Monday, October 16, 2017
Blanche Bong Cook (Wayne State University Law School) has posted Complicit Bias: Sex Offender Registration as a Penalty for Obstructing Sex-Trafficking Prosecutions (Preliminary Draft) (Nebraska Law Review, Vol. 96, p. 138, 2017) on SSRN. Here is the abstract:
As a matter of statutory interpretation, it is unclear whether criminal defendants who obstruct federal sex-trafficking prosecutions must register as sexual deviants on the national sex offender registry when the defendants do not directly engage in sex trafficking. This unresolved legal question presents a tangled web of statutory construction. At best, the anomaly results from a congressional drafting oversight in the Sex Offender Registration and Notification Act (SORNA). At worst, requiring defendants to register as sex offenders where they have solely engaged in obstruction may reflect a legislative and prosecutorial overzealousness emblematic of the War on Crime and the War on Drugs, which have made the United States the most carceral nation in history and which may undermine the very purposes of SORNA. Moreover, sex trafficking victims who refuse to cooperate against their assailants risk exposure to mandatory registration if they are convicted of obstruction, an outcome completely incongruous with the purposes of SORNA or the federal sex trafficking statute. The overuse and abuse of SORNA, embodied in mandating obstructionist registration, unmoors SORNA from its legitimate concerns, purposes, and justifications. No court has addressed the issue. Ultimately, congressional intervention is fundamentally necessary to make clear that pure obstructionists are not required to register under SORNA.