The Right Coast

November 18, 2005
Megan's Law and the Problem of Statutory Rape
By Gail Heriot

I got an e-mail from a good friend of mine a couple of weeks ago. He had just run across the California web site for registered sex offenders and found that I have been living a couple of doors down from a convicted rapist. Good grief, I thought. I checked it out and found another one a couple of blocks away. It’s always something, isn’t it? But life goes on....

On the whole, I approve of "Megan’s Law." Yes, I understand that there are significant problems. Some people go overboard when they hear that they live near a registered sex offender. A harmless ex-offender gets hounded out of the neighborhood (and sometimes out of his job too). No doubt there are lots of ex-offenders out there who have paid their debt and are now trying hard to be responsible and productive citizens. Megan’s Law makes its harder for them to succeed.

But the fact is that (at least for certain sex offenses) those who have committed the offense in the past are much more likely to do so in the future than are those who have not. And all the wishful thinking in the world won’t change that. A very dear childhood friend of mine learned this the hard way a year or so ago. She married a man with a history of child molestation. He told her that he had the problem under control and that he would never do such a terrible thing again. And I’m confident he was sincere when he said it. But after a few years of good behavior, my friend made the mistake of allowing her husband occasionally to pick up her son’s step-daughter at the elementary school and drive her home. The temptation proved too great for him. As a result, a primary school child has been through an ugly trauma that may or may not have long-term effects, and the child’s tormentor has been sent to prison for a very long time.

Given the seriousness of the recidivism problem, it seems wrong to me for a state to withhold information that could be so useful in protecting the public. No one is entitled to escape the reputation he has earned simply because he has served his time. Megan’s Law isn’t about heaping further punishment on offenders. It’s about giving people the information they need to protect themselves and their children. That seems only just to me. The fact that some ex-offenders will be treated more harshly than I would like is the price we pay for that useful information.

But there are limits. Not all sex offenses are equally serious, and not all are as likely to lead to repeat offenses. The little injustices wrought by Megan’s Law are very real. It therefore makes sense to limit its application to the kinds of offenses that are more serious or more likely to be repeated. Evidently, however, some states have not done so.

I received another e-mail a day or so ago, this time from a stranger. I suspect half the bloggers in the country got a similar message. It seems the author–a college student in Georgia–had gone to a Christmas party and a young female who was smoking and drinking had "come on" to him. One thing led to another and they ended up in bed together. So far, the story is pretty ordinary. Bless those little hormones; they make the world go ‘round (even though they occasionally get us in a mess of trouble).

A few days later it unfolded that the female was the host’s sister and that she was only 14 years old. When her police officer father found out, the college student (age 25) was charged with statutory rape and child molestation. The child molestation charge was ultimately dropped in exchange for a guilty plea on the statutory rape change, which he evidently agreed to at a time when statutory rape offenders were not covered by Georgia’s version of Megan’s Law. That later changed, much to the student’s horror, and his name, address and photo went up on the Georgia Bureau of Investigation’s web site. He lost his job. And that was just the beginning of his problems, which I will not detail here.

The student claims that he honestly believed that she was an adult. I have no idea if he is telling the truth or if the incident occurred in the manner described at all. I did verify from the Georgia Bureau of Investigation web site that a someone with the same name and age as the purported author of the e-mail was indeed convicted of statutory rape. But even if he is making the story up, I suspect that similar stories have occurred in those states, including Georgia, where statutory rape is among the offenses reportable under the applicable version of Megan’s Law.

Statutory rape, of course, isn’t rape as that term is commonly understood. It is a terrible shame that they are given the same name. Traditional rape is all about non-consensual sex. Statutory rape is about consensual sex where one of the parties is below the age of consent (which in Georgia is 16). While there is good reason to criminalize such conduct, it’s a mistake to treat statutory rape as if it is as depraved as rape, especially in view of the fact that as to the issue of the victim’s age it is a strict liability crime. In other words, even an adult who reasonably believes that he is having sex with another adult is guilty of statutory rape if his partner in fact turns out to be below the age of consent. "Officer, I didn’t know," is no excuse no matter how reasonable the error.

Back in the days before statutory rape’s inclusion under Megan’s Law, a strict liability rule might have made some sense. It tells potential defendants that they had better be right about the age of their potential sexual partners, because the law will show them no mercy for error. That’s a harsh rule that will occasionally ensnare a complete innocent. Imagine the elderly gentleman who takes up with what he thinks is an elderly woman he met at the AARP meeting. She’s grey-haired and wrinkly, but appears to be young at heart. It turns out she’s a fourteen year old suffering from Hutchinson-Gilford Syndrome (Pre-Mature Aging Disease). He’s guilty. But for him (and for the many adults whose situations are less compelling, but nevertheless somewhat understandable), the penalty is likely to be low.

With Megan’s law, at least in those jurisdictions that include statutory rape as a reportable offense, all this has changed. After he has served time or (more likely) served his probation) an ex-offender can be hounded out of the neighborhood and lose his job all because he may have reasonably mistaken a girl for a woman. There but for the grace of God go half the young men in America. Do we really want to go that far?