Academic journal article The Review of Litigation

McKune V. Lile and the Constriction of Constitutional Protections for Sexual Offenders

Academic journal article The Review of Litigation

McKune V. Lile and the Constriction of Constitutional Protections for Sexual Offenders

Article excerpt

Sex offenders and their crimes create a troubling predicament for the American criminal justice system. The physically and psychologically violent nature of their crimes and the unusually high recidivism rates for violent sex offenders place this category of offenders in a unique group, even among the larger class of felony offenders. The public threat posed by sex offenders and the seeming difficulties in "curing" those who commit violent sex crimes present the justice system with a difficult problem-that of marrying rehabilitation and punishment, while maintaining its duty to uphold public safety. This challenge has encouraged various jurisdictions to adopt a variety of inventive solutions over the years, many of which have been rather controversial. Many of these attempts to quell the problems presented by sex offenders walk a fine line between meeting their purported goals of rehabilitation and maintaining public safety, and directly infringing upon or constricting the constitutional protections afforded sex offenders.

The first portion of this Note attempts to trace the increasing limits placed on the constitutional guarantees afforded convicted sex offenders by both statutory and case law by analyzing prevalent attitudes towards sex offenders and their offenses, reporting and registration requirements in sexually violent predator acts, and involuntary civil commitment schemes. Next, this Note addresses the implementation of rehabilitative sex-offender treatment programs, focusing on the difficulty of finding a balance between protecting society by rehabilitating offenders and ensuring those offenders the rights guaranteed them by the Constitution. Then, the discussion focuses on McKune v. Lile,1 a case challenging the Kansas statutory sex-offender treatment scheme, and in particular, its implications for participants' Fifth Amendment privileges. Then, this Note critiques the Supreme Court's upholding of the Kansas scheme and addresses some of the problems the decision creates for the future of Fifth Amendment case law. Finally, the Note considers some of the explanations social science offers for the justice system's treatment of sex offenders.


Over the past few decades, policy-making decisions regarding sexual offenses have provided support for the proposition that sexual offenders are somehow different. An examination of statutory and case law addressing sexual offenses indicates that, even when compared to other serious criminals, sexual offenders seem particularly despicable to both the public and public officials. Sex offenders appear particularly threatening to public safety and particularly prone to repeat offenses. In recent decades, this perception of "difference" has emerged in the laws affecting sex offenders. Arguably, one reason for this legal differentiation is the compounded psychological and physical violence with which sexual offenders confront their victims.2

Developments in the United States justice system's treatment of sexual offenders, particularly repeat offenders, confirm this perceived difference in jurisdictional attempts to meet the special challenge presented by sex crimes. Several legal trends over the past few decades trace the increasingly differential treatment of sexual offenders under the law-as well as the increasingly narrow constitutional protections afforded this category of criminals.

A. Registration and notification statutes

The public safety concerns presented by sex crimes urged every state in the nation to adopt sex offender registration and notification statutes.3 Encouraged by Congress's adoption of Megan's Law in 1994,4 most of these jurisdictional statutes require those convicted of particular sex offenses to register with local authorities by providing information regarding their post-conviction residency and location.5 Local law-enforcement agencies coordinate these registries in a format available for public use. …

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