THE CONSTITUTIONALITY OF STRICT LIABILITY IN SEX OFFENDER REGISTRATION LAWS

To find sex offender notification laws unconstitutional] is to find that
society is unable to protect itself from sexual predators by adopting the
simple remedy of informing the public of their presence. That the remedy
has a potentially severe effect arises from no fault of government, or of
society, but rather from the nature of the remedy and the problem; it is an
unavoidable consequence of the compelling necessity to design a
remedy.[]

Where sex offender registration laws serve to protect the community and track
recidivists, they are legitimate regulatory vehicles that withstand constitutional
scrutiny.[] But central to their legitimacy must be the determination that the
regulation is carefully crafted to limit its punitive effect.[] Only statutes that

are sufficiently tailored to meet their civil aims and limit their incidental punitive effects will be deemed constitutional.[] As this article will explore, several factors have coalesced to create a system in which sex offender registration laws have become unmoored from their regulatory purposes, and, as applied to the strict liability offender, create punitive laws without the benefit of due process. These factors include the Supreme Court’s approval of a registration system that does not require individualized assessment of dangerousness;[] a persistent and incorrectly held position that strict liability serves as an appropriate framework for the
determination of serious criminal offenses, particularly in statutory rape;[]
and, finally, a narrow view of the protected interest of loss of reputation that may
not correspond with evolving liberty interests under Lawrence v. Texas.[]

…., this article questions whether strict liability provides an appropriate and constitutional underpinning for the requirement to register under sex offender registration laws. I ddraw the distinction between a narrowly drawn sex offender registration system designed to protect the public and a system marked by a net cast so wide that it captures offenders whose predatory behavior or criminal intent was never proven. This article argues that because of the convergence of several factors, the sweeping nature of sex offender registration laws creates an impermissibly punitive and unconstitutional impact on the strict liability offender. Although the motivation behind sex offender registration laws is well founded, it is equally clear that these laws also serve to name, brand, and stigmatize those convicted of sexual offenses,[] a stigma that attaches and follows the offender for years, no matter the inconsequential nature of the underlying offense.[]

Great Read at, http://www.bu.edu/law/central/jd/organizations/journals/bulr/volume86n2/documents/CARPENTERv2.pdf

CATHERINE L. CARPENTER

Professor of Law, Southwestern University School of Law

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