Sex offender laws have spiraled out of control in recent years. Yet, despite the irrationality and punitive nature of many of these laws, courts have overwhelmingly sided with states in constitutional challenges. However, recent case law suggests that courts may no longer be willing to give states the benefit of the doubt where substantial individual rights are implicated. In Doe v. Prosecutor, Marion County, Indiana, the Seventh Circuit struck down an Indiana law that banned certain registered sex offenders from using social media websites, finding the law facially unconstitutional under the First Amendment. This comment argues that the court correctly refused to allow Indiana to place such a heavy burden on First Amendment freedoms when the state could not show that the harm it sought to prevent was real, that the law targeted only those offenders likely to present a risk, or that the law would actually make the public safer.
Although the law overturned in Doe was somewhat unique because of the clear First Amendment implications, the Seventh Circuit's reasoning coincides with an emerging trend in courts to require that sex offender legislation not overly burden individual rights without a strong basis for doing so. This trend is significant because modern sex offender legislation is often reactionary, based upon myth and fear rather than a legitimate effort to protect the public. In fact, recent research suggests that many modern laws do little to make the public safer and certain laws may even increase the likelihood of recidivism.
This Comment argues that society's special hatred for sex offenders has led not only legislatures but also courts to make questionable decisions, some of which may now be vulnerable to legal challenge in light of new research and recent case law. To stave off constitutional challenges, legislatures should ensure that sex offender laws are based on empirical evidence and reasoned discussion. This approach will make the public safer and prevent unnecessary trammeling of constitutional rights.
Friend Request Pending: Does a Rare Victory Before the Seventh Circuit Mean Sex Offenders Will Finally Receive Fair Treatment from Courts?,
Seventh Circuit Rev.
Available at: http://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol8/iss2/6