I read a news story recently about a couple with three children in Arlington, Iowa, who were arrested on child endangerment charges for, as Radio Iowa put it, “letting a sex offender live in their home.” While investigating a theft case involving twenty-nine-year old Julia Rodenberg, Fayette County Sheriff Marty Fisher discovered that Rodenberg and her husband, Ian, were renting a room to a sex offender. Apparently working with a doctored version of the Iowa Code, Sheriff Fisher arrested both parents, DHS picked up the kids (ranging in age from 4 to 10), and the unnamed sex offender presumably has the house to himself.
As reported by Radio Iowa, however, there is no evidence of a crime taking place. It is not a crime to rent a room to a sex offender simply because you have kids in the house. When the law changed in 2005, it became a crime for someone with kids to cohabitate with a sex offender, unless the two are married. While not as clear-cut as one might like, case law on the subject (for example, Iowa v. Mitchell) makes it quite clear that “cohabitation” and “living together” are not the same (and of course, “renting a room” is another step down). And unless there was more going on between either Julie or Ian and their tenant that would constitute cohabitation, then we’re talking about a living arrangement that falls outside the scope of the sex offender provision.
Fortunately, one of the positive impacts of Senate File 340 (Iowa’s Adam Walsh Act) is that now our child endangerment law, notwithstanding other flaws, is no longer wrought with confusing language over “cohabitation” with sex offenders. The new law, which takes effect in a few weeks, amended the sex offender provision, narrowing its focus as to the behavior it criminalizes, while simultaneously expanding whom it affects. Instead of a parent being hauled off to jail for merely “cohabiting” with someone they know to be a sex offender, there must be evidence that they allowed that person “custody or control” of their children, or unsupervised access to them.
The amendment will help prevent more cases like the one in Arlington (again, that’s assuming there isn’t more to the story that would actually constitute criminal activity – perhaps something the reporter could have checked on before publishing the story… just a thought). What is unfortunate, though, for sex offenders who interact with other human life forms (family, friends, co-workers, lovers, etc.), of whom at least a few must conceivably have children, is that the sex offender provision will be a huge headache. That goes for the ex-offender, of course, but also for those other life forms who might occasionally like a babysitter, or at least to be able to step into the next room without committing an aggravated misdemeanor in the process. And while it may protect children in some cases, we can do better than a blanket solution, especially one that alienates sex offenders from one-quarter of the nation’s inhabitants.
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The Sex Offender Provision in Iowa’s Child Endangerment Law
The two most obvious constitutional problems with the provision are that it appears to violate Due Process and Equal Protection Clauses. The provision limits a fundamental liberty interest by intruding upon intimate relationships – no matter what one’s opinion of “sex offenders” (as a very broadly-defined group), breaking up relationships and families without a legitimate reason is not exactly a role of our government that most Americans would support. And of course, with regard to Equal Protection, the provision treats married and unmarried couples differently, even though a sex offender’s marital status (if he poses the threat our policies seem to imply he does) is an arbitrary factor to consider when assessing his risk to re-offend. But of course, when due process is skipped over, and the whole business of investigating facts, testing assumptions, synthesizing information, etc., is abandoned, it makes sense that we would end up with weird, arbitrary distinctions in the finished product.
With respect to policy development, it’s worth noting that the 2005 addition of the sex offender provision to Iowa’s child endangerment takes a significant leap away from the intent of the law (and the 2009 amendment in Senate File 340 didn’t help matters). Instead of criminalizing behavior that actually harms children, like hitting them or starving them, or behavior that poses a “significant risk” of harm, like making meth at the dinner table or allowing physical or sexual abuse of the child to continue, the provision criminalizes associating with a sex offender. I’m not suggesting we can’t evaluate risks and develop new policies based on such evaluation – but that process did not lead us to where we our today. Our legislators took a shortcut, intellectually and politically, and equated continuing to live, breathe, and exercise fundamental liberties after being convicted of a sex offense with a form of child abuse.
In the absence of concrete evidence to suggest that the presence of a sex offense on one’s criminal record – and the degraded legal status of “sex offender” – makes one a threat to children, along the same lines as, say, actual abuse, the choice ought to be left to the parent. Allowing someone who has been convicted of a sex offense to supervise your child, while not a choice everyone would make, or ought to make, is not a choice to be criminalized.
Finally, the sex offender provision in Iowa’s child endangerment law got wrong what the 2,000-foot residency restriction and more recent exclusionary zones got partially right. It turns out that not all sex offenders are the same. Not all of them harmed minors (under 18), fewer harmed children (under 13), few commit another sex crime after their first conviction, and very few could be classified in any meaningful way as “predators.” Yet we base our assumptions and our policies on a “worst of the worst” stereotype of all sex offenders – and in this case, restrict ex-offenders from coming into contact with children when their offense had absolutely nothing to do with a child. Residency restrictions and exclusionary zones, while still bad policies, at least are designed to do what politicians tell us they’ll do. The child endangerment law isn’t even logical, which tends to be an important standard for public policy.
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Conclusion
So, what could be so wrong about enhancing child endangerment law to protect children from the threat of sexual abuse? After all, in the vast majority of child sexual abuse cases, the perpetrator is someone known to the child, usually someone in the home. Why not intervene? Good question.
The fact is, we ought to intervene. We need to intervene. Thanks to feminist researchers like Catharine MacKinnon, Diane Russell, and Mary Koss, and various studies on date rape, domestic violence, incest, and other forms of violence in the last few decades, we are much more conscious of how deeply violence, and particularly men’s violence against women and children, is woven into the fabric of our society. We understand much better today the scope of the problem, and we have the resources and ingenuity to change things.
The bad news is that, while we benefited from what the feminist movement revealed about men’s violence, we stopped short of the radical change, and even the not-so-radical change, feminists have been proposing for years. In Iowa, we never seem to find enough money to keep rape crisis centers open. We balk at the task of ensuring access to mental health resources for survivors of abuse in Iowa’s many rural communities. And when single moms get stuck in a relationship with someone who abuses her children, and perhaps her as well, we are more interested in arresting her and taking her kids away than actually empowering them with the resources they need to survive. In fact, we are so committed to one political strategy over the other that we are willing to arrest a single mom at the mere chance that the mate she has selected could abuse her children.
Yes, we absolutely need to intervene. But we’ve bypassed the policy interventions that would create the solutions we need, in favor of easy answers from white male politicians who cannot muster enough political courage to admit when they’re wrong, when the nature of the problem is such that their leadership is inadequate. What we need, before yet another press conference of men – politicians, county attorneys, and sheriffs – patting themselves on the backs for making our communities safer for kids with more restrictions on sex offenders, is to address the structural inequalities that keep women and children trapped in abusive homes, men trapped in alternating roles of sexual aggressor and sexual protector, and our society trapped in a cycle of responding to complex and challenging problems with easy, ineffective solutions.
