10-22-2011 Wisconsin:
Wisconsin currently treats sex offenders with more care and effort than it treats offenders that are purely violent, and it's time that changed.
Criminal law is designed to be a crime and punishment system. If someone commits a crime, we have established punishments to accomplish clearly articulated goals — including punishment of the offender, protection of the community and deterrence for others considering the same conduct.
In other words, the punishment is designed to stop the offender from repeating his criminal conduct and make other offenders stop before committing their own criminal conduct. The criminal theory relies on the fact that crimes are committed by choice — which theory is evidenced by our willingness to provide a special defense for those who we consider "not guilty by reason of mental disease or defect," (commonly referred to as NGI).
For most of the criminal code, this criminal theory makes sense. However, we have a troublesome issue with sexual offenders.
As with most states, someone who is convicted of a sex crime in Wisconsin is considered a sexual offender and required to register as such for a period of time much longer than the actual sentence imposed.
Unlike any other criminal, we have recognized that there is something about a sexual offender that requires us to stay on our guard for subsequent offenses. The state monitors these offenders — a minimum of fifteen years after their criminal sentence is completed — and publishes a website where neighbors may see exactly where these offenders live. Wisconsin does not do the same for felons convicted of manslaughter, burglary, battery, drug crimes or use of a dangerous weapon — just for those convicted of sex crimes or other sexually motivated crimes.
According to the Wisconsin sex offender registry website, Port Washington and Saukville have about thirty registered sex offenders between them. The offenses that have put these individuals on the registry range from sex with a child under the age of sixteen (where the defendant was eighteen at the time he was charged) to child pornography and first degree sexual assault.
In Wisconsin, a judge may order a defendant to register for life as a sex offender for any crimes committed under the chapters covering crimes against life and bodily security, sexual morality or children, crimes violating statutes specifically for invasion of privacy or representations depicting nudity, or entry or damage into locked dwellings — provided those crimes were for sexual gratification or to degrade or humiliate the victim.
The list of crimes that may lead to sex offender registration is fairly broad, and includes criminal misdemeanors (peeping, as an example, or making obscene drawings), as well as some very serious felonies.
Unfortunately, the registry does not differentiate between the levels of crime.A sex offender is a sex offender.
Period.
The Department of Corrections describes different “levels” of sex offender, but the offender still has to notify the state where he is, which e-mail addresses he uses, the name and address of every internet profile, employment information and any school information. Further, the individual is restricted from being around children or places where he might be expected to run into children.
While the law provides that some sex offenders may stop the requirements of the registry fifteen years after the conclusion of their sentences, the judge has freedom to impose a lifetime of registration on any case.
Again, the only imposition on a felon released after a first-degree murder conviction (assuming he is eventually released) is that he will not be allowed to carry a gun or wear body armor, plus he may face an enhanced penalty after any additional criminal conduct. It is this inconsistency between sex and violence that should be most troublesome.
When it comes to any other offense, society at least has the ability to explain the conduct. As wrong as the actions are, we can at least understand someone who steals property out of desperation, someone who beats another out of anger,or someone who gets addicted to drugs out of depression. Again, understanding does nothing to excuse the conduct, but given the worst few weeks imaginable, it is not a stretch to realize that any one of us might get to the situation where some criminal conduct become a choice to consider. Although most of us would never act on the conduct, we can understand how such conduct would benefit us personally.
But not a sex offense. Something is different about a sexual offender.
One way to explain sexually deviant behavior has been to include it within the category of mental diseases or defects. Under Wisconsin law, the NGI defense to criminal liability is available in any case where the crime has an element of intent. Again, the theory is that someone who has no concept of right or wrong, or someone who lacked control of their actions at the time should not be held criminally responsible. These people were incapable of the intent to commit a crime.
Although those defendants who successfully show an NGI defense will not be convicted of a felony or misdemeanor, the law requires them to be committed to treatment. This includes commitment to the Wisconsin Department of Health, and may include lifelong treatment, monitoring or institutionalization.
In most cases, sex crimes do not cleanly fit into an NGI category, either. Someone who is convicted of lewd and lascivious behavior — a criminal misdemeanor under the chapter on crimes against sexual morality, commonly used for indecent exposure charges — may have known exactly what he was doing. He may have intended the shock, the humiliation or the embarrassment that the victim felt. But an overwhelming majority of the population would never get any personal reward from the conduct. These offenders have something different about them because they do feel some reward from that conduct. Still, sexual offenders are generally people we want to hold accountable for their actions.
So what happens to the sexual offenders? In each case, the offender goes through the same criminal process as any other offender. He is sentenced to a fine, probation, imprisonment or any combination of the three allowed by statute. Once his sentence is complete, however, the offender must continue to report to the state. He must abide by particular rules similar to those of probation, and some conduct could result in a criminal charge based entirely on his status as a registered sex offender. In effect, the offender remains on "double-secret probation," to quote a famous movie line.
In some cases, where the offense was truly violent, an offender may be committed to an institution through civil proceedings after his release from custody. This, however, is only available for sexually violent persons — again, distinct from those who might be released from a murder or manslaughter sentence. Offenders committed under this chapter of Wisconsin law are held until such time as they are "no longer a sexually violent person."
The sexual offender registry represents a failure of the current theory of criminal justice.
By requiring an extended registration process after sentencing is complete, the state is evidencing its belief that these offenders are more likely to re-offend than violent offenders. While this may be the case, the issue becomes one of establishing appropriate sentences.
If a criminal sex offense is conducted after a choice, then it is something that can be deterred through criminal punishment, and re-offense means that criminal punishment is not lengthy enough to deter that choice. If a criminal sex offense is not a choice, then the current criminal punishment is nothing more than a waste of taxpayer dollars to buy us a few years away from someone who really has a sickness that makes them dangerous to society.
Wisconsin should re-examine the use of the sex offender registry. If it is something effective at preventing future offenses, it should also be used for violent, nonsexually motivated crimes. If it has no bearing on future criminal activity, it is a waste of our time and dollars. The more appropriate way to address the issue is to determine whether the action was a choice or a defect.
Those who have been convicted after a deranged choice should be punished more severely with more time available to do so, and lengthier, open monitoring, instead of mere registration. Those who have been convicted due to a sickness should be removed from society to go through treatment, and should not be released until they are considered a low threat to reoffend, as the “sexually violent” currently are.
Instead, the state has convinced us that we must be vigilant for our own protection. Wisconsin believes that these people are a threat, but releases them anyway. We have the information to keep our children away — not against the purely violent who can live anonymously among us — only against the sexually deviant.
..Source.. by Rik Kluessendorf is an attorney living in Port Washington. He has run a solo practice in the area for about four years, and can be reached by e-mailing rik.kluessendorf@gmail.com or calling 262-355-5466. Attorney at Large is a regular column appearing on Patch, focusing on the legal side of local issues.
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