The DOJ’s Potential Plans to Create Title IX Sex Offender Database

Campus rights activists and some experts are alarmed by a notice in the August 1 Federal Register. The Department of Justice program “Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking” (SMART) plans to collect questionnaires from approximately fifty colleges and universities on behalf of its “Campus Information Sharing and Response Project.”

The forms are estimated to take 15 minutes to complete. The data on campus policies and procedures will include information on “individuals found responsible and sanctioned for campus sexual misconduct policy violations.” The public has until August 31 to comment.

SMART was established by the Adam Walsh Child Protection and Safety Act of 2006. The Act not only created a federal sex offender registry but also instructed states to post the personal data of offenders in their jurisdictions online, including addresses and photographs.

Walsh slots sex offenders into three categories: Tier Three consists of the most serious criminals, who must register for life and report their location every three months. Tier Two offenders register for 25 years and report every six months. Tier One offenders register for 15 years and report every year.

Failure to comply is a felony. Those who do comply confront severe limitations in employment, education, and social access. Some professions are closed to them; many universities will not enroll them; they cannot reside in areas with easy access to children. According to SMART’s website, the program provides “jurisdictions with guidance” and technical assistance to implement Walsh. One of its major functions is to provide funding to create sex offender registries

The alarm bell rings from several directions.

First. Language of the August 1 announcement suggests the establishment of a sex registry. It describes the information sought: “Policies and practices regarding individuals found responsible and sanctioned for campus sexual misconduct policy violations,” including the “use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.”

Some inquiries into the data’s potential use have received no response. A SMART representative recently assured the Daily Wire, however, that the data will not be used to create a registry nor be shared with other government agencies.

Second. An air of secrecy or confusion seems to surround the project. The DOJ lists all solicitation from their departments for grants, for example. In 2017, SMART requested “up to $500,000” to research “Campus-Focused Sexual Assault Prevention: Expanded Sanctions for Perpetrators.” The title’s reference to “expanded sanctions” seems to belie SMART’s passive role as data collector.

Clicking on the grant request link leads to a description, which reads, “To develop and provide alternative sanctions to campus administrators and/or disciplinary boards to utilize for those individuals found responsible for sexual assault on campus.” The initiative has not been closed. Nevertheless, the 2017 grant request is not among those listed or cross-linked on the SMART website.

Third. SMART has a history of involvement in campus sexual assault issues:

SMART FY 14 (2014): Campus Sexual Assault Perpetrator Treatment Pilot Program. The description reads, “This program furthers the Department’s mission by supporting projects that will pilot test programs to enhance sex offender management practices.” It is open to all “nonprofits having a 501(c)(3) status…other than institutions of higher education; or public and state-controlled institutions of higher education; or private institutions of higher education; or small businesses.”

SMART FY 15 (2015): Campus Sexual Assault Campus-Focused Sexual Assault Perpetration Prevention and Education Program (to develop a situational prevention program). Its mission is to support projects that “test pilot programs to enhance sex offender management practices.” The eligible applicants are expanded to “nonprofits with 501(c)(3) status, private or public and state-controlled institutions of higher education, tribal institutions of higher education, for-profit organizations, or small businesses. For-profit organizations must agree to forgo any profit or management fee.”

SMART FY 16 (2016): Sex Offender Management Fellowship Program. The program works with other DOJ and SMART projects and explicitly cites FY14 (p.4) and FY15 (p.5). It implements the requirements of SORNA.

Fourth. The Campus Information Sharing and Response Project is “flying under the radar.” No DOJ website describes the program, and it is not listed in SMART’s FY 2019 Budget Request, which means the Project is operating without Congressional oversight.

Given the foregoing circumstances, concerned about the data collection as a prelude to a student sex offender is natural.

Few people sympathize with convicted sexual offenders. But many people raise objections to SMART’s possible intrusion into colleges and universities. Campus sexual misconduct hearings have come under concerted attack in recent years.

Many campus procedures violate the due process rights of defendants, such as the right to representation and to cross-examination of an accuser and witnesses; some defendants do not even know the exact accusations being brought against them. In lawsuit after lawsuit, courts have reversed campus “guilty” judgments, and defendants have reached settlements with the universities. A large factor in the reversals: Campus hearings proceed to “guilty” verdicts even when local police departments dismiss the charges.

And, then, there is the issue of defining sexual misconduct. The campus definition can range from verbal sexual harassment, including off-color jokes, to brutal rape. It is far from clear which definitions will be used by SMART.

The Campus Information Sharing and Response Project may open the door to a sex registry for students who are not charged nor convicted of a criminal offense. It may expand the conduct considered to be a sexual offense far beyond what most people would consider reasonable. Until such fundamental matters are clearly delineated, the project should be suspended.