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Should Passports List Sex Crime Convictions?

Dec 11, 2017 by Mike McKneely in Criminal Defense, Sex Crimes

In early November, the passports of people convicted of a sex offense against a minor had the following message inscribed on the back inside cover, “the bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(1).”

This inscription does not amount to a prohibition on travel, but it will result in severe consequences, if not embarrassment, to the passport bearer. For example, the Alliance for Constitutional Sex Offense Laws reports that one American businessman can no longer travel to Iraq for work, because the authorities might put him to death if they see that he was convicted of a sex crime against a minor.

The law, known as the International Megan’s Law, will have a widespread impact. There are over 700,000 registered sex offenders in the country, and each of them may eventually be affected by the new passport inscriptions.

If you or a loved one have been convicted of a sex crime and are concerned about how this new law will affect how and where you travel, call a Fresno sex crimes attorney from Michael McKneely, Criminal Defense Lawyer at (559) 443-7442 for a free case consultation.

The Initial Challenge to the International Megan’s Law Has Failed

The intent behind marking the passports of sex offenders is “to protect children and others from sexual abuse and exploitation, including sex trafficking and sex tourism.” But according to Janice Bellucci, founder and executive director of the Alliance for Constitutional Sex Offense Laws (ACSOL), the law puts in place a dangerous precedent. Other minorities may eventually have their passports marked, she suggests.

Accordingly, the ACSOL sued the federal government on behalf of several citizens who would be affected by the law. Specifically, the lawsuit claimed that the law:

  • Violates the first amendment
  • Imposes retroactive punishment
  • Violates substantive due process
  • Denies equal protection

The lawsuit did not get far. Chief Judge of the United States District Court for the Northern District of California Phyllis Hamilton dismissed the case, finding no merit in any of the plaintiffs’ arguments, because:

  • There is no first amendment violation because “the information contained in a passport is unquestionably government speech,” as opposed to the protected speech of a citizen.
  • The penalty is not retroactive, because the registration of sex offenders is not a punitive measure.
  • There is no valid procedural due process claim, because sex offenders are only required to register after they’ve had the chance to clear their name during a criminal trial.
  • The substantive due process and equal protection claims would fail, because all the government needs to show is that there is a rational purpose for enacting the law, regardless of whether its effects are fair or not.

The fact that the International Megan’s Law is overly broad and will disrupt the professional and personal lives of convicted sex offenders who have already served their time, is not a legally valid argument. It doesn’t matter that many of the affected sex offenders were minors themselves when they were convicted of sexual intercourse with a minor, or that some of them were convicted of relatively benign crimes such as public urination or streaking. According to Judge Hamilton, “under rational basis review a law may be overinclusive, underinclusive, illogical, and unscientific and yet pass constitutional muster.”

Are There Other Ways to Overturn the International Megan’s Law?

The Alliance for Constitutional Sex Offense Laws may succeed in challenging the law from a purely procedural perspective. The Administrative Procedures Act requires government agencies to publish regulations before implementing a new law. With the International Megan’s Law, the State Department should have given the public the opportunity to comment on the wording of the passport inscription. After hearing these comments, then they could finalize the language.

Instead of having public hearings, the State Department simply issued a press release announcing the language that it would include in the passports of sex offenders. According to ACSOL Executive Director Janice Bellucci, “it appears that the State Department press release may be in violation of federal law which requires agencies to issue regulations before making decisions such as the language and placement of a unique identifier on a registrant’s passport.”

In extraordinary circumstances, however, an agency is allowed make new rules in response to legislation without considering public comments. The State Department claimed that it faced extraordinary circumstances in implementing the International Megan’s Law. A court will need to decide whether such circumstances existed.

Michael McKneely, Criminal Defense Lawyer Can Help

At Michael McKneely, Criminal Defense Lawyer, we are passionate about defending the rights of individuals charged with wrongdoing at every stage of the criminal justice process. A conviction can turn your life upside down, as registered sex offenders know all too well. If you are facing sex crime charges, you need to fight back now with the assistance of Fresno criminal defense lawyer Mike McKneely.

Contact us today (559) 443-7442 for your free and confidential consultation.

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