A Stitch in Haste

You may recall that Wilson was caught in a bizarre twist of legislative "skill" that denied him the benefit of the increasingly universal "Romeo & Juliet" defense to statutory rape (recently enacted by the Georgia Legislature but not made retroactive). He was instead freed on a (rather generous) interpretation of the Eighth Amendment -- which is fine.

Andrew Sullivan declares Wilson "free at last." Not necessarily:

Given the court did not invalidate his conviction, Wilson was convicted of a felony sex crime. Yes, they invalidated his sentence, but not his conviction. Accordingly, since the Adam Walsh Act was made retroactive to the beginning of time, will Wilson have to register when Georgia enacts their version of AWA? Time will tell...

Note that the original trial court judge specifically held that Wilson should not be required to register as a sex offender. Congress not-so-respectfully disagrees.

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Within the broad debate over the sex offender mania is one quite specific issue that is gaining increasing scrutiny. Recall that statutory rape is the only (major) "strict liability" crime -- no criminal intent is required; the mere act is all that is required for the perpetrator to be guilty.

The rationale for this unique paradigm is not facially absurd. It mimics the logic of summarily denying any and all First Amendment protection for child pornography: the harm to the child is simply too great to even contemplate any excusal of the act. The need to protect children outweighs any concerns about the propriety of eliminating criminal intent as an element of the crime of statutory rape or the supremacy of the First Amendment.

(Note that I am not saying that I necessarily agree with that reasoning -- only that it is not facially absurd.)

But does that reasoning extend to sex offender registries (or residency restrictions)? Given that one can be a convicted statutory rapist without actually being a pervert, does including statutory rape in the list of offenses that warrant inclusion in a registry make sense?

Moreover, is it constitutional? The Adam Walsh Act is retroactive -- "to the beginning of time" as the above quote puts it. That triggers at least some scrutiny under the Ex Post Facto Clause. And even if applying a sex offender registry requirement years or even decades after a person was convicted of a sex crime is not facially unconstitutional (on the dubious logic that a registry is not "punishment"), then does not the unique nature of statutory rape as a strict liability crime not warrant at least a chance to argue against inclusion -- a "totality of the circumstances" test to be decided on a case-by-case basis in the courts? If we now allow reasonable exceptions to statutory rape (e.g., Romeo & Juliet statutes), then why not allow some reasonable exceptions to offender registries as well?

(I will also leave for another day the separate question of the constitutionality, or the propriety, of federalizing registries via the Adam Walsh Act.)

"Protecting children" is a double-edged sword that is as easily abused by activist legislators as it is used by "dedicated public servants." (Compare and contrast to the repeated attempts to unconstitutionally restrict video game sales to minors.) Regardless of whether registries residency restrictions are wise, a rush to legislate in a frenzied (and not entirely genuine) panic is neither wise nor warranted.