On 8 February 2016, President Obama signed into law the “International Megan’s Law,” the latest legislation to impose more restrictions on Americans’ freedom to travel abroad. As usual, the focus of the hype and hysteria is the “sex tourism” bogeyman.
How does the government seek to safeguard the vulnerable with this statute? By making it more difficult for American convicted sex offenders to leave the country. Those who have actually perpetrated serious violent crimes against minors will also face additional obstacles in their efforts to emigrate from the U.S. Meanwhile, those who get caught committing victimless sex offenses and want to start a new life abroad in a less prudish and authoritarian regime will have a harder time doing so.
Specifically, the International Megan’s Law requires anyone who has been convicted of a sex offense against a minor to, before traveling abroad, notify the federal government of “anticipated dates and places of departure, arrival, or return, carrier and flight numbers for air travel, destination country and address or other contact information therein, means and purpose of travel, and any other itinerary or other travel-related information”.
This information will then be transmitted to the destination country’s government so their immigration bureau can deny the traveler admission if they wish. Those who get caught trying to sneak out of the U.S. without alerting the feds will be subject to a 10-year prison term, even if there was no evidence they intended to engage in sex tourism. The law also mandates that all American offenders’ passports have a “visual designation affixed to a conspicuous location on the passport indicating that the individual is a covered sex offender”.
The law is named after seven-year-old New Jersey resident Megan Kanka, whose rape and murder by a neighbor would not have been prevented by restricting Americans’ freedom to travel overseas.
How this law could ensnare American men for normal, consensual sexual behavior
How might this law affect men who have no interest in victimizing anyone, and just want to have a normal, satisfying sex life with attractive women of legal age to consent to sex? Imagine this scenario:
You’re an 18-year-old guy with a 17-year-old wife, legally married under the laws of your state. One day when you’re at work, she sends you a sexy text of herself posing coyly in a bra and panties. Seeking inspiration to get through the dull workday, you reply with a text inviting her to “send more”.
A few weeks later, you drop your mobile phone off at the mall to get a crack in the screen fixed. The repair technician gets nosy, looks through your photos and texts, and reports to the National Center for Missing & Exploited Children that he’s found a photo of an underage-looking girl engaging in sexually explicit conduct.
At 5 a.m. the next morning, federal agents bust into your bedroom shouting “Freeze! Police!” and take you into custody at gunpoint. You hear the sound of their boots echoing through the apartment as they rifle through your belongings, seizing computer equipment, flash drives, etc. and try to question your wife as she stands there wrapped only in a blanket.
As a first-time offender, you’re able to get the prosecutor to drop the child pornography production charge and let you plead out to receipt of child pornography. The judge receives dozens of letters from your friends and family (including your wife, the “victim”) vouching for your good character and pleading for lenience, but the judge’s hands are tied by the mandatory minimum, and you get a sentence of 5 years. With credit for good conduct, you’re released in a little over 4 years.
But, although you’ve finished serving your debt to society, you’re still not a free man. Federal law and sentencing guidelines call for sex offenders to receive a lifetime sentence of supervised release (see 18 U.S.C. § 3583(k) and U.S.S.G. §5D1.2(c)). They also say that the judge should require, as part of your conditions of supervised release, that you register as a sex offender, undergo sex offender treatment, submit to computer monitoring, and allow your probation officer to search your “person and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects” whenever he sees fit (see U.S.S.G. §5D1.3(a)(7) and (d)(7)).
Your probation officer installs monitoring software on your computer to record every keystroke you make, every website you visit, every email you send, etc. so that they can compile evidence of any sexually deviant interests, or any thoughts you express that could be viewed as “rationalizing” why your sexual behavior wasn’t as bad as the government claimed it was. All this goes into a file to be shared with your psychological treatment team so that you can be “held accountable.”
Since you live in one of the states that requires that employment information of sex offenders be posted online, and the court won’t allow you to move out of that state, you find it hard to hold a job, as “concerned citizens” are constantly looking you up in the registry and harassing your employers. Your kids get bullied at school by peers who find out from the registry that their dad is a convicted child porn offender.
Seeking freedom and a better life for your family, you finally decide to take the desperate step of fleeing the country. You buy plane tickets and head to the airport with your wife and kids. But just as you’re about to get on your flight, U.S. Marshals and Homeland Security agents slam you to the ground and slap cuffs on you. It turns out that under the International Megan’s Law, just by attempting to leave illegally, you’ve committed a felony punishable by a decade in prison, on top of the prison sentence for violating your supervised release.
It’s part of a trend of similar encroachments on freedom of movement
The International Megan’s Law is just the most recent in a series of laws cracking down on the ability of Americans who have found good reasons to be disgruntled with their country’s leadership to vote with their feet. The Fixing America’s Surface Transportation (FAST) Act, signed into law last December, allows the State Department to revoke or deny passports for anyone the IRS certifies as having a seriously delinquent tax debt in an amount in excess of $50,000. What will the next restrictions on emigration be?
Immediately after the International Megan’s Law was enacted, California Reform Sex Offender Laws (RSOL) filed a lawsuit challenging its constitutionality on First and Fifth Amendment and ex post facto clause grounds. In a piece written by David Post and posted on the RSOL blog, the author notes the parallels between our era and an earlier one:
On October 5, 1938, the Third Reich directs its Ministry of Interior to invalidate all passports held by Jews until the letter ‘J’ was affixed to them. Less than 80 years later, and on February 8, 2016, the American Congress directs the Department of State to invalidate all passports held by sexual offenders until a ‘unique identifier’ is affixed to them.
Convicted sex offenses are serious crimes and should be treated as such. However, it is easy to see how the desire to punish an extremely small minority of society can have major implications for others who do not deserve such persecution. If history is any indication, a unique identifier will not be the last step in the government’s larger plan for dealing with those who serve as a handy scapegoat for societal problems.
Read More: Why Men Who Travel For Sex Are Not Evil