U.S. Congress Close to Restrictions on International Travel for Sex Offenders – Amendment to House Resolution 2848

Laws putting restrictions on international travel for sex offenders are proliferating across the United States. Many lawmakers say controlling where a sex offender may live and physically be increases public safety by making it more difficult for this unpopular segment of society to have access to “vulnerable” populations, namely children. Other legal practitioners and mental health professionals say these so-called “designer laws” not only have little effect on protecting the public, they are actually counterproductive to public safety by further isolating and ostracizing a sex offender from reintegration into society and creating huge obstacles that deter his or her return to a positive, law-abiding lifestyle.

The public seems to overwhelmingly support any and all laws aimed at more restrictions on people required to register as sex offenders. Often overlooked or cared about is whether these restrictive public policy measures are constitutionally permissible.

Can a Registered Sex Offender Travel Outside of the United States?

U.S. sex offenders are not currently restricted on where they can travel internationally. However, that could change if a New Jersey Congressman gets his way.

A new amendment to Megan’s Law that restricts the passports of U.S. citizens convicted of sex crimes was unanimously approved by the House Foreign Affairs Committee on Aug. 1. Representative Chris Smith (R-New Jersey) wrote the amendment, which is now part of the U.S. State Department authorization bill H.R. 2848.

According to Rep. Smith’s public policy director, Jeff Sagnip, the amendment is likely to be approved as it is attached to a larger piece of legislation, House Resolution 2848 (HR2848). Congressman Smith’s amendment allows the U.S. Secretary of State discretion to limit the valid duration of passports for convicted sex offenders listed on the National Sex Offender Registry to one year. Passports are generally valid for up to 10 years. The amendment also gives the Secretary of State the power to revoke the passport of an individual convicted by a court of a sex offense in a foreign country.

Unaddressed by the House Foreign Affairs Committee or Rep. Smith’s office is how the U.S. Secretary of State has any authority to restrict a U.S. citizen’s fundamental right to travel, whether interstate or abroad.

What’s the Problem with the Amendment to HR2848?

The amendment to HR2848 is vague and overbroad. This amendment has the potential to face considerable constitutional challenges at the federal level because it overreaches to include anyone convicted of a sex offense and is not narrowly tailored to fulfilling a legitimate government interest. In effect, this amendment violates due process and equal protection rights guaranteed by the 14th Amendment by “convicting” all sex offenders of illegal behavior in foreign countries prior to actually having committed a crime.

While the measure is intended to be preventative, it is also potentially unconstitutional. Moreover, there is a question of what authority permits the U.S. to regulate the travel of anyone, particularly of a U.S. citizen, outside U.S. borders.

What is the International Megan’s Law?

Smith wrote legislation in 2010 and again in 2011 called The International Megan’s Law. The bill established a model for international law enforcement notifications when convicted U.S. sex offenders enter into or return from other countries. Essentially, the bill would have required a sex offender to register within the jurisdiction of every country he or she travels to and spends more than 30 consecutive days in, or spends 30 days or more in a six-month period. This bill and other similar bills have been passed by Congress but have not been approved by the President.

Why Put Restrictions on International Travel for Sex Offenders?

The amendment’s purpose is to reduce the occurrence of human trafficking. It would apply to every registered sex offender, regardless of his or her criminal offense. It does not matter whether a registrant was convicted of a crime committed against a child or whether his or her offense involved human trafficking. The amendment would make human trafficking a registerable sex offense, whether or not a victim was sexually exploited or not.

The U.S. Bureau of Justice Assistance, though it’s Anti-Human Trafficking Task Force Initiative, reports the following:

• Human trafficking is considered to be one of the most profitable and fastest growing offenses orchestrated by organized crime;
• Human trafficking involves the enslavement of thousands of people, mostly women and children, within the United States and perhaps millions of people outside U.S. borders;
• Human trafficking is a crime that preys on the world’s most vulnerable people.
• Children are sexually exploited for commercial purposes;
• Human trafficking is to compel people (whether citizens, legal residents, or persons having entered the country illegally) to labor or provide services through force, fraud or coercion;
• Human trafficking is also taking from a person his or her travel documents (passports and/or visas) to compel that person’s labor or services.

The United States is a Popular Destination for Human Trafficking Victims

The United States is generally a destination for trafficking victims who are recruited in their home countries and transported through other countries. But movement is not required for human trafficking to occur. Many U.S. citizens are also trafficked; usually run-away teenage girls who are preyed upon by pimps and trafficked for prostitution. Investigating human trafficking is among the top priorities of the U.S. Department of Justice.

U.S. lawmakers are jumping on the bandwagon to create legislation to curtail this illegal practice, concentrating their legislation so that it is aimed at registered sex offenders whom they perceive to be more likely to commit human trafficking crimes. However, the facts do not support this position.

Most New Sex Offenses are Not Committed by Registered Sex Offenders

No one advocates kidnapping women or children for the purpose of being sold into slavery, particularly as sex slaves. But lawmakers ignore the fact that the re-offense rate for offenders convicted of violent sexual assaults (adults and children) is reported at 5.3 percent. Non-violent sex offenders, such as those who had consensual sex with a 16 or 17-year-old, indecent exposure, and “sexting” (child pornography production, distribution or possession) reoffend at an even lower rate, yet make up a huge portion of the over 750,000 children and adults in this country who are also required to register as a sex offender.

Which means about 95 percent of new violent sex crimes are being committed by suspects not required to register.

The unintended consequence of restricting a registered person’s passport is that it presumes he or she will commit a new sex crime in a foreign country. Rep. Smith’s amendment to HR2848, if it ultimately becomes federal law, would be to deny fundamental constitutional rights to otherwise law-abiding people based on a presumption and predicated by an irrational fear that all sex offenders are violent sexual assaulters or child sex traffickers.

What Can be Done to Make Sure the Amendment to HR2848 Actually Helps to Decrease Incidences of Human Trafficking?

Citizens of the United States are urged to contact their Congressman and both of their U.S. Senators to ask them to vote that the amendment to HR2848 giving authority to the U.S. Secretary of State to restrict or revoke a registered person’s passport be either deleted or modified. The proposed legislation would have greater impact if it were limited to registered sex offenders previously convicted of human trafficking or of an international sex crime.