Congress Passes the "Adam Walsh Bill" to Protect Children from Abuse: It Is a Good Start, But More Needs to Be Done to Make It Effective

By MARCI HAMILTON


hamilton02@aol.com
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Thursday, Jul. 27, 2006

The United States is in the midst of a civil rights movement for children, and not a moment too soon. Not long ago, children were, in effect, treated as their parents' property, and the law did little to protect them from harm. Today, however, there is increasing legislative movement in their interest, and in particular to protect them from violent crimes. But there is still a long path to travel.

On Tuesday, July 25, the House sent President Bush the "Adam Walsh Bill," which institutes a national database of convicted child molesters, increases penalties for sexual and violent offenses against children, and creates a RICO cause of action for child predators and those who conspire with them. (For more on the potential uses of RICO - the federal Racketeering-Influenced Corrupt Organizations statute -- to combat conspiracies fostering child abuse, see my prior column on the possibility of using the statute against churches that covered up abuse and transferred abusing clergy.)

The bill was backed by John Walsh, of "America's Most Wanted" fame. In 1981, Walsh's six-year-old son Adam was kidnapped and killed. Walsh subsequently founded the National Center for Missing and Exploited Children and dedicated his life to the protection of children. To Walsh's credit, his personal nightmare and what he learned from it have led to great public benefit.

The Adam Walsh Bill is a good law for children, and there is every reason for President Bush to sign it. It keeps child predators in jail longer, increases public information about the location of predators, and opens a new means of bringing predators to justice through a RICO theory. But it is not enough.

Children surely need further protection, on both the state and federal level. And the agency charged with implementing the Adam Walsh Bill, by creating the database, must be careful to ensure that it is not plagued with the same search problems that affect, for example, the Pennsylvania Megan's Law database.

The Inaccuracies in Pennsylvania's Predator Database

The Adam Walsh bill requires convicted child predators to register for an online database, which will be accessible to citizens. Failure to register is a felony.

The closest analogues to the database are the states' Megan's Law lists - some of which are, similarly, searchable online. But ironically, just as Congress pushed through the database provisions of the Adam Walsh bill, an investigative report appeared of how Pennsylvania's Megan's Law List has fared. Unfortunately, there are problems, and they are unlikely to be confined to Pennsylvania.

The problem is this: If there is a single letter misspelled in a perpetrator's name, or in, say, a city name, the system may not identify the abuser. For example, a perpetrator with the last name of Alley would not be found if the state accidentally input "Ally." The Bucks County [PA] Courier Times, whose reporters investigated the system, reported numerous errors: For instance, a search for perpetrators in "Wilkes-Barre," a town in the state, produced a dramatically different number of perpetrators than a search for perpetrators in "Wilkes Barre," with the only difference being the hyphen.

These details, though, could be a matter of life and death. Imagine parents searching to make sure their babysitter, day care center, or friendly neighbor is not on the list - and failing to discover an entry due to an inputter's typo, or a search malfunction!

The answer: Better software, and better inputting (with some double-checking to make sure). And that takes money. Congress has gotten some very positive publicity for creating the Adam Walsh Bill database. Less high-profile, however, will be the annual budget issue of how much money Congress will devote to maintaining the system's database. If we need cutting-edge technology anywhere, it's here.

It will take diligence and fiscal planning on the part of Congress to ensure the database does what it should. That means reporters should follow up on their headlines with careful investigations of how well the database really is working.

Beyond The National Database: Abolishing Statutes of Limitations

Parents also need to remember that the database will not be a truly comprehensive list of predators. It will not have every adult accused of child abuse, because it includes only criminal convictions, and not successful civil lawsuits. In addition, the usual state statutes of limitations - which tend to be very short -- guarantee that a large percentage of predators are never identified.

The federal government ought to consider adding civil lawsuits, and their outcomes, to the database; after all, they are a matter of public record.

More fundamentally, these self-help databases cannot be our main solution to the problem of child predators. Nor can longer sentences and new theories of culpability. All are needed, to be sure, but the fundamental problem at the very base of this issue is the inadequacy of the statutes of limitations. They are the most serious barrier right now to increasing children's safety.

Child abusers typically intimidate their young victims into keeping their crimes secret - often until the expiration of the statutes of limitations. Between predators' intimidation, and the huge psychological toll abuse routinely takes on these victims, it is not realistic to require them to race to the courthouse.

Earlier, and rightly, the federal government abolished the statute of limitations for some crimes against children. But the feds only capture a small number of predators, in the greater scheme of things. The states play the most important role in prosecuting and identifying child abusers.

With state statutes of limitations all too often expiring before victims can reasonably be expected to come forward, predators are getting away with their crimes. The short statutes of limitations

mean that the victim never gets justice, vindication, closure, or compensation, and that literally dozens of future children are put at risk: Predators typically abuse over 100 children in their lifetime. As long as too-short statutes of limitations remain on the books, we, as a society, are aiding and abetting the predators by shutting the courthouse doors before the first wave of victims can make it up the courthouse steps.

Why Reform of the Statute of Limitations Is Crucial: Fixing the Foundation

In the end, no matter how many penalties the state or federal governments pile on, or how detailed and accurate the databases become, we will not have a chance of making the world safe for children until the foundation is fixed: Statutes of limitations for childhood sexual abuse and violent crimes against children must be abolished.

Moreover, as I have discussed in a previous column, a civil statute of limitations "window" needs to be enacted in each state - that is, a period of time during which victims whose statutes of limitations had expired, have a chance to sue. The courthouse doors need to be propped open, and a new sign needs to be hung that reads, "All child abuse victims enter here." Then justice might have a chance against this social malignancy.

Congress Should Condition Funding on State Abolition of Statutes of Limitations

Only through removal of the statutes of limitations in the states will we capture a larger segment of the abusers. And only then, will we as a society learn the names and identities of the apparently "nice guys" (and, occasionally, women) who are right now grooming our innocent children to abuse them. Only then will the databases and the enhanced sentences be as effective as they can be. Only then will we make this society one that is child-friendly, instead of deadly dangerous for its most vulnerable.

The reforms introduced in the Adam Walsh Bill, as good as they are, won't really be effective until state statutes of limitations are abolished. Even though action needs to take place in the state legislatures,

Congress plainly has a role here. It has the capacity to condition federal funding (something it does all the time) on states' abolishing their statutes of limitations and creating "windows." Then, the Adam Walsh Bill will have the capacity to fully serve the purpose for which it was passed.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Her email address is Hamilton02@aol.com. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).

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