International Megan’s Law (H.R. 515): Necessary? Constitutional?
Virtually unnoticed, on February 8, President Obama signed a new bill (H.R. 515), International Megan’s Law, requiring that 1) the U.S. Immigration and Customs Enforcement Agency notify foreign officials when a convicted child sex offender is traveling to their country; and 2) the State Department put a “unique identifier” on the passports of persons who have been convicted of a sex crime involving a child (even if they were children at the time themselves and no matter when the conviction arose) who have been listed on a public sex offender registry. A lawsuit challenging the constitutionality of this law has been filed by California Reform Sex Offender Laws (CA RSOL). The plaintiffs include CEOs of major international companies who travel extensively – and innocently – for business.
The bill was signed eight days after it left Congress and four days after it was received by the White House. Supporters say that the law will help prevent sex trafficking by making it more difficult for sex offenders to “[plan] their trips around locations where the most vulnerable children can be found,” in the words of Congresswoman Ann Wagner, who co-sponsored the bill. Critics assert that there has been no connection established between people on sex registries and international sex trafficking; that the branding passports will do nothing to protect the United States from its own sex offenders who, indeed, will be limited in traveling, even for innocuous purposes; that such limitations are unconstitutional; and that the “unique identifier” endangers the safety of such tourists and anyone flying with them. Moreover, a large percentage of people on the registry for child sex offenses were themselves minors when they were convicted, usually of engaging in sexual conduct as with a minor incapable of consent only because of age. Significantly, many Americans use their passports not for travel but simply for identification purposes – and those people will be unfairly subjected to all of the negative consequences of such identification.
A personal observation: Is there no limit to the US urge to stigmatize and punish the other? Is the urge to punish and stigmatize really justified by the desire to help prevent sex crimes in other countries? Shouldn’t that be done by the legislatures of other countries, who might want to restrict the entry of various people and are fully capable of doing so? Reciprocal international efforts to limit sex trafficking are legitimate, but this Act is overbroad, unhealthy, and probably unconstitutional.
Related Readings:
- David Post, The Yellow Star, the Scarlet Letter, and ‘International Megan’s Law’, The Washington Post (Jan. 6, 2016).
- Press Release, Congresswoman Ann Wagner, Wagner Speaks in Support of International Megan’s Law (Feb. 1, 2016).
- Press Release, Florida Action Committee, Lawsuit Filed Against International Megan’s Law (Feb. 9, 2016).
- International Megan’s Law, H.R. 515, 114th Cong. (2016) (summary for H.R. 515).
- Obama Signs Controversial Legislation Designed to Prevent Sex Tourism, NYTLive (Feb. 9, 2016).
- Doe v. Kerry et al., No. 3:16-cv-00654 (N.D. Cal. Feb. 9, 2016) (complaint).
- Lissa Griffin & Kate Blacker, Megan’s Law and Sarah’s Law: A Comparative Study of Sex Offender Community Notification Schemes in the United States and the United Kingdom, 46 Crim. L. Bull. 987 (2010) (SSRN).