Privacy in the Age of Fear

On January 21, New York State became the 20th state in the nation to enact a law that requires convicted sex offenders to register with the authorities and mandates some form of community notification. New York's law applies to over 3,000 convicted sex offenders on parole or probation, all of whom must register with the local authorities and many of whom will be reported to institutions like women's shelters and schools as "high risk" offenders. New York's law is based on a more extreme New Jersey statute, commonly known as Megan's Law. This law was enacted after a 7-year-old girl named Megan Kanka was raped and killed by a neighbor who, unbeknownst to the community, was twice convicted for sex offenses. These new laws, some of which are being challenged in states including New Jersey, bring to the fore a number of troubling questions about the role of individual rights in our country's legal and moral code.

The basic and obvious issue that is being argued is the primacy of community safety over individual rights. These laws have maintained that the public's right to information about potential danger supersedes the individual's right to privacy. Although there certainly are instances when the needs of the community displace the values of individual choice-the well-known example of calling fire in a crowded theater is only one of many such laws-this law represents a new phase in the primacy of the community.

The issue at hand is not actual danger, but the supposed capacity for danger. Although sex offenders have an unusually high rate of recidivism, there is no guarantee that any particular person still poses a threat to the community. Nonetheless, the sex offender laws maintain that the potential risk is so great that it is worth eschewing the fundamental American value of privacy.

Underlying the battle over the New York state law are two important questions. The first is logistical: even if we decide that the public has to safety, will knowing about the location of all sex offenders really increase community security? What about those criminals with lower prospects of recidivism? An oft-voiced critique of the new law, as New York Times writer Monte Williams expressed on Saturday, Feb. 24, is that it is "drawn so broadly that it includes people who do not appear to threaten public safety...effectively painting all sex offenders with the same brush." The result of this flattening of serious distinctions between sex crimes is that sex between a fifteen year-old and her nineteen year-old boyfriend, otherwise known as statutory rape, is held under similarly close scrutiny as the violent rape of a young girl--a ridiculous state of affairs, to say the least.

However, there is a more fundamental question that underlies the new law. Even if such a mandate will help, are we reverting back to some kind of Hester Prynne morality where one sin brands you for life with the Scarlet Letter of sexual ignominy and security-risk? This law represents the ultimate rejection of the possibilities of atonement. The small lettering of this law reveals a return to a system where the policy is: once a sex offender, always a sex offender, with no method of paying for the crime or beginning anew.

One could say that the perpetrator's punishment is no heavier than the burden that his or her victim will have to carry. For the victim, there is no possibility of waking up one morning and no longer having been abused. However, as rhetorically compelling as this argument may be, it is not satisfying. Although the victim will have to live forever with the sexual abuse, there is the possibility of privatizing the experience, of healing and of moving on. It is this option that, according to the new laws, will no longer be available to the criminal. There is no prospect of internalizing the action and changing if one is always marked and publicly identified.

The permanence inherent in the law highlights its implicit social critique: our penal system has disintegrated to such a point that it serves no purpose except to keep the criminals off the street. A person walking out of jail is no better than he or she was before entering. Whereas jail was once seen as a place for penitence and growth, where people who went wrong could change themselves and improve, we now associate jail with an overly expensive and dangerous cage. In jail little of value occurs; instead, increased rage is generated. Those who emerge from the prison doors are now greeted with the black rose of society in the form of an inescapable reminder of their past crimes.

Although the questions of individual rights and effectiveness will be battled out in courtrooms and newspapers across the country, the more important issue is the loss of faith in our society and in its institutions that is the driving force behind the new laws. We are so frightened of the unknown dangers lurking in our neighbor's--and our own--homes that we are willing to reject the founding belief in an individual's privacy in our quest for the ever-elusive safety.

Feelings of impotence born of the inability to protect those we love--Megan, the young girl whose name lives on in the law her death inspired, is a case in point--have led us to gloss over complexities and grasp at the closest semblance of security, even if in the process we destroy the sacred values of our society and brand people forever. Perhaps the saddest testament to our feeling of disintegration is that we are willing to give up on the possibilities of personal change to secure even a modicum of societal stability.

There have been other moments in our country's history when a potential threat to the safety of the community led to a limitation of individual rights. During World War I, the Sedition Act and the Espionage Act censored antiwar sentiments and restricted free press and free speech. At the height of the Cold War, supposed Communist leanings were grounds for arrest. In all these instances, the United States was at war against a specific enemy for a particular cause. Unfortunately, our war is not so clearly delineated. Our only enemy is ourselves, the war is indefinite and our cause is painfully and dangerously vague.