THE WALSH ACT AND ITS “SORNA” IMPLICATIONS

Houston Criminal Defense Attorney John Floyd Discusses Sex Offender

Registration Act

In July 2006 President George W. Bush signed into law the Adam Walsh
Child Protection and Safety Act (“Walsh Act”). Title I of the Walsh Act is
called the Sex Offender Registration and Notification Act (“SORNA”)
which expanded the National Sex Offender Registry and established
sanctions up to a maximum of twenty years for sex offenders who do not
comply with the law’s registration requirements.

The Jacob Wetterling Crimes Against Children and Sexually Violent

Registration Act, a federal law enacted in 1994, created the first set of
standards for sex offender registration and notification in the United States.
This act required convicted sex offenders to register their residential
addresses with local law enforcement agencies and mandated state sex
offender Web sites.

While putting forth an innovative, and controversial, monitoring system for

sex offenders, the Wetterling Act quickly attracted critics who pointed to the
discretion enjoyed by the states in deciding which offenders should be
registered and the amount of information that should be posted about them
on their Web sites. A hodgepodge of registration/notification standards
emerged which permitted sex offenders to scour the various state programs
find the ones with the most permissive requirements.

One of the underlying purposes of SORNA is to close these registration and

notification gaps with greater offender accountability and sanctions for non-
compliance by the offender. SORNA applies to all 50 states, the District of
Columbia, the five principal U.S. territories (Guam, American Samoa, the
Northern Mariana Islands, the Virgin Islands, and Puerto Rico), and the
federal Indian tribes whose jurisdictions are defined by the statute.

These jurisdictions have until July 27, 2009 to implement the SORNA
standards. Failure to comply would put the jurisdiction at risk of losing 10
percent of federal Byrne Justice Assistance funds. While most jurisdictions
welcomed the 2006 enactment of SORNA, some states have begun to
question certain harsh ramifications of the law, especially as it is applied to
juveniles. Prior to the Walsh Act, the only juveniles required to register as
“sex offenders” were those prosecuted and convicted as adults. SORNA is
not so kind. It requires that juveniles 14 years of age or older tried and
convicted as adults for crimes comparable to aggravated sexual abuse or
more serious offenses in juvenile courts to be treated in the same manner as
adult sex offenders. They must register with local law enforcement either
after conviction or upon release into the community, and significant
information about them can be released to the public.

Texas is one of an increasing number of states that has indicated it will

ignore the minimum registration/notification requirements of SORNA
concerning juvenile sex offenders. This decision has been influenced by
criticism from an unlikely coalition of law-and-order conservatives: victims’
rights advocates, prosecutors, and “tough-on-crime” legislators. These critics
now believe that SORNA is too costly, unnecessarily strict, and has the
potential of harming the very victims it was designed to protect.

“We think our laws are strong enough,” Sen. Florence Sharpio, R-Plano, the
legislature’s leading proponent of sex offender registration who was quoted
in a recent Houston CHRONICLE article (Feb. 18, 2008).

The chief of the juvenile division in the Harris County District Attorney’s
Office, Bill Hawkins, tends to agree with Shapiro: “When the pendulum
swings, it tends to swing pretty hard. There are an awful lot of sexual assault
cases, and then there are kids who engage in sex at an early age. The Adam
Walsh Act wants to put them all together.”

The CHRONICLE reported that the U.S. Justice Department is expected to

issue the final guidelines states must follow under the Walsh Act to remain
eligible for federal criminal justice funds. One of the Texas lawmakers who
initially supported the Act now opposes it because of its application to
juvenile offenders and the potential cost of its implementation to those
offenders. Rep. Jim McReynolds, D-Lufkin, told the CHRONICLE that it
would cost local communities more to enact the SORNA requirements than
what it would receive in Byrne Justice Assistance funds.

“It’s a financial loser … an unfunded mandate,” McReynolds told the

CHRONICLE.

While Texas has for years included juveniles in its sex offender registry, it
was not an automatic proposition because judges retained the discretion to
decide which ones should be entered. The CHRONICLE reported that of the
47,000 sex offenders listed on the Department of Public Safety’s Web site,
only 275 of them are under 18 years of age. However, there are 3,853
registered sex offenders who committed their offenses when they were
juveniles.

The Walsh Act does not permit state judges any discretion in deciding who
will be registered – the Act unequivocally mandates that anyone 14 years of
age or older convicted of a sex offense must be registered.

The CHRONICLE pointed out the potential harm this mandatory

registration requirement poses. A 14-year-old boy convicted of having
consensual sex with a 12-year-old girlfriend would be treated the same as a
“repeat adult predator who attacked a 3-year-old,” the newspaper said. “Both
would fall into the most severe category, Tier III, requiring them to register
four times a year for at least 25 years and possibly for the rest of their lives.”

“It’s based on the offense of conviction and not on the risk level,” said
Allison Taylor, executive director of the Texas Council on Sex Offender
Treatment.

Sen. Shapiro and others say that their criticism is not a “soft” approach on
the handling of sex offenders, regardless of whether they fall into a low or
high risk category.

“I don’t have any problem if they’re adults,” she told the CHRONICLE.
“It’s much more difficult to change the behavior pattern of a 35- or 40- year
old man.”

The CHRONICLE cited studies which show that less than 10 percent of
juveniles who commit sex offenses re-offend as adults. University of
California law professor Franklin Zimring has studied this issue. One of his
studies found that juveniles who commit non-sexual offenses are twice as
likely to become sex offenders as adults compared to juveniles who commit
sex offenses.

But not everyone is prepared to embrace what the CHRONICLE called the
“go-softer-on-juveniles” approach. Victims of sexual assaults by juveniles
consider these assaults the same as though they had been committed by
adults. And there is statistical evidence showing that juveniles are becoming
increasingly more sexually active, and aggressive.
For example, in 2001 the Rand Corporation initiated a study to determine
the impact of sexually explicit music on the sexual behavior of teenagers
between the ages of 12-17. The study involved 1461 participants, most of
whom had no prior sexual conduct prior to the study. The results were
startling: 51 percent of the teens who listened to songs with explicit sexual
lyrics – songs that portrayed men as “sex studs” and women as sex objects –
were more likely to engage in sexual intercourse or other sexual activities
within two years of listening to the sexually explicit lyrics as compared to 29
percent of those teens who did not listen to sexually explicit music.

The results of the study were reported in Pediatrics (August 6, 2006). Steven
Martino, the lead author of the study, said that exposure to sexually
degrading music gave many teens a “specific message about sex”: boys learn
they should be relentless in their pursuit of women and girls learn to view
themselves as sex objects.

“We think that really lowers kids’ inhibitions and makes them less
thoughtful” about sexual decisions, prompting many to make decisions they
regret later, Martino told Associated Press in August 2006.

Natasha Ramsey, a 17-year-old New Jersey teen, is editor of Sexetc.org., a

teen sexual health Web site produced at Rutgers University. “I won’t really
realize that the person is talking about sex or raping a girl [in the music],”
Ramsey told Associated Press, “[but it] is being beaten into the teens’ head.
We don’t even really realize how much. A lot of teens think that’s the way
they’re suppose to be, they think that’s the cool thing to do. Because it’s so
common, it’s accepted. Teens will try to deny it, they’ll say ‘No, it’s not the
music,’ but it is the music. That has one of the biggest impacts on our lives.”

David Walsh agreed with the findings of the Rand study and Ramsey’s
assessment. The psychologist who heads the National Institute on Media
and the Family said that music videos and other visual media certainly
influence human behavior. At the same time sexual interest is triggered in a
teenager, Walsh told AP, the brain’s impulse-control center undergoes a
“major construction.” When the exposure to sexually stimulating music
meets the psychological/physical mix of brain maturation and developing
sex drive, “it’s not surprising that a kid with a heavier diet of {sexually
explicit music] would be at greater risk for sexual behavior,” Walsh said.
Martino said that Rand researchers tried to include the impact of parental
permissiveness and other social factors on teens’ sexual behavior but found
that sexually explicit music had the most significant impact.

Leonard Pitts, a Miami Herald syndicated columnist, agreed. In April 2006

he wrote that violent sexual fantasies among teenagers has “seeped like
sewage into our culture, showing up in that video game where you kill
prostitutes and rob them, in that music video where a credit card is swiped
through a woman’s backside, in the defamation and death threats that
greeted the young woman who accused Kobe Bryant of raping her.”

In the case of In the Interest of B.L.S., 264 Ga. 643, 449 S.E.2d 823
(Ga.1994) the Georgia Supreme Court pointed out that “ … sexual activity
has increased dramatically among young people in recent years, so few
children are being prosecuted for their behaviour [sic], and exposure to sex
and sex education at an early age, like it or not, has become a way of life.

“In a recent study administered at 32 Georgia high schools, fully 46% of the
freshman girls (generally aged 14 to 15) surveyed reported that they were
sexually active. Furthermore, one in seven of all of the students polled said
they had started having sex before age 13! The statistics make it clear that
the behavior is becoming more common: one in ten seniors said they had sex
before age 13, while one in six freshmen said they had become sexually
active before that age. A study of child welfare recipients indicated that 35%
of the children in foster care, and 22% of those living at home, had had
sexual intercourse before their thirteenth birthday. (See Sex, Contraception
and Pregnancy Among Adolescents in Foster Care, Family Planning
Perspectives, Vol. 21, No. 5, Sept./Oct. 1989). Another recent study shows
that 20% of this country’s young people who attend church had participated
in some form of sexual experimentation by age 13. Study Shows Church
Kids Are Not Waiting, Christianity Today 51 (19__). Even as early as 1982,
in a survey of 160,000 teenagers regarding their feelings and experience
with sexual matters, 31% of the 13 to 14 year olds surveyed reported that
they had had sexual intercourse. J. Norman & Harris, The Private Life of the
American Teenager, 1982.” Id., 449 S.E.2d at 826.

In Coleman v. Caddo Parish School Board, 635 So.2d 1238, 90 Ed. Law
Rep. 1343, 25,617 (La.App. 2 Cir. 3/31/94) the Louisiana Second Circuit
Court of Appeal quoted Dr. Robert Coles, Psychiatrist at Harvard Medical
School, concerning teenage sex: “What a child needs as much as food,
clothing, and a good education, is a moral purpose. Children need something
to live for, not to yield to gross materialism, aimless hedonism and self-
indulgence.”

There exists in this country a popular misconception that ‘rape” is an adult

crime – and that it is generally committed by adults against children. It is
difficult for the average person to perceive of rape as a crime by children
against adults, but ample evidence has been compiled by the United States
Justice Department showing that rape is also a “child’s crime.” An
examination of this evidence is revealing:

BUREAU OF JUSTICE STATISTI CS

REPORTING CRIME TO THE POLICE 1992-2000

• 31% of sexual of assaults reported

• 31% of offenders were alone in the offense
• 27% of sexual assaults reported when offender a friend/acquaintance
• 28% of offenders did not have weapon
• 40% of sexual assaults reported when the offender was armed as
compared to 28% when the offender was not armed
• In general the younger the offender, the lower the percentage of
crime reported to the police. Violent crimes committed by 12-14
year olds were reported at smaller percentage than older
offenders committing the same offense.
• Sexual assault victims between ages 25-34 reported 29% of time; age
35-49 reported 32% of time

BUREAU OF JUSTICE STATISTICS

PROFILE OF STATE PRISONERS 2000

• Number of sexual offenders under age 18 doubled between 1987-97

• In 1995 43% of all state sex offender inmates were 18 years or under

These statistics reveal that “rape” is indeed a young man’s crime – the
number of youthful rapists doubled in the decade between 1987 and 1997.
By 1995 nearly one half of all state sex offenders were under 18 years of
age. The statistics not only reflect the physical ability of teenagers to rape
but the sexual aggression necessary to inspire the rape.
 BUREAU OF JUSTICE STATISTICS
INDICATORS OF SCHOOL CRIME AND SAFETY 2005

• 1993-2003 there were 65,000 violent attacks on teachers in public

schools
• 1999-2000 there were 1,163,000 serious disciplinary infraction
public/schools

These statistics reflect the physical aggression of teenagers – thousands of

attacks on teachers (all adults and many female), and more than a million
serious disciplinary infractions in one year.

BUREAU OF JUSTICE STATISTICS

REPORTING CRIME TO POLICE – 1992-2001

• 31% of the sexual assaults reported to police

• Victims of violence, especially sexual violence, were less likely to
report 12-14 year olds than any other age group.

The reason most often given for not reporting a sexual assault to the police
was that it was a “private/personal matter.” Most women simply cannot
bring themselves to report to the police a rape committed by a 13 year old.

Adolescent sex offenders have not drawn as much media and public interest
as adult sex offenders. There is the lingering puritan, Christian belief that
teenagers are “too young” to know about sex – but studies have shown that
puberty is coming at a much younger age. Sex education in the school
system, explicit sexual content in music, increased sexual exposure in the
entertainment industry, and overt sexual behavior in the family unit have
created an increasing number of adolescent sex offenders.

For example, the Center for Sex Management in Silver Springs, Maryland in
2000 released a report entitled “Adolescent Offenders – Myths/Facts about
Juvenile Sex Offenders which revealed the following significant findings:

• 13-17 year olds commit one-fifth of all rapes and one-half of child
molestations in this country.
• In 1995 approximately 18 adolescents per 100,000 were arrested for
forcible rape.
 • The study found that most of these offenders were adolescents but
prepubescent youths engaged in sexual behavior as well.
• Juvenile sex offenders are generally between 13-17 years of age
• 30-60% exhibit learning disabilities and academic dysfunction
• Up to 80% have diagnosable psychiatric disorder
• Many have difficulty with impulse control and judgment
• 20-50% have history of physical abuse
• 40-80% have history of sexual abuse

The Center for Sex Management’s study was supported by another 2000
study undertaken by the University of Virginia: Understanding Juvenile Sex
Offenders: Research & Guidelines for Effective Management & Treatmen;
Juvenile Justice Fact Sheet. Charlottesville, VA; Institute of Law,
Psychiatry, & Public Policy, University of Virginia. Dr. J.A. Hunter opens
the report with the following observations:

“Juvenile perpetrated sexual aggression has been a problem of growing

concern in American society over the past decade. Currently it is estimated
that juveniles account for up to one-fifth of the rapes, and one-half of the
cases of child molestation committed in the United States each year. The
majority of cases of juvenile sexual aggression appear to involve adolescent
male perpetrators; however, a number of clinical studies have pointed to the
presence of females and prepubescent youths who have engaged in sexually
abusive behaviors.”

Dr. Hunter noted that the “developmental origin” of aggressive juvenile

sexual behavior include but is not limited to “ … maltreatment experiences,
exposure to pornography, substance abuse, and exposure to aggressive role
models.”

Dr. Hunter identified the characteristics of the two types of juvenile sex
offenders: the ones who target children and those who target peers or adults.
“The difference between these two groups,” Dr. Hunter said, “is usually
based on the age difference between the victim and offender.” The following
is a list of characteristics identified by Dr. Hunter that are associated with
juvenile sex offenders who target peers or adults:

• Juveniles who sexually offend against peer or adults predominantly

assault females and strangers or casual acquaintances.
 • The sexual assaults of these youths are more likely to occur in
association with other types of criminal activity (i.e., burglary) than
are the assaults of those who target children.

• These juvenile sex offenders are more likely to have histories of non-
sexual criminal offenses, and appear more generally delinquent and
conduct disordered than those who sexually assault children.

• This group of youthful offenders is also more likely to commit their

offenses in public areas than those who offend against children.

• These juveniles generally display higher levels of aggression and

violence in the commission of their sexual crimes than those who
offend against children.

• Youths who sexually offend against peers or adults are more likely to
use weapons and to cause injuries to their victims than those who
sexually assault children.

Dr. Hunter found the following characteristics are common in both types of
juvenile sex offenders: higher rates of learning disabilities and academic
dysfunction (30-60%); the presence of other behavioral health problems,
including substance abuse, and disorders of conduct (up to 80% have some
diagnosable psychiatric disorder); and observed difficulties with impulse
control and judgment.

In North Carolina v. Drummond, 81 N.C.App. 518, 344 S.E.2d 328 (Ct. of

App. 1986) dealt with a case in which an ll-year-old child was convicted of
“first degree rape” against a six year old child. This case certainly supports
the findings of an increasing number of studies that show adolescent and
prepubescent sexual aggression has become a significant social issue
warranting concern.

These reports and studies clearly reveal that “child molestation” and “sexual
assaults” are not purely an adult phenomenon. The Crimes Against Children
Research Center at the University of New Hampshire reported in 2006 that
60,000 to 70,000 arrests are made each year in sex crimes against children.
Juveniles comprise a significant percentage of these sexual assaults. The
Walsh Act was designed to place these juveniles under the registration and
notification requirements of SORNA.
Is this a rational, sensible criminal justice policy? Many proponents of the
Walsh Act now believe it is not.

But as this debate gains momentum it should be noted that there are
approximately 551,000 sex offenders registered in the United States,
according to the National Center for Missing and Exploited Children. It
should also be pointed out that shortly after President Bush signed the Walsh
Act USA TODAY reported that the number of sexual assaults against
children ages 12 to 17 decreased by 79 percent in the decade between 1993
and 2003. The United State Department of Justice, through its Office of
Juvenile and Delinquency Prevention, also reported a 40% decline in sexual
offenses against children between 1992 and 2000. During that same period,
there was a 56% decline in victim-reported offenses against children.

The U.S. Justice Department has further pointed out that sex offenders have
a 15% recidivism rate while other offenders have a 43% recidivism rate. The
State of Washington firmly advocates a policy of treatment for sex
offenders. It leads the nation in such programs. Proponents of such treatment
programs attribute the success of these programs to the lower recidivism
rates for sex offenders.

But for the sake of balance it should also be pointed out that in 2006 the
Washington State Institute for Public Policy released a study that reported
the state’s prison treatment programs for male offenders had no real effect at
reducing recidivism rates for sex offenders. A 2005 California study drew
similar conclusions concerning its hospital program for confined sex
offenders.

“There’s pretty good evidence that if you pick out the right kind of people,
who feel badly about what they’ve done, you can alter those patterns,” said
Roxanne Lieb, director of the Washington State Institute for Public Policy.
“But if you have someone who’s anti-social, who hates women or who is
sexually attracted to little kids, no one knows anything about what to do
about those three things.”

These studies have not deterred the state of Washington. It maintains a 200-
bed, $1.8 million-a-year program at the Twin Rivers Unit in the Monroe
Correctional Complex – and, in fact, state officials want to establish a
similar program in yet another penal facility.
“The [Public Policy] study says what it says,” said Sally Neiland, program’s
prison supervisor. “But being here every day, seeing the men released,
watching them graduate, hearing from them, they have successful lives –
they report that wouldn’t have happened without treatment.”

The statistics in Washington are indeed impressive. 2.7% of the sex

offenders who did not receive treatment and released from prison were
convicted of a sexual felony within six years while only 1.8% of those who
received treatment were convicted of a sexual felony within six years. The
figure is even less for those offenders who wanted treatment but couldn’t get
it – 0.t6%

Washington officials point out that in the United States, Canada and other
Western countries 9.9% of sex offenders who participate in state-of-the-art
treatment programs re-offend with new sex crimes while 17.4% of those
who do not receive treatment re-offend with new sex crimes

This column previously reported that these prison sex offender treatment
programs include teaching offenders how to recognize stressors for anger or
boredom, how to develop social skills, and how to empathize with their
victims. They are also instructed about how to change their thought and
behavioral patterns. The latter is frequently accomplished with a treatment
called “arousal conditioning” – associating a foul odor like Limburger
cheese or rotting meat to a deviant sexual fantasy. Supervisors and
counselors in these programs measure success with polygraph examinations
and plethysmograph tests, the latter of which measures penile arousal to
pornographic material.

The programs also include controversial treatment therapies such as

“chemical castration” – combining anti-depressants and anti-androgens
which reduces testosterone, but the latter drug has such severe side effects
that only a few offenders try it.

“The reality is this: Nothing beats intelligence,” said Robert Packard, a

clinical forensic psychologist and past president of the Washington
Association for the Treatment of Sexual Abusers. “We spend no money on
trying to understand how to do better – how to evaluate and treat offenders
better.”
But one Washington lawmaker is not buying treatment. “It’s no big secret
treatment doesn’t work,” said Pam Roach, a longtime advocate of decreased
funding for the state’s sex offender treatment programs. “You cannot rewire
somebody’s mind.”

Texas Sen. Florence Shapiro would agree, to a point. She and others who are
critical of the Walsh Act’s restrictions on juvenile sex offenders apparently
believe that these young minds can be “rewired.” The reality is that there is
no significant empirical evidence that shows juvenile sex offenders are more
amendable to rehabilitation than adult sex offenders. This bring us to the
bottom line: the rate of sexual assaults and sexual violence by juveniles is
increasing at a rate significantly higher than among adults. So should
SORNA apply to them?

All this begs many Questions. Can a convicted sex offender ever pay their
debt to society and, after rehabilitation, live a normal life without the
continued punishment of registration and public scrutiny? Does this
continued registration and public condemnation actually prevent a sex
offender from true rehabilitation and cause an intense frustration, and other
emotional triggers, leading to relapse and re-offending?