Recommendations for Reforming Arizona’s Laws Governing Sex Offenders
Tamara Rice Lave
Professor of Law
Director Litigation Skills Program
University of Miami School of Law
Although Arizona has done a commendable job of criminalizing sex between police officers and a person in custody, the state needs to create additional safeguards to better promote the rule of law and protect vulnerable persons.
This article recommends ways to reform Arizona’s sex offender laws. It focuses first on laws designed to address the danger posed by convicted sex offenders: registration requirements, community notification, residence restrictions, and civil commitment. Relying on the substantial body of research on sex offender recidivism, this article contends that Arizona has overstated the risk posed by convicted sex offenders, and the laws meant to control them do more harm than good. The article then turns to police sexual violence. Although Arizona has done a commendable job of criminalizing sex between police officers and a person in custody, the state needs to create additional safeguards to better promote the rule of law and protect vulnerable persons.
- A risk-based sex offender registry is better at identifying danger than a tiered system like SORNA.
- Community notification and residence restrictions are ineffective at lowering recidivism (and may increase it). They also have enormous collateral consequences for those on the registry and their families.
- Arizona law gives the police carte blanche to sexually grope and digitally penetrate someone while conducting a lawful search.
- By creating an exception to its bar on sexual conduct between a police officer and a person in custody for those who are married or in a romantic or sexual relationship, Arizona law ignores the fact that many rapes and sexual assaults occur within these types of relationships. It also fails to recognize that a person in handcuffs cannot meaningfully consent to sex.
- Arizona should use a risk-based sex offender registry that makes it easier to be removed from the registry, based on factors that have shown to be associated with lowered risk. Such factors include advanced age of the registrants, and the period of time the registrant has gone without reoffending.
- Arizona should terminate or at least significantly curtail its community notification and residence restrictions to only those sex offenders who have been shown to be at high risk of reoffending. In making that determination, age and time spent without being arrested for a new sex crime should be taken into account.
- A.R.S. 13-1412, criminalizing unlawful sexual conduct by a police officer and person in custody, should be amended to only permit reasonable direct or indirect touching of sensitive areas during a lawful search.
- A.R.S. 13-1412 should be amended to prohibit all sex between a police officer and a person under arrest, even if the officer is married to or in a relationship with the person under arrest. A limited exception should remain open for persons under investigation and not in custody, when the police officer is not directly involved in the investigation.