Prof. Eugene Volokh, UCLA Law School
Topeka Capital-Journal, Sunday, December 21, 1997, at 5A
Say an acquaintance of your daughter's had gotten drunk and sexually assaulted a female friend a few years ago, fracturing several of the woman's ribs in the process. Do you think your daughter might want to know about this? Might this knowledge lead her to be extra cautious around him?
Earlier this month, three Kansas judges said that the answer is essentially "no." The legislature had concluded that sex offenders must, for the protection of all our daughters and sons, register with the police for ten years after their crime. But for Clifford A. Scott, who committed the very acts I described above, the court set that requirement aside.
Requiring Scott to register as a sex offender, the judges held, violated the state Constitution, because it was "grossly disproportionate to the crime committed." Scott, they said, "is not a pedophile or a child molester, and there is no indication that he has a mental illness or personality disorder that would suggest he will reoffend." Rather, Scott's acts were done "under very situational circumstances not likely to arise in the future." Nothing to worry about, the judges seemed to be saying -- sure, maybe he did this once, but of course there's no reason to think he'll do it again.
Now I want to know: Exactly what unusual "situational" circumstances are the judges speaking about here? One day, Scott will be out of prison. One day, he'll probably get drunk again. One day, he'll have another female friend. Put this together, and you get exactly the situation in which Scott tried to sexually assault someone. What's "unlikely" about that?
Scott has shown himself willing, despite the risk of prison, to commit a heinous crime for the sake of momentary sexual gratification. He's shown himself to be totally heedless both of fundamental morality and practical consequences; nothing in the court's opinion suggests the contrary. If this isn't a "personality disorder" that "suggests he will reoffend," I don't know what is.
Scott and those like him are a menace to those around them. Some such convicts, I realize, won't reoffend; but many will. And, as many state legislatures have concluded, these criminals' neighbors are entitled to know the truth about them.
"There is no objective standard," the court concluded, "upon which Scott's reputational rights can be swept away in the name of protecting the community." I'd always thought we should protect people's good reputations against lies, not against the truth. If Scott wants a better reputation, he can build it by leading a blameless life for long enough that people will see that he's turned over a new leaf -- not by pulling the wool over their eyes, with the judges' help.
The court seems to have been very understanding and sympathetic to Scott, and very willing to give him the benefit of the doubt. I wonder why it wasn't a bit more understanding and sympathetic to the next woman who'll be around Scott when he gets drunk and feels horny.
And I wonder whether the judges would want their daughters to know whether a new acquaintance of theirs is a convicted sex offender.