REGISTRY WITHOUT REASON

EDITORIAL

It's unjust to saddle teens with damning label for life

By Maureen Downey
The Atlanta Journal-Constitution

Published on: 10/21/07

The state of Georgia regards 28-year-old Wendy Whitaker as such a threat to public safety that it posts her photo and address on the Internet, bans her from living near schools, churches and playgrounds and forbids her from working with children.

What makes Whitaker such a terrible danger?

Eleven years ago, when she had just turned 17, Whitaker engaged in a single act of oral sex with a boy in her sophomore class on school property. That's it.

Though less than two years separated the couple -- the boy was about to turn 16 -- Whitaker was arrested for sodomy, a charge to which she pleaded guilty and completed five years probation. However, that plea also means that Whitaker will serve a lifetime on the state's sex-offender registry, placing her in the same category as truly dangerous people such as rapists and child molesters. It also imposes severe -- some might argue unconscionable -- limits on where she can live and work.

Whitaker's case shares many of the same features -- and outrages -- as that of Genarlow Wilson, the Douglas County man whose 10-year prison sentence for consensual teen sex has recently sparked national condemnation.

Neither Whitaker nor Wilson had a history of sex crimes. Like Whitaker, Wilson was 17 when he engaged in consensual oral sex with a 15-year-old classmate. And like Whitaker, Wilson faces a lifetime on the sex offender registry, a designation that will follow them anywhere they go in the United States.

In fact, Wilson continues to reject a plea bargain that would considerably shorten his 10-year sentence in large part because he does not want the sex-offender label to cast a shadow over his adult life.

"I don't feel like one mistake should cost me 10 years in prison and a lifetime on the sex-offender registry," Wilson says. "I want to be able to go to school and have kids."

Severe tag for low-level acts

That concern is understandable. Federal law requires states to create registries of offenders convicted of sex crimes or offenses against children. It also requires local law enforcement agencies to provide information to schools, day care centers and parents about sex offenders living in the community. In Georgia, sheriff's offices publish the photos of newly registered offenders in their jurisdictions in their local newspapers, and the GBI maintains a registry of all offenders.

However, 22 states, including Georgia, have gone further by imposing residency or work limits on offenders on the registry. Of those, Georgia's law is among the most extreme.

According to a recent count, 14,572 people are now listed on the Georgia registry. While a large number are rapists and child molesters, only 38 are classified by the state as predators, someone "who suffers from a mental abnormality or personality disorder or attitude that places the person at risk of perpetrating any future predatory sexually violent offenses."

Obviously, the public has every reason and right to know the whereabouts of those offenders, 12 of whom are behind bars. Just as obviously, the sex offender registry should include those convicted of rape and child molestation, and place restrictions on their activities.

However, the registry doesn't need to include the lowest level offenders, least of all teenagers punished for sex acts that, unfortunately, are now common among high school students. Half of teens ages 15 to 19 have had oral sex, according to a 2005 Centers for Disease Control and Prevention report. That does not mean that half of teens belong on a sex-offender registry.

Unfortunately, changing state law to remove people such as Whitaker and Wilson is difficult. Instead, the instinct of politicians is always to toughen such restrictions, often without thinking through questions of effectiveness or fairness.

Just last year, the General Assembly again tightened the restrictions. Previous law had barred sex offenders from living or loitering within 1,000 feet of schools, day care centers, parks, rec centers or skating rinks. The 2006 law added churches, swimming pools and school bus stops to that list.

For the first time, the new law also barred sex offenders from holding jobs within 1,000 feet of schools, child care centers or churches.

Repeatedly forced to move

With those changes, offenders who had previously been in compliance with state law suddenly found themselves in violation. If they didn't move or find new jobs, they faced prison.

For Whitaker, a full-time college student studying criminal justice, the law has meant that she and her husband of seven years had to leave their new house in Harlem, Ga., because it was near a mother's morning-out program.

"This is a home we love," she says in a written statement on how the law affected her life. "It has a white picket fence and big American flag outside."

The couple also gave up attending Sunday services for fear of violating the provision against loitering near churches. Whitaker and her husband have now moved twice because of the law, while still paying the mortgage on their original home. She and her husband bunked with her brother-in-law for a time, but Whitaker was concerned that she would eventually be in violation of the law because her niece was about to start school and a school bus would be stopping near the house.

Jeffery York, 23, of Polk County, faces a similar predicament. He, too, was convicted of sodomy for having oral sex with a 15-year-old when he was 17. Because his home was near a school, he moved in with his grandmother last year. When it turned out that she lived within the 1,000-feet limit of a child-care center, York was forced to move again. He now lives in a camper van in the woods without running water or electricity. "I feel like my life is just stuck in the mud because of all the restrictions on me," says York.

The bus-stop provision of the registry law is the most disruptive. Under challenge, the provision is not being enforced now. "There is literally a school bus stop on every corner. The law went way too far -- it tried to criminalize people's very existence," says attorney Sarah Geraghty of the Southern Center for Human Rights.

A change is needed

The Southern Center and the Georgia chapter of the American Civil Liberties Union filed a class-action lawsuit challenging the residency restrictions; Whitaker and York are among those included in the case, which is still in the courts.

"We know that there is not a danger to society from someone like Wendy Whitaker or Jeffery York," says Geraghty. "We need a law that recognizes when people are not a danger to children."

Georgia law should be changed to reflect the difference between the youthful indiscretions of teenagers, such as Whitaker, York and Wilson, and the predatory acts of dangerous deviants. In addition to putting unfair and unnecessary restrictions on their lives, their inclusion on the list complicates the job of law enforcement agencies charged with tracking those listed on the registry.

"By putting everybody on the registry, you are giving a false sense of security to society," says former DeKalb District Attorney J. Tom Morgan, an internationally recognized expert on the prosecution of sex crimes. Morgan says a zealous prosecution of teens for sex crimes can lead to such absurdities as the Oregon case in which two immature 13-year-old boys faced felony sex abuse charges because they ran down their school hall in February and swatted girls on the backsides.

If convicted, the middle school students would have been on Oregon's sex offender registry for life. Although the two boys spent five days in jail and were barred from school for the rest of the year, a judge dropped charges against them in August after they apologized to their classmates.

Discretion must be allowed

And, unfortunately, it's not hard to imagine similar injustices emerging. In one possible example cited by Morgan, "you've got a 17-year-old who snaps a picture of his girlfriend's breasts using his cell phone, and he's guilty of possessing and distributing child pornography."

Georgia should reserve its sex registry for those who truly pose a danger to others and eliminate those who were involved in consensual, nonviolent acts. It should also create a graduated system that imposes the greatest restrictions on the worst offenders.

The law should also allow sex offenders a greater chance to have their names removed from the registry. Florida, for example, allows teens involved in a consensual sexual encounter with a partner within four years of their age to petition for removal of their names. In Indiana, courts have discretion to rule that young violators found to be in a "dating relationship" with an age difference of four years or less should not be included in the state's sex-offender registry.

This is a complicated and at times highly emotional issue in which flexibility, not hard and fast rules, provide the best balance between justice and public safety.

-- Maureen Downey, for the editorial board (mdowney@ajc.com)

ADMIN@OPERATIONAWARENESS.COM

What makes Whitaker such a terrible danger?

Eleven years ago, when she had just turned 17, Whitaker engaged in a single act of oral sex with a boy in her sophomore class on school property. That's it.