In the United States, anyone convicted of a sex offense is punished with two criminal sentences. The first is the one they serve in prison. The second begins when the first ends, and they are forced to enroll in a Sex Offender Registry (SOR).
SOR restrictions aren’t one-size-fits-all, because there isn’t just one registry—there are many. They exist at federal, state and municipal levels, creating a nightmarish tangle of legal requirements under which people can be prosecuted for violating SOR restrictions that don’t even exist in the jurisdiction where they live.
Everywhere else in the world, law enforcement keeps SOR confidential. The US is the only country that publishes them for anyone to see. In addition to the registered person’s mug shot and conviction, SOR often disclose the address of their home, work or school—while making it nearly impossible for many to access housing, employment and education in the first place.
The first state to create an SOR was California, in 1947. But Washington State was the first to make its SOR public, in 1990, and others hastened to follow. The rationale behind publishing SOR was that it was about prevention, not punishment—that parents and guardians needed access to that information in order to protect their children from violent sexual predators in their communities.
As often happens in the criminal-legal system, things designed for one purpose are soon being used for another. Today, people can be required to register on SOR for convictions that were neither violent nor sex-related at all. Often, the people targeted this way are from the same communities as those at the center of harm reduction.
Many people on SOR are there because they’re trans; engage in sex work; use drugs; living with HIV; living in poverty.
Though not on an SOR myself, over the course of the nearly 30 years I’ve spent incarcerated I’ve seen how, over and over, this system is weaponized against the most vulnerable and disenfranchised. It’s true that some people on SOR are violent pedophiles. But whether or not that is useful for public safety, it is also true that many people on SOR are there because they’re trans; engage in sex work; use drugs; live with HIV; or live in poverty.
Many states require people without an address to re-register with local law enforcement every 30 days. “A transient shall … also list the places where he or she sleeps, eats, works, frequents and engages in leisure activities,” states California law.
Kansas has expanded its registry to include people convicted of drug charges, including comparatively minor ones like possession.
“Criminal exposure” allowed people with HIV to be prosecuted for having sex or sharing needles.
Most states have HIV-based convictions that require lifelong registration on SOR. Tennessee, where I’m incarcerated, had until recently two “violent sexual offenses” related to HIV status. The first, “criminal exposure,” allowed people living with HIV to be prosecuted for having sex or sharing needles.
The law did not require that any new HIV transmission occur, nor consider whether any HIV harm reduction measures like condoms, PrEP or antiretroviral medications were used. A legal defense required that the person’s sexual partner testify they were aware of the person’s HIV status and gave “advance consent” to the sexual encounter, knowing that they could contract the virus; there was no legal defense for sharing needles.
“Criminal exposure” in Tennessee was struck down effective July 1, and people with those convictions can now apply to have their name removed from the registry. But the state’s other HIV-based conviction, “aggravated prostitution,” remains in place: Anyone living with HIV can be convicted of this if they engage in sex work or are perceived to be engaging in sex work, even if no physical contact took place. For instance, a trans woman whom police decide is “loitering” in public with the intention engaging in sex work can be prosecuted this way if she has HIV.
Most people convicted of a felony are not sentenced to prison for life, because their punishment is only meant to last a certain amount of time. But many people on SOR are there for life. Some SOR require that people remain listed even after they die. How else to view such a system than as one intended to punish, rather than protect?
Photograph via Tennessee Bureau of Investigation