Legislative Memo: In Relation to Prohibiting Sex Offenders from any Position involving Substantial Contact with Children

This legislation would prohibit the employment of a registered sex offender in any position having substantial contact with children, where “substantial contact” is defined as any activity involving children.

The NYCLU opposes A.4151/S.260 for four reasons: (1) The bill fails to distinguish between registered offenders who pose a risk to children and those who clearly do not; (2) the definition of “substantial contact” with children bar a registered offender from almost every type of employment; (3) there is no demonstrable relationship between where registered offenders work and the likelihood they will reoffend; and (4) this type of employment restriction prevents individuals who pose no foreseeable risk to public safety from successfully reentering society.

Creating statutory restrictions on employment opportunities for registered sex offenders will do little, if anything, to prevent future sexual attacks against children.

Indeed, such legislation may well undermine public safety. Research demonstrates that the ability to hold a steady job significantly reduces the likelihood a registered sex offender will re-offend.

Moreover, restricting employment opportunities may exacerbate stressors on a former offender, increasing the possibility he will re-offend. Employment restrictions should be imposed, if at all, on a case-by-case basis, in light of an individual’s life history and psychological profile.

Introduction

Sexual abuse crimes are tragic, particularly when they involve children. It is an understandable human response to such tragedies to want to do everything possible to prevent situations that present the risk that children will be subjected to sexual abuse. Employment restriction laws are advanced by those who believe it is necessary to restrict where sex offenders can work in order to protect children from being victimized.

However, employment restriction laws are premised on several inaccurate assumptions about the reoffense rate of sex offenders; these laws are overbroad, which limits the employment opportunities of individuals who pose no threat whatsoever to public safety.

These restrictions also prevent sex offenders from engaging in employment, a meaningful and significant part of reintegration after incarceration. Finally, because they may lead to unemployment and economic hardships, employment restriction laws may actually increase the likelihood that the small percentage of sex offenders who are at risk of reoffense will offend again.

Currently, an individual offender’s specific probation or parole terms may limit where he can work while he is on parole. Beyond individual limitations, state law prohibits registered sex offenders from working on an ice cream truck while they are on the sex offender registry,[1]  and warns offenders that they will likely not be hired for other types of employment.[2] 

Recognizing the value of employment, New York has taken a strong stance toward promoting employment after incarceration by prohibiting employers from discriminating on the basis of a criminal conviction, unless the criminal activity would have some bearing on the job functions.[3]

Nevertheless, a wide variety of employers routinely check the criminal records of prospective employees and deny employment to those with criminal backgrounds. [4]  Former felons face widespread job discrimination: in December 2007, the New York City Department of Probation estimated that half of the 32,000 individuals on probation in New York City were unemployed.[5] 

This bill would result in even more widespread unemployment because it broadly restricts offenders from employment in a setting in which they may come into contact with children.

The Proposed Legislation is Dramatically Overbroad

This bill is an overly broad because it applies to registered sex offenders because they apply to registered sex offenders who have not committed crimes that involved or posed a threat to children.

Laws that prohibit registered sex offenders from working near children are often premised on the idea that individuals who have committed sexual crimes pose a threat of reoffending if they are around children. However, there are many individuals who are required to register as sex offenders even though their crimes did not involve children.

For example, teenagers convicted of engaging in consensual sex with other teenagers are required to register as sex offenders.[6]  It is illogical to enact broad work restrictions that apply to individuals who never committed crimes related to children.

Recognizing that no two individuals with a prior offense pose the same risk of reoffending, New York State classifies sex offenders based on a risk assessment.[7]  The law imposes graduated restrictions that are intended to reflect the potential threat to public safety posed by a former offender.[8]  Nevertheless, several of these bills[9]  would apply to all levels of registered offenders, notwithstanding that level 1 and level 2 offenders have been determined to have engaged in less violent crimes; are less likely to have committed crimes against children; and have been determined to present a lower likelihood of offending again.[10] 

While level 1 offenders are only subject to sex offender registry requirements for 20 years, at least one of the pending bills appears to apply to such offenders even after the terms of their registry requirements have ended.[11]

Such broad employment restrictions are illogical even as applied to level 3 registered offenders. There are a variety of factors reflected in a risk assessment; not all level 3 offenders committed crimes that involved children. Moreover, not all sex offenders are the same and there needs to be an individualized assessment of which types of jobs make sense for different individuals in light of the nature of their prior offense.

Instead of imposing blanket restrictions, the Center for Sex Offender Management advises that a “case-by-case assessment of offenders, their relapse triggers (through consultation with their treatment providers), and their job placements provide a more realistic understanding of the suitability of certain jobs for specific offenders.”[12]

Finally, S.260/A.4151 is drafted so broadly that it would bar registered sex offenders regardless of their risk level from almost every conceivable type of employment. The bill’s definition of “substantial contact” as “any activity involving children” could apply to nearly every type of job.

This extremely broad restriction could include everything from working in a restaurant to being a janitor in an office building or taking tickets at a movie theater. In the current economic climate, such a broad restriction may well operate to prevent registered sex offenders from obtaining employment altogether.

Employment Restrictions are Unlikely to Reduce Reoffense Rates

This bill is predicated on two false assumptions about sex offenders: (1) that they reoffend at a high rate, and (2) that if they work in proximity to vulnerable populations, they are likely to reoffend. Neither of these assumptions is accurate. Although the bill is no doubt a well-intentioned attempt to protect children, employment restriction bills are unlikely to prevent future sexual assaults.

Sex Offenders do not Reoffend at a High Rate

Employment restriction laws assume that it is necessary to keep sexual offenders away from specific groups of people in order to prevent them from reoffending.

In fact, recidivism rates among sex offenders are significantly lower than recidivism rates among people convicted of other felonies. One long-term study of individuals convicted of sexual crimes in New York found that just 2% of the 12,863 released inmates who served time for a sex offense were subsequently convicted of another sex crime.[13]

The most recent study by the Bureau of Justice Statistics found that only 3.3% of people convicted of violent sexual offenses against children were rearrested for a new sex crime within three years of their release (the time during which most re-arrests occur).[14]  In comparison, the Bureau of Justice Statistics found that re-arrest rates for property offenders and drug offenders were 73.8% and 66.7%, respectively.[15]

The vast majority of people arrested for child sexual abuse are not repeat sex offenders, but first-time offenders.[16]  One study of sex offenders in New York found that 96% of people arrested for sexual crimes were first time offenders. The same study found that 94% of all arrests for child molestation were of individuals who had never previously been arrested.[17] 

The majority of sexual crimes are not committed by individuals who previously committed sexual offenses. Therefore, laws such as these which target individuals who have been convicted of sexual crimes are unlikely to be an effective tool in deterring future sexual crimes.

The Majority of Sexual Crimes are not Committed by Strangers

An underlying assumption of this bill is that sexual offenders are likely to reoffend when in proximity to potential victims. According to the New York State Division of Criminal Justice Services, it is a “myth” that “child molesters spontaneously attack when they see a vulnerable victim.”[18]  In fact, 93% of sexual assault victims under the age of 17 are assaulted not by a stranger, but by a family member or an acquaintance.[19]

The overwhelming majority (70%) of sexual assaults take place not at a stranger’s home or in a public place, but within the residence of a victim.[20]  These facts illustrate that it is not the school or movie theater employee, for example, who represent the greatest potential threat of child sexual abuse. Resources would be better allocated educating parents about the threat of sexual abuse posed by acquaintances and family members.

III. This Legislation is Likely to Increase Reoffense Rates

For 20 years, studies of former offenders have concluded that unstable employment is one of the factors consistently associated with repeat criminal behavior.[21]  The same has proven to be true among individuals convicted of sexual crimes.

The Center for Sex Offender Management advises that “meaningful employment can provide a stabilizing influence by involving offenders in pro-social activities and assisting them in structuring their time, improving their self esteem, and meeting their financial obligations.”[22]

One study found that released sex offenders with stable employment were 37% less likely to reoffend than released offenders with unstable employment.[23]  The same study also found that the risk of reoffense was 50% lower for offenders engaged in both secure employment and treatment.

The study ultimately concluded that “for the small number of respondents whose reoffense was a new sex offense, the only factor that even marginally reduces their risks of reoffending is the combined effect of stable employment and sex offender treatment.”[24]  Conversely, sex offenders who are not regularly employed recidivate at higher rates.[25]

Being able to engage in work is essential to successful social reintegration after incarceration. Work provides structure and meaning to people’s lives, and enables individuals to earn a living and support their families. All of these things are essential to rebuilding a life after being released from prison.

Employment restrictions pose a threat to both sex offender treatment and to the fundamental right to engage in meaningful work. Sex offenders are already likely to be discriminated against in applying for jobs,[26]  even when an offender’s crime had no bearing on the nature of the job.[27]  These bills would add to the already enormous challenges that released sex offenders face in finding work by excluding them from broad sectors of employment.

Job stability “significantly reduces the probability of reoffending among convicted sex offenders.”[28]  Any laws aimed at advancing public safety should seek to help released sex offenders in finding meaningful employment, not broadly exclude them from almost every possible job opportunity.

Conclusion

Legislation restricting employment opportunities for registered sex offenders will not prevent future sexual attacks against children. Moreover, they may exacerbate stressors for the small percentage of registered offenders who pose a threat of reoffense. Employment restrictions should be imposed, if at all, on a case-by-case basis, in light of an individual’s life history and psychological profile.

Broad restrictions placed upon employment options exclude sex offenders from engaging in meaningful work, which undermines successful reentry into family and community. For these reasons, the NYCLU urges legislators to vote against this bill.
 

[1]  See New York Corrections Law §168-v.

[2]  In a “Frequently Asked Questions” section on it’s website, the NYS Division of Criminal Justice Services warns: “Many employers must obtain fingerprints and do background checks for certain occupations (such as teachers or school bus drivers, for example). If an individual has been found guilty of certain crimes, he or she will not be hired.” Available at http://criminaljustice.state.ny.us/nsor/faq.htm

[3]  See N.Y. Exec. Law § 296(15); N.Y. Correct. Law §§ 750 to 753.

[4]  See Legal Action Center, After Prison: Roadblocks to Reentry.  A Report on State Legal Barriers Facing People with Criminal Records, 2009 Update. 

[5]  The City of New York Department of Small Business Services, Request for Proposals for Employment Initiative for New York City’s Probation Population, 2007[6]  See New York Correction Law § 168-a.

[7]  Level 1 offenders are determined to pose the lowest likelihood of reoffense, and level 3 offenders present a high risk of reoffense and “a threat to public safety.” New York Correction Law § 168-l(6)(c).

[8]  See New York Correction Law § 168-l. New York’s Risk Assessment Guidelines, the instrument used to evaluate and assess sex offenders, are seriously flawed. See Laurie Guidry, Doe v. Pataki: Court Offers 9,000 Sex Offenders Opportunity to Appeal Risk Level, The Alliance (Quarterly Publication of the New York State Alliance of Sex Offender Service Providers), vol. 7, issue 1, Winter 2004/2005. They were developed prior to scientific research that establishes clear correlations between particular characteristics and behaviors of an offender and a propensity to re-offend.  Courts are beginning to note that New York’s assessment system is flawed. See, e.g., People v. MacFarland, 29 Misc.3d 1206(A) at *12, *15 (N.Y.Co. 2010) (“RAI is not a valid risk assessment instrument” and it produces results which are “obviously irrational”).

[9]  A.2086-A/S.1857-A states that “no person required to maintain registration under this article…shall be a trustee…of any public school”; A.4151/S.260 states that “no sex offender shall apply for or accept a position which involves substantial contact with children.” Neither bill limits its proscriptions to offenders with high risk assessment levels.

[10]  See New York Correction Law § 168-l (5).

[11]  A.4151/S.260 states that “no sex offender shall apply for or accept a position”; as compared to New York Correction Law § 168-v which limits the prohibition on working on “motor vehicles engaged in retail sales of frozen desserts” to individuals “required to maintain registration under this article (sex offender registration act).”

[12]  Center for Sex Offender Management, Time to Work: Managing the Employment of Sex Offenders Under Community Supervision, U.S. Dep’t. of Justice (2002). The federal government has recognized the value of post-release employment by enacting the Work Opportunity Tax Credit, which provides a tax benefit for employers who hire ex-felons within one year of release from prison.

[13]  See Leslie Kellam, 2001 Releases: Three-Year Post Release Follow Up, State of New York Department of Correctional Services (2002).

[14]  See R. Karl Hanson & Monique T. Bussiere, Predicting Relapse: A meta-analysis of sexual offender recidivism studies, Journal of Consulting and Clinical Psychology (1998).

[15]  Patrick Langan, Recidivism of prisoners released in 1994, Bureau of Justice Statistics (2002).

[16]  See Jeffrey C. Sandler et al., Does a Watched Pot Boil? A Time Series Analysis of New York State’s Sex Offender Registration and Notification Law, Psychology, Public Policy and Law (Nov. 2008).

[17]  Id.

[18]  New York State Division of Criminal Justice Services, Sex Offender “Myths and Facts,” available at http://criminaljustice.state.ny.us/nsor/som_mythsandfacts.htm

[19]  Howard N. Snyder, Sexual Assault of Young Children as Reported to Law Enforcement: Victim, Incident and Offender Characteristics, Bureau of Justice Statistics (2000).

[20]  Id.

[21]  See Paul Gendreau, et al, A Meta-Analysis of the Predictors of Adult Criminal Recidivism: What Works, Criminology (Nov. 1996).

[22]  Center for Sex Offender Management, supra note 17.

[23]  Candace Kruttschnitt, et al, Predictors of Desistance Among Sex Offenders: The Interactions of Formal and Informal Social Controls, Justice Quarterly (2000).

[24]  Id.

[25]  Virginia Criminal Sentencing Commission, Assessing Risk Among Sex Offenders in Virginia, (Aug. 2007). See also, Center for Sex Offender Management, supra note 17.

[26]  See Legal Action Center, supra note 4. 

[27]  It is illegal for a private or public employer to discriminate against an employee because that person has “been previously convicted of one or more criminal offenses, or by reason of a finding of lack of good moral character.” New York Corrections Law § 752.

[28]  Kruttschnitt, et al, supra note 23.