Unfair Appearance in Sex Offender Databases

Not everyone on sex offender lists are rapists or child molesters. Many people on sex offender lists were convicted long ago of now-legal acts such as sodomy or oral sex. Now that sex offender databases are accessible to the public in the wake of Megan's Law, having your name in the database can have devastating consequences.

Here's how public access to sex offender lists works, and how to get your name off a list if the act you were convicted of is no longer illegal.

Public Access to Databases

Requiring sexual offenders to register with the police department is nothing new in many states, but public access to sex offender databases is a fairly recent phenomenon. Public notification of sexual offenders' identity, location, and other information was inspired after 7-year-old Megan Kanka was raped and murdered by a repeat sex offender in New Jersey. Responding to the public outcry, the U.S. Congress directed the Department of Justice to:

• maintain a database of sex offenders
• let the states develop their own databases if they choose, and
• require the states to enact public notification laws (or lose federal crime-fighting funds).

The public can browse the contents of the sex offender databases at sheriff's offices and police departments and, in some states, on the Internet.

Appearing Unfairly in Databases

In the fervor of cracking down on pedophiles and rapists, few foresaw the devastating impact these new notification laws would have on those whom no one expected to appear in these databases -- but appeared nonetheless. Gay men convicted of sodomy before 1976 when it was still a criminal offense; teenagers convicted of statutory rape for having sex with their teenage sweethearts; drunken partygoers convicted of indecent exposure after streaking -- these and other people caught in moments of indiscretion have been labeled sexual offenders and pulled into the registration system.

Some types of sexual conduct that once were crimes have in recent years been decriminalized. For example, the U.S. Supreme Court invalidated laws prohibiting consensual sex between same-sex couples. People convicted under such laws who had to register may be able to apply to their state's justice department to have their names removed from its sex offender database.

Getting Out of a Database

Addressing the issue of unfairly stigmatizing those convicted of victimless crimes, some states, notably California, have amended their sex offender registration laws to exempt people convicted of certain now-defunct crimes -- mostly acts of consensual gay sex that have been legalized  -- from being registered as sex offenders.

If already registered and included in any sex offender database, these people can have their names removed. The exemption process involves submitting documents to the state's department of justice (DOJ) to prove that the conviction was for conduct between consenting adults. If the DOJ denies the application, the person can appeal the decision to the state superior court.

To learn more about how the criminal justice system works, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara J. Berman-Barrett (Nolo).