Many states differ as to what age is appropriate to find a juvenile capable of “consensual” sexual conduct.  Most find that minors do not have legal capacity to engage in consensual sexual activity.  In New York, a “person is deemed incapable of consent when he or she is less than seventeen-years-old.”[117]  Florida’s age of consent differs depending on the age of both parties.  Under the Florida statute, a person over the age of twenty-four who commits a sexual act with a person that is sixteen or seventeen is guilty of a second-degree felony, regardless of consent.[118]  If the older party is under the age of twenty-four, then the law allows for sexual activity with consent for anyone sixteen or older.[119]

As with most statutory attempts at using a bright-line approach in defining a crime there is going to be over and under exclusion.  While Florida has nuanced their statute to account for relationships with adults by permitting sexual relations if they are not over 24 and the minor is at least 16, many states don’t take this approach.  So in defining what constitutes a sexual crime and who would be a minor states run the risk of prosecuting consensual sexual behavior between minors based on what seems to be to a certain extent arbitrary definitions and classifications of what is the wrong behavior and age to be taking part in that behavior.  If human beings are each unique and complicated, even more so are juveniles who are not developmentally complete.  The very fact that there is such dis-uniformity between the states in this regard should add greater caution to placing classifications on juveniles, such as Sexual Offender, that are available for the public purview through sexual offender registration lists.

Clearly, it is the basis of our federal system to allow each state to be, as Justice Frankfurter famously wrote, “laboratories of experiment.”  In fact, there are many advantages to this system as it allows States to individually tailor their statutes and codes to the like of their respective populations.  It is simply my observation in performing research for this paper that given the problems with placing juveniles on sexual offenders on watch lists, maybe states should not be able to “experiment” at the expense of minors, and that there should be a federally mandated prohibition from doing so.

VI.                                                CONCLUSION


We live in a world where one indiscretion has the power to shape and define a person’s life forever. The juvenile justice system has mainly been built on the premise that juvenile delinquents should be rehabilitated rather than punished, and treated as misguided children instead of ruthless criminals, like their adult counterparts.  “[I]t is the law’s policy ‘to hide youthful errors from the full gaze of the public and bury them in the graveyard of the forgotten past.”’[120]  As the Gault court noted, this claim of secrecy is more rhetoric than reality.  In years since this observation of the court has come to fruition.[121]  We live in an age where sexual offenders and predators have become prevalent, creating the need for sex offender registration and notification laws.  These laws have been enacted for the purpose of protecting the public, especially children.  The problem, however, lies in that not all children are being protected (I am referencing the juvenile offenders).  The application of the registration and notification laws to juvenile sex offenders may bring certain juveniles under the invasive requirements of these laws. The required disclosure of a juvenile sex offender’s identity to the public contradicts the state’s interest in protecting minors under the rehabilitative premise underlying the creation of juvenile courts.

The lack of confidentiality in juvenile sex offender records is in conflict with the rehabilitative goal of the juvenile justice system, which has been retained throughout the years even though the juvenile court system has changed.[122]  Sex offender registration is a form of punishment and thus, is not in harmony with the rehabilitative nature of the juvenile system.  These statutes do not weigh the stigmatizing effects of community notification against the jurisdiction’s rehabilitative efforts with juvenile offenders.[123]  Disclosure of a juvenile sex offender’s past to his community may only create alienation from the community and possibly encourage re-offending because of the negative attitudes the public will have against the child.[124]

The purpose of this paper was not to advocate that no juvenile offenders should be forced to register.  Certainly perpetrators of heinous crimes should.  But the reality is that as mentioned before, when the crimes are heinous juveniles are often prosecuted as adults.  The under and over inclusiveness of statutes which define such crimes and their age requirements simply put those who fall under the over-inclusiveness side, in great peril.  The old adage goes “it is better to let one hundred guilty men go free then put one innocent man to death.”  While it discusses the much more sensitive topic death penalty, its sensitivity to the consequences to our judgments and laws has appeal in the context of juveniles.  In pursuing of our protection of our children we must remember that the perpetrators we are after can also be children, and therefore it would be prudent and appropriate to apply a higher standard of care in meting out justice.

*Joel Yacoob is entering his third year at The Cardozo School of Law, New York, NY.  He served as a staff writer for the Cardozo Journal of Conflict Resolution, and is planning on pursuing a career in matrimonial law.  Mr. Yacoob is a Notes Editor for this publication.

[1] Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Pub. L. No. 103-322, 108 Stat. 1796 (1994).

[2] H.R. Rep. No. 103-392, at 6 (1993).

[3] Id.

[4] Id.

[5] Council on Sex Offender Treatment, Tex. Dep’t of State Health Srvs., Treatment of Sex Offenders, General Information, tinfo.shtm (last visited Oct. 24, 2009).

[6] Id.

[7] Id.

[8] Id.

[9] Compare Iowa Code Ann. § 692A.3 (West 2003 & Supp. 2009) (describing registration requirements), with Tex. Code Crim. Proc. Ann. arts. 62.053-.056 (describing registration and notification requirements).

[10] Anna Barvir, When Hysteria and Good Intentions Collide: Constitutional Considerations of California’s Sexual Predator Punishment and Control Act, 29 Whittier L. Rev. 679, 679 (2008) (indicating that few are willing to speak out when residency restrictions go too far).

[11] Id.

[12] See 42 U.S.C.A. §§ 16901-16902 (2009).

[13] 42 U.S.C.A. § 16901 (2009).

[14]42 U.S.C.A. §§ 16911-16922 (2008). 

[15] See id. § 16911.

[16] 42 U.S.C.A. §§ 16911(2), 16915(a)(1) (2008).

[17] Id. § 16911 (3)(A)(i),(ii),(iv).

[18] Id. § 16915 (a)(2).

[19] 42 U.S.C.A. §§ 16911(4) (A)-(C), 16915(a)(3) (2009).

[20] 42 U.S.C.A. § 16915(b) (2009).

[21] 42 U.S.C.A. § 16913(a) (2009).

[22] Id.

[23] Id. § 16914(a)(1)-(7).

[24] Id. §§ 16919-16920.  Megan’s Law is incorporated in the Adam Walsh Act, as the Megan Nicole Kanka and Alexandra Nicole Sapp Community Notification Program. Id. § 16921

[25] See id. § 16921(b)(1)-(7).

[26] See also U.S. Dep’t of Justice, Dru Sjodin National Sex Offender Public Website, (last visited Oct. 24, 2009).

[27] See 42 U.S.C.A. §§ 16923-16924 (2009) (requiring each jurisdiction to create and maintain a public website within three years of enactment).

[28] NIC/WCL Project on Addressing Prison Rape, Summary Chart of Fifty State Survey of Sex Offender Registration Laws for Juveniles (January 2007), offend- er_registration_laws.pdf (last visited Oct. 24, 2009).  

[29] Center for Sex Offender Management, The Effective Management of Juvenile Sex Offenders in the Com- munity—A Training Curriculum: Section 7, available at (last visited October 24, 2009).

[30] Id.

[31] Id.

[32] N.M. Stat. Ann. § 29-11A-3(D) (LexisNexis 2009).

[33] Emily Bazar, Website Led Shooter to Sex Offenders’ Homes, USA Today, Apr. 5, 2006, at 5A.

[34] E.g., Interagency agreements between The Florida Department of Law Enforcement, The Florida Department of Juvenile Justice, The Florida Department of Children and Families and the various district school boards. Fla. Stat. Ann. § 985.046 (West 2006 & Supp. 2009) and Fla. Stat. Ann. § 985.802 (West 2009).

[35] Bazar, supra note 33 at 5A.

[36] Me. Rev. Stat. Ann. tit. 34-A § 11222 (2009).

[37] Id.

[38] Id.

[39] Rachel King, Sex-Offender Registries: Public Safety or Public Hazard?, OldSpeak, May 18, 2006, http:// (last visited Oct. 27, 2009).

[40] Emily Bazar, Website Led Shooter to Sex Offenders’ Homes, USA Today, Apr. 5, 2006, at 5A.

[41] Rachel King, Sex-Offender Registries: Public Safety or Public Hazard?, OldSpeak, May 18, 2006, http:// (last visited Sept. 11, 2009).

[42] Criminal Law—Sex Offender Notification Statute— Alabama Strengthens Restrictions on Sex Offenders, 119 Harv. L. Rev. 939, 945-946 (2006).

[43] Bazar, supra note 40.

[44] Id.

[45] King, supra note 39.

[46] Kira Millage, 44 Years for Sex Offender’s Killer, Bellingham Herald, Mar. 11, 2006 at 1A.

[47] Id.

[48] Id.

[49] Id.

[50] Joanna S. Markman, Community Notification and the Perils of Mandatory Juvenile Sex Offender Registration 32 Seton Hall Legis. J. 261 (2008).

[51] Fla. Stat. Ann. § 39.201 (West 2003 & Supp. 2009).

[52] Markman, Supra note 50.

[53] Fla. Stat. Ann. § 800.04(5)(a) (West 2007 & Supp. 2009).

[54] Markman, Supra note 50.

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Id.

[60] Jeffrey Scott, 10-year Term in Teen Sex Case Closer to Appeal, Atlanta Journal-Constitution, Sept. 16, 2006, at 2B.

[61] Id.

[62] Id.

[63] Outrage After Teen Gets 10 Years For Oral Sex With Girl, ABC News, Feb. 7, 2006, available at (last visited Sept. 11, 2009).

[64] Id.

[65] Id.

[66] Id.

[67] Id.

[68] Vicky Eckenrode, Sex Abuse Law Needs Changes, Author Says, Augusta Chron., Feb. 21, 2007, at B02.

[69] Outrage After Teen Gets 10 Years For Oral Sex With Girl, supra note 63.

[70] Shaila Dewan, Georgia Man Fights Conviction as Molester, N.Y. Times, Dec. 19, 2006, at A22.

[71] Emil Steiner, Justice Served (Finally): Genarlow Wilson Sentence Voided, Wash., June 12, 2007, available at http:// (last visited September 11, 2009).

[72] H.R. 1059, 148th Gen. Assemb., Reg. Sess., (Ga. 2006) (enacted).

[73] Id. at § 30.

[74] Brenda Goodman, Day of Split Outcomes in Teenage Sex Case, N.Y. Times, June 12, 2007, at A13.

[75] Id.

[76] Humphrey v. Wilson, 652 S.E.2d 501 (Ga. 2007).

[77] Id. at 511.

[78] Mike Householder, Lawmaker’s Rethink Who Makes Sex Offender List, Daily Oakland Press, Apr. 27, 2004, available at (last visited Oct. 24, 2009).

[79] Id.

[80] Id.

[81] Id.

[82] Id.

[83] Householder, supra note 78.

[84] Id.

[85] Id.

[86] Id.

[87] Id.

[88] Bonnie Mangum Braudway, Scarlet Letter Punishments for Juveniles: Rehabilitation Through Humiliation? 27 Campbell L. Rev. 63, 84-85 (2004).

[89] Id.

[90] Janet Gilbert, Richard Grimm & John Parnham, Applying Therapeutic Principles to a Family-Focused Juvenile Justice Model (Delinquency), 53 Ala. L. Rev. 1153, 1157 (2001)

[91] Id.

[92] Id.

[93] Kristin Henning, Loyalty, Paternalism, and Rights: Client Counseling Theory and the Role of Child’s Counsel in Delinquency Cases, 81 Notre Dame L. Rev. 245, 249-50 (2005).

[94] Eric K. Klein, Dennis the Menace or Billy the Kid: An Analysis of the Role of Transfer to Criminal Court in Juvenile Justice, 35 Am. Crim. L. Rev. 371, 374 (1998).

[95] Barry C. Feld, Abolish the Juvenile Court: Youthfulness, Criminal Responsibility, and Sentencing Policy, 88 J. Crim. L. & Criminology 68, 106 (1997).

[96] Henning, supra note 93, at 66.

[97] Id.

[98] Braudway, supra note 88, at 70.

[99] Klein, supra note 94 at 373.

[100] Klein, supra note 94, at 376.

[101] Id.

[102] Id.

[103] Id.

[104] Edward Humes, A Brief History of Juvenile Court, http:// (last visited Oct. 18, 2009).

[105] Kenneth A. Schatz, Juvenile Justice: Reflections on 100 Years of Juvenile Court, 24 Ver. B. J. & L. Dig. 60, 50 (1998).

[106] Id.

[107] See Susan A. Burns, Comment, Is Ohio Juvenile Justice Still Serving Its Purpose? 29 Akron L. Rev. 335, 335 (1996).

[108] Fla. Stat. Ann. § 985.565 (West 2009).

[109] F.B.I., Crime in the United States 2005, Table 36—Current Year Over Previous Year Arrest Trends, ht- tp:// (last visited Oct. 18, 2009).

[110] Phila. Pa. Code § 10-609 (1995).

[111] S.C. Code Ann. §23-3-430.

[112] Victor I. Vieth, When the Child Abuser is a Child: Investigating, Prosecuting and Treating Juvenile Sex Offenders in the New Millennium, 25 Hamline L. Rev. 47, 50 (Fall 2001).

[113] Fla. Stat. Ann. § 39.01 (West 2003 & Supp. 2009).

[114] Ala. Code § 13A-6-60 (Lexis Nexis 2005 & Supp. 2009); Nev. Rev. Stat. Ann. § 179D.410 (LexisNexis 2006 & Supp. 2007).

[115] Ala. Code § 13A-6-60 (Lexis Nexis 2005 & Supp. 2009).

[116]  Nev. Rev. Stat. Ann. § 179D.410(LexisNexis 2006 & Supp. 2009).

[117] N.Y. Penal Law § 130.05(3)(a) (McKinney 2006 & Supp. 2009).

[118] Fla. Stat. Ann. § 794.05 (West 2007 & Supp. 2008).

[119] Id.

[120] In re Gault, 387 U.S. 1, 24 (1967).

[121] Id. at 24.

[122] Stacey Hiller, The Problem with Juvenile Sex Offender Registration: The Detrimental Effects of Public Disclosure, 7 B.U. Pub. Int. L.J. 271, 272-73 (1998).

[123] Id. at 292.

[124] Michael L. Skoglund, Private Threats, Public Stigma? Avoiding False Dichotomies in the Application of Megan’s Law to the Juvenile Justice System, 84 Minn. L. Rev. 1805, 1830 (2000).