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Table of Contents
| Disentangling Child Porn from Sex Abuse
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By posted by Kim and others <rwsmom@verizon.net>
Posted on 03.04.2010
Link to this research entry: [028] |
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Disentangling Child Pornography from Child Sex Abuse
Carissa Byrne Hessick
Arizona State, Sandra Day O'Connor College of Law
Washington University Law Review, Vol. 88, 2010
Abstract:
Recent years have seen a significant increase in the criminal penalties associated with possession of child pornography. The new severity appears to be premised on arguments that blur the distinction between those who possess images of child pornography and those who sexually abuse children. In particular, sentences have been increased based on arguments that possession of pornography is equivalent to or worse than child sex abuse, arguments that viewing child pornography increases the risk that an individual will sexually abuse a child, and arguments that those who possess child pornography are abusing children undetected. This Article identifies instances where possession of child pornography and child sex abuse have been conflated, critically evaluates the arguments that promote such conflation, and identifies independent concerns with conflation. Specifically, it argues that blurring the distinction between the two crimes allows us to continue to misperceive child sex abuse as a stranger-danger issue, and that when law enforcement statistics aggregate possession and child sex abuse, then the public may be misled into believing that law enforcement is successfully battling child sex abuse, when that is not the case. The Article concludes that the modern trend of increasing sentences for possession of child pornography ought to be reviewed, and it suggests several possible areas of reform.
Accepted Paper Series
Date posted: March 28, 2010
Hessick, Carissa Byrne, Disentangling Child Pornography from Child Sex Abuse (March 24, 2010). Washington University Law Review, Vol. 88, 2010.
Available at SSRN: http://ssrn.com/abstract=1577961
Carissa Byrne Hessick (Contact Author)
Arizona State, Sandra Day O'Connor College of Law
Box 877906
Tempe, AZ 85287-7906
United States
480-965-2007 (Fax)
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Texas Tough - America's Prison Empire (Review)
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By posted by anonymous <alexm>
Posted on 03.04.2010
Link to this research entry: [027] |
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Refer in comments to Research Item No 027 and send to alexm60@fastmail.fm. I will send it along to the person who sent it in.
Although not specifically on sex offender law reform, this is the review of a very important book on the terrible US prison system and its history.
alex
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March 28, 2010 -- New York Times (NY)
Book Review: The Land of Lock and Key
Review of
Texas Tough: The Rise of America's Prison Empire, By Robert Perkinson (Illustrated. 484 pp. Metropolitan Books/Henry Holt & Company. $35)
By Daniel Bergner
URL:
http://www.nytimes.com/2010/03/28/books/review/Bergner-t.html
Prisons are sacred places. There our society claims control over the lives of men and women; there we assume the roles of gods. And whether the prison sprawls over thousands of acres like the penitentiary farms of the Deep South, or compresses its convicts on tight tiers, the air within holds a particular density, a palpable weight created not only by the crimes the inmates have committed but also by the ownership we have taken of the convicts, whether we acknowledge it or not.
In "Texas Tough," Robert Perkinson, a professor of American studies at the University of Hawaii at Manoa, delivers an important reckoning with this societal responsibility. Though his loud, machismo-laden title might better serve for a reality show about life behind bars, Perkinson offers a searching history of American incarceration, tracing the failures of our prisons to the approach that Texas and other Southern states have long taken toward their criminals and denouncing the fact that, with about 1.6 million people in our penitentiaries and an additional 800,000 in our jails, the United States locks up its citizens at a higher rate than any other country in the world.
Race and slavery lie at the heart of Perkinson's vision of American penology, and a profound dismay infuses the rhetoric of his opening pages. "Freedom is the United States' founding creed," he declaims in the book's first sentence, and immediately he adds pronouncements from Thomas Paine, Andrew Jackson and Barack Obama making the same point. The oncoming irony is unmissable; there isn't much that is subtle about Perkinson's writing, and perhaps there shouldn't be. Not only do we incarcerate at some six times the rate that Britain does, to take one example, or around seven times the rate of Canada, but, Perkinson relates, African-Americans are seven times as likely to be locked up as whites, and "African-American men today go to prison at twice the rate they go to college."
As Perkinson sets out to tell the story of America's movement from, in his words, "the age of slavery to the age of incarceration," with the latter period beginning in the mid-1960s and continuing to the present day, he concentrates on Texas in part because the modern surge of its inmate population has far outstripped even the spike in national numbers. Between 1965 and 2000, the number of prisoners in the country rose by 600 percent; in Texas, the growth was twice that. The state ranks near the very top for the percentage of its people kept behind bars. And for well over a century, Texas has held to a perspective on penology -- an outlook devoid even of the goal, let alone the reality, of rehabilitation -- that now dominates the nation. The state, in Perkinson's eyes, has provided a "template for a more fearful and vengeful society," for a country that no longer aims, with its inmates, "to repair and redeem but to warehouse, avenge and permanently differentiate convicted criminals from law-abiding citizens."
The template was mostly formed, according to "Texas Tough," by slavery and its aftermath. Defeated in the Civil War, Texas and its Southern confederates were desperate to retain as much dominion as possible over their former slaves, and they found a way through law enforcement. Blacks seized for low-level crimes faced severe punishment with little chance of defending themselves in court. Perkinson tells of a black man sentenced to two years for stealing a pair of shoes and another sent away for five for snatching a bushel of corn. In the three years following the war, Texas' inmate population nearly quadrupled -- and darkened considerably in skin color, with former slaves soon outnumbering whites. Over the next few decades, these new black prisoners were rented out to an array of private businesses under a system known as convict leasing, which replicated slavery for its brutality and may well have exceeded it in disregard for human life.
Black prisoners in Texas cut sugar cane and picked cotton on the plantations of the state's agricultural barons. They built the railroads that took the cotton to market. White convicts were leased out as well, but often for less arduous labor. Whipped and driven to work despite malaria and dysentery, or shot trying to escape, blacks fell dead nearly twice as frequently as whites. And the death tolls were high. At one work camp, where the men chopped timber for railway ties, almost a quarter of the convicts perished in a period of four months.
Similar toil and treatment prevailed in much of the South, and even when convict leasing came to an end in the early 20th century -- in Texas, the end arrived partly through a campaign waged by an outraged prison pastor and a crusading San Antonio journalist -- the system was replaced by government-run plantations and chain gangs. Fatalities declined, but subjugation remained the ethos. And this Southern penological tradition, the book argues, stands in important contrast to the Northern one, which was shaped by idealists whose early-19th-century penitentiaries were designed to restore "the vicious part of mankind to virtue and happiness," in the language of Benjamin Rush, a Pennsylvania doctor and signer of the Declaration of Independence who helped create the Northern model. This method, which stressed solitary confinement and silence, may have been a harsh failure at redeeming convicts, but at least it had reformation in mind.
It is the Southern tradition that has proved, in Perkinson's telling, to have the lasting nationwide legacy, both in the current warehousing of inmates and in the racism now powerfully embedded in American penology. Much as emancipation brought on a penal backlash against Southern blacks, so did the civil rights movement -- except that this later reaction was national. Equal protection, desegregation and President Lyndon B. Johnson's war on poverty were quickly followed by tougher drug laws and crackdowns on crime that, with conscious intention or not, made blacks a target. Since the triumphs of the civil rights movement, the disparity between black and white incarceration rates has almost doubled. In the early 21st century, the country, Perkinson suggests, has in a sense become the late-19th-century South.
This is an alarming indictment, built on passionate and exhaustive research. Unfortunately, Perkinson presents his case in a sometimes numbing fashion. He details Texas' prison history decade by decade, failing to fully dramatize the characters who could bring life to his urgent writing. Problematically, too, his case seems, in certain ways, overly broad, and in other ways evasive. The abuses of Abu Ghraib and Guantánamo may not be as easily attributed to the legacy of slavery and Southern penology as Perkinson abruptly and sweepingly asserts in his final pages. And along with his condemnations of Texas and America, Perkinson would have done a service by thoroughly examining, rather than nearly ignoring, recent evidence that both the state and the country are holding incarceration rates in check partly by embracing, however gingerly, the spirit of rehabilitation. A new report from the Pew Center on the States, about the country's correctional systems, highlights Texas' nascent commitment to drug treatment behind bars. Perkinson might have offered a glimpse of such programs and a sense of whether they will last.
By documenting relentlessly, almost without counterpoint, the inhuman ity that has defined Texan and Ameri can incarceration, "Texas Tough" leaves us wondering, despairingly, whether there is any way our society can rise to the godlike responsibility that suffuses prison air, whether there is any way we can rehabilitate our prisons so that we can reliably reform the convicts we lock inside.
Texas Tough: The Rise of America's Prison Empire, By Robert Perkinson (Illustrated. 484 pp. Metropolitan Books/Henry Holt & Company. $35)
Daniel Bergner is the author of "God of the Rodeo: The Quest for Redemption in Louisiana's Angola Prison" and "The Other Side of Desire: Four Journeys Into the Far Realms of Lust and Longing," which has just been published in paperback.
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Child Sex Abuse Way Down -¨Child Savers¨ Hide Report
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By posted by Fima & Joel <estrinyefim@gmail.com,joelpent@comcast.net>
Posted on 05.02.2010
Link to this research entry: [026] |
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Refer in comments to Research Entry 026 and send to joelpent@comcast.net and estrineyfim@gmail.com, with a copy to alexm60@fastmail.fm
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THIS IS ONE OF THE MOST IMPORTANT REPORTS ON THE SUBJECT WRITTEN - THIS IS GOOD NEWS and we MUST SPREAD THE WORD! As this article says, the child protection industry and sex offender industries do NOT want this widely known!
alex
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National Coalition for Child Protection Reform / 53 Skyhill Road (Suite 202) / Alexandria, Virginia, 22314
(703) 212-2006 / www.nccpr.org / info@nccpr.org
CHILD ABUSE IS WAY DOWN (DON’T TELL ANYONE):
An Analysis of NIS-4 from the National Coalition for Child Protection Reform,
February 2, 2010
OVERVIEW
A huge study of child abuse, commissioned by the federal government, that many in the child welfare community have been eagerly anticipating for years, has arrived – to almost no fanfare. It just sort of sneaked onto the internet on January 28, courtesy of an obscure division of the Department of Health and Human Services. It’s called the Fourth National Incidence Study of Child Abuse and Neglect, commonly known as NIS-4.
It’s available online here:
http://www.acf.hhs.gov/programs/opre/abuse_neglect/natl_incid/index.html#reports
One possible reason why it’s gotten so little attention: The study finds that child abuse is down – way down. And while that’s great news for children, it’s terrible news for the foster-care industrial complex, the agencies that need a steady supply of foster children to stay in business, and their allies. These are the latter-day version of those who, in the 19th Century, proudly called themselves “child savers.” After all, with groups like Every Child Matters spreading hype and fomenting hysteria in an effort to divert billions more federal dollars into hiring child abuse investigators, the last thing they’d want everyone to know is that there is a lot less child abuse than there used to be.1
The study found this significant decline in child abuse even though this study measures not actual maltreatment but rather the guesses of key people in a sample of communities about children they suspect might be maltreated, or might be at risk of maltreatment sometime in the future. In other words, what this study labels actual cases of
child abuse are the equivalent of “reports” alleging maltreatment to child protective services (CPS) agencies – and only about one-quarter of such reports actually hold up when they’re investigated.
The study also found this significant decline despite some breathtakingly-broad definitions of “abuse,” including things like sending a child to bed without his supper and being - no kidding - “overprotective.” In addition, all spanking can be defined as physical abuse. Any of these things makes a child “abused” or “neglected” if the person reporting the case to the researchers, called a “sentinel” believes they caused harm or the risk of harm.
And “harm” can be no more than the child feeling fearful, feeling depressed or having nightmares for two days in a row.
The report also is more evidence that, while the obscenely high rate at which CPS agencies take away children and throw them into foster care is related to many things, actual child abuse is not one of them. The study looked at child maltreatment at the end of 2005 and
the beginning of 2006 and showed that there was far less child abuse then than in 1993. (Both studies used the same methodology and definitions.) But in 1993, an estimated 226,000 children were taken from their parents and thrown into foster care. In 2005, when there was far less actual child abuse, the number was 307,000, the highest number on record.
ANALYSIS OF NIS-4/2
The report is still another indication that the best use of scarce child welfare dollars is on prevention and family preservation – not on hiring more people to investigate less actual abuse.
As for the numbers in the study itself, inevitably news accounts are likely to focus on the really big ones. But it takes a mountain of hype, and absurd definitions of maltreatment to get to those
numbers. The huge numbers in this study include any case in which any so-called “sentinel” guesses that a child might have been harmed, or might be at risk of harm by going to bed without his supper, doing too many chores, having an overprotective parent
etc.
Dig down through that mountain of hype to the molehill of truth and what this study really found is that, when it comes to the kinds of cases people think of when they hear the words “child abuse” – cases that do serious harm to a child - a very generous estimate suggests that there are probably about 281,000 of them in this country every year. (The methodology for this calculation is explained later in this analysis.)
On the one hand, that’s a very high raw number. It’s roughly equal to the entire population of Buffalo, New York. On the other hand, it means that, in any given year, 99.6 percent of America’s children are not victims of what the public commonly thinks of as child abuse.
That has huge implications. When you’re looking for 281,000 seriously abused children among the 74 million Americans under age 18, you’re looking for needles in a haystack. That means we need better ways to find the needles, instead of spending even more
billions of dollars to try to vacuum up the haystack - at enormous cost to the children who get swept up by mistake. It also means the numbers commonly used to stampede us into phony solutions and running roughshod over innocent families are dangerous nonsense.
The NIS-4 findings are even more significant when read in conjunction with a second recent study done by the Center for Public Policy Priorities in Texas, and discussed on the NCCPR Child Welfare Blog here: http://nccpr.blogspot.com/2010/01/repostingfamilypreservation-
and.html
(The discussion includes a link to the full study.) This study dealt with child abuse fatalities. It found that none of the traditional CPS interventions - screening in more reports, investigating more cases, taking away more children - had any impact on reducing child abuse fatalities. But more prevention and more efforts to curb poverty and teen pregnancy do reduce such fatalities.
The two studies together provide overwhelming evidence that it would be a huge waste of money to plow more scarce resources into Child Protective Services investigations when the same money can save more children's futures, and even their lives, when invested in prevention and family preservation.
HISTORY OF THE NATIONAL INCIDENCE STUDIES
The first such study commissioned by Congress was done using data from 1980. Another followed using data from 1987 and a third used data from 1993. Then came a 10- year gap until the 2005-06 data used for the just-released report. The study looks far beyond official reports of maltreatment, by establishing a network of more than 10,000 “sentinels” – professionals in mental health agencies, law enforcement, schools, hospitals etc. who are asked to be on the lookout for anything that fits the study’s very broad definitions of maltreatment. The sentinels then notify the researchers of any such
case. There is no further investigation – no attempt to do what a CPS agency would do and determine if the sentinel’s impression is “substantiated” or “unfounded.”
That first study (NIS-1) used a definition of maltreatment which was extremely broad, but it did require that for a child to be considered an abused or neglected child, that child actually had to be abused or neglected – the child had to suffer harm, which is why it’s called the “harm standard.”
While that may seem like common sense, it produced a number that was lower than the child savers wanted, since they wanted to use these data to expand coercive intervention into families. So they lobbied for an expanded definition – one which counts any case in which the “sentinel” believes what the parent did or failed to do “endangered” the child – that is, put the child at risk of harm. That’s called the “endangerment” standard. But there appears to be no definition of “endangered” – except that it automatically
includes any case that was substantiated by a CPS agency – even though, as is discussed below, the NIS researchers themselves have found that CPS agencies often wrongly substantiate cases.2
So ever since NIS-2, all of these studies have provided two sets of data, using these two standards. Both standards use the same definitions of what constitutes maltreatment; in most cases the only difference is whether the “sentinel” believes the child was harmed or only might be harmed.3
A DEFINITIONAL NIGHTMARE
And what constitutes abuse and neglect under these definitions? Pretty much anything and everything. In order to be “counted” as maltreatment, the case not only must fit the definition, but
the “sentinel” also must believe the maltreatment caused either “serious” or “moderate” harm – or put the child at risk of experiencing such harm in the future. But that’s a very low bar. The standard for moderate harm includes treatment that left a child feeling fearful, or depressed, or having nightmares for two days in a row – or, for the endangerment standard, treatment that put the child at risk of these experiences.
Even categories that should be straightforward include some surprises. Physical abuse includes “hitting” and hitting includes “spanking with hand.” The definition of sexual abuse includes “failure to supervise the child’s voluntary
sexual activities.” Does this mean mom and dad have to chaperone every time their 17-year old goes out on a date? (Or would that be “overprotective” and therefore emotional neglect?)
And it gets worse: Emotional abuse includes: “nonphysical forms of overtly rejecting treatment” and “all varieties of … overtly punitive behaviors where actual physical contact did not occur (such as intentional withholding of food … or excessive responsibilities …)” So if Mom sends her son to bed without his dinner, that qualifies. So does making him do more chores than the “sentinel” thinks is appropriate. Physical neglect includes “inadequate supervision” – one of the most common allegations investigated by child protective services. Among the circumstances deemed
inadequate supervision: a 12-year-old who has to take care of a younger sibling. But often these are cases in which a single parent has to choose between leaving that 12-year-old to watch the siblings or staying home herself and losing her job. This category also includes “inadequate attention to needs for food, clothing, shelter,
or personal hygiene; and other disregard for the child’s physical needs or physical safety.” In other words: poverty.
(The fine print includes an instruction to “sentinels” not to count the case as maltreatment if the lack of food clothing and shelter is caused by the family’s being “financially unable to provide” it – but it doesn’t explain how the sentinels would know this.
And such provisions in state laws routinely are ignored by CPS agencies.)
Fully 360,000 cases involve “educational neglect.” But a recent study of such cases in New York State by the highly-respected Vera Institute of Justice suggested that this category often shouldn’t be part of the CPS mandate at all. The report is available here:
http://www.vera.org/download?file=2943/Rethinking%2BEducational%2BNeglect_final-2.pdf
Among their findings:
--Overwhelmingly these are low-risk cases, and it’s idiotic to waste the time of child protective services dealing with them. (While that may be obvious, they’ve got an actual case reading, from Orange County, to prove it.) In addition to wasting the time of CPS workers,
sending a CPS worker to the door only makes the family defensive and makes it harder to solve whatever problem may be causing absenteeism.
--The notion that educational neglect is the “tip of the iceberg,” a sign of some other, deeper problem, (the primary excuse for CPS investigating such cases), is nonsense. Generally, “educational neglect” is the tip of nothing except some kind of school problem,
often one that is not the parent’s fault.
--In one city, Yonkers, school officials will call in a report of educational neglect if they simply can’t reach a parent by phone, or the family’s address has changed and they don’t know where to find them.
--While few educational neglect cases wind up with children placed in foster care, many families get dragged into court – and the investigations can devastate families and scare them away from help.
--The majority of states do not include “educational neglect” in the mandate of their CPS agencies at all (which raises questions about why it’s in the National Incidence Studies).
And then there’s the category called “emotional neglect.” It includes:
--“inadequate nurturance or affection”
--“failure or refusal to seek needed treatment for an emotional or behavioral problem”
In other words, mom and dad don’t think their child should be on Ritalin, the teacher does, and the teacher is a sentinel, so…
--“overprotective treatment”
--“inadequate structure”
--“inappropriately advanced expectations”
--“exposure to maladaptive behaviors and environments”
--“other inattention to the child’s developmental or emotional needs”
Given this astounding set of definitions it should come as no surprise that while almost every other category of child maltreatment is declining, “emotional neglect” supposedly nearly doubled. And it should come as no surprise that this one category encompasses more than a million cases, more than one-third of the total for every form of maltreatment under the “endangerment standard.”
As noted above, when you boil it all down, the huge numbers in this study include any case in which any sentinel guesses that a child might be harmed by going to bed without his supper, doing too many chores, having an overprotective parent etc. Of course it also includes cases in which the sentinel suspects beatings, rape and
torture, and the suspicion is correct. But how many such cases are there?
The study makes it enormously difficult to tell. The study estimates that there were 562,000 children to whom some form of maltreatment did “serious” harm.4 But again, these are sentinels’ guesses – roughly the equivalent of “reports” to child protective hotlines that are passed on for investigation. We know that when such suspicions are reported to CPS agencies, only about 25 percent turn out to be “substantiated” after an investigation. We also know, from a study done for NIS-2, but, unfortunately, not repeated this time, that caseworkers are two to six times more likely to wrongly substantiate a case than to wrongly label one unfounded 5 – so
that 25 percent figure is, in fact, too high.
But let’s assume that 25 percent really is an accurate substantiation percentage and let’s assume the sentinels are equally accurate. That would mean the real number of serious cases is 140,500.
But although the NIS studies go to enormous lengths to find cases that are not reported to authorities, of course they won’t find every case. Let’s assume they’ve missed half the serious cases out there. That would mean that, if we give those who want to inflate these figures the benefit of doubt after doubt, there are 281,000 cases of serious child abuse in America every year.
As noted at the start of this analysis, that is cause for serious concern – and for action. But it means the type of action should be vastly different from the broad-brush approach that subjects millions of children to needless traumatic investigations, and thousands to the enormous harm of needless foster care.
ENCOURAGING TRENDS
Even if one takes the hyper-inflated figures in this report at face value, the trend is remarkable. Comparing the findings of this study to the 1993 study, using the so-called “harm standard”:
The rate of all forms of maltreatment is down 26 percent.
The rate of sexual abuse is down 44 percent.
The rate of physical abuse is down 23 percent.
The rate of emotional abuse is down 33 percent.
The rate of neglect in general and in its subcategories remained unchanged.
Using the “endangerment standard”:
The rate of physical abuse is down 29 percent.
The rate of sexual abuse is down 47 percent.
But, guess what: The rate of emotional neglect – that incredible catch-all category, nearly doubled, increasing by 83 percent.
The authors suggest that while this may be partly a real increase, “it is fairly clear that it also reflects some change in policy and focus.” No kidding. For decades, the child savers
have had great success in constantly broadening the types of behavior defined as “child abuse” – or as the child savers no doubt would prefer to put it: “raising awareness.”
The study authors cite, in particular, increased “awareness” of the problem of children witnessing domestic violence. This has been a huge growth industry for the child savers – and a dangerous one. Because while witnessing domestic violence can indeed sometimes be
emotionally harmful to children, taking the child away from the non-offending parent and throwing that child into foster care is far more harmful. The research was documented in a class-action lawsuit banning this practice in New York City. An excerpt from the court
decision documenting that research is available on our website here:
http://nccpr.info/whenchildren-witness-domestic-violence-expert-opinion/
Also unsurprisingly, under the “endangerment standard” fully three-fourths of all the alleged cases of maltreatment involved some form of “neglect.”
THE ENORMOUS ROLE OF POVERTY
NIS-4 used a different formula for determining poverty than in past studies, so the differences are not as dramatic as in past NIS reports, but they’re still huge:
Children who are poor are thee times more likely to experience abuse, as defined by this study, and seven times more likely to experience neglect – which is hardly surprising since the very definition of neglect in this study is a definition of poverty.
RACIAL BIAS
The poverty factor helps explain the findings on race. Again using definitions that define poverty as neglect, the study found more maltreatment among Black families. Mostly this was not due to an increase in alleged maltreatment among Black families but rather a
slower rate of decrease.
Given what has happened in America from 1993 through 2006 that’s not surprising. Though most of this period was a time of economic prosperity, that prosperity was not distributed equally – on the contrary, the gap between rich and poor continued to widen. So
it’s no wonder what is defined as child maltreatment, which so often encompasses poverty itself, is likely to decline more slowly among Black families.
Where it is claimed that maltreatment among Black families increased, it is in the most subjective category – “emotional neglect,” and the more subjective the category, the more
vulnerable it is to racial bias. Confronted with the disproportionate rate of child removal among Black families,
child savers like to claim that it’s because of poverty – even though child savers also like to claim they never take away children because of poverty. That contradiction aside, there is no excuse for tearing apart a family just because the family is poor. And other studies, including one in which workers were given identical hypothetical cases, show that even when poverty is not a factor, workers are more likely to claim a child is “at risk” if the family is described as Black. 6
The data in NIS-4 provide more evidence that both class bias and racial bias pervade child welfare. The data suggest that Black children, because they are more likely to be poor, are more likely to be taken when family poverty is confused with neglect. But the data on “emotional neglect” suggest, once again, that Black children also are more likely to be taken because they are Black.
THE ROLE OF SUBSTANCE ABUSE: SURPRISINGLY SMALL
To hear the child savers tell it, virtually every case of child maltreatment involves drug abuse. But according to this study, all drug abuse, including alcohol, was a factor in 22 percent of cases. Similarly, notwithstanding the child savers constant efforts to define child abuse as a medical problem rather than a poverty problem, mental illness was a factor in 7.2 percent of cases.
UNINVESTIGATED CASES
Whenever an NIS report comes out, child savers raise the alarm about all the cases that went unreported. But NIS-4 includes some intriguing data – often, the more serious the allegation, the more likely it is that CPS did, indeed, know about it. CPS not only knew about, but investigated, about half of all the cases alleging all
forms of abuse under the harm standard, including 55 percent of the sexual abuse cases. They even knew about, and investigated, half the so-called emotional neglect allegations, which suggests they did a lot of harm to children and spent a lot of time spinning their wheels.
And it is important to remember that all NIS estimates of the number of cases of child abuse include those that CPS knew about and those it did not.
CONCLUSION
You don’t have to eradicate child poverty to eradicate child maltreatment – but clearly the best way to get value for child welfare dollars is by focusing on help to ameliorate the worst effects of poverty – day care to avoid “lack of supervision” charges, rent subsidies so children aren’t taken because the family lacks decent housing, and job training, so people can survive on one or two jobs instead of three – so they won’t be so tired that they supposedly “emotionally neglect” their children.
At a time when actual child abuse is significantly decreasing, this is a far better use of scarce funds than spending billions more to charge into families, tear them apart and place their children in what often is the most emotionally abusive and neglectful environment of all: foster care with strangers.
NOTES:
1 For details on the distortions in ECM’s campaign see these posts to the NCCPR Child Welfare Blog:
http://nccpr.blogspot.com/search/label/Every%20Child%20Matters)
2 The discussion of definitions is limited in the NIS-4 document itself, but there is a detailed discussion
in Andrea Sedlak, A History of the National Incidence Study of Child Abuse and Neglect, February 21, 200,
available online at https://www.nis4.org/NIS_History.pdf This document says the child must be “seriously”
endangered to be counted under the endangerment standard, but NIS-4 itself does not include the qualifier
“seriously.”
3 Adding further confusion: In some cases, the “endangerment standard” has a different meaning.
Rather than meaning a change from actual harm to possible future harm, in a few categories, it includes
maltreatment by a perpetrator other than a parent or guardian. In all other categories, NIS-4 looks only at
maltreatment by a parent or guardian.
4 This total combines three categories in the report, “serious” harm, fatalities, and “inferred” harm.
5 Study Findings: Study of National Incidence and Prevalence of Child Abuse and Neglect: 1988
(Washington: U.S. Dept. of Health and Human Services, National Center on Child Abuse and Neglect, 1988),
Chapter 6, Page 5.
6 For citations for this and other studies see NCCPR’s Issue Paper, Child Welfare and Race, available
online at: http://www.nccpr.org/reports/7Race.pdf |
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S.O. Registries - Fear w-o Function!
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By posted by Alex Marbury <alexm60@fastmail.fm>
Posted on 01.02.2010
Link to this research entry: [025] |
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This excellent paper by Amanda Y. Agan can be found in the Journal of Law and Economics. It shows the total ineffectieness of sex offender registries.
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Sex Offender Registries: Fear without Function? (October 2009) - Revise and Resubmit Journal of Law and Economics
SSRN Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_ID=1437098
I use three separate datasets and designs to determine whether sex offender registries are effective. First, state-level panel data is used to determine whether sex offender registries or public access to them decrease the rate of rape and other sexual abuse. Second, a dataset which contains information on the subsequent arrests of sex offenders released from prison in 1994 in 15 states is used to determine whether registries reduce the recidivism rate of offenders required to register compared with the recidivism of those who do not. Finally, I combine data on locations of crimes in Washington, D.C., with data on locations of registered sex offenders to determine whether knowing the locations of sex offenders in a region helps predict the locations of sexual abuse. The results from all three datasets do not support the hypothesis that sex offender registries are effective tools for increasing public safety.
Amanda Y. Agan, Un. of Chicago |
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Costs to Implement SORNA
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By posted by Shelley <or4balancedlaws@yahoo.com>
Posted on 11.01.2010
Link to this research entry: [024] |
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Refer in comments to Research Entry No. 024, Costs to Implement SORNA
and send to Shelley at or4balancedlaws@yahoo.com, with a copy to alexm60@fastmail.fm.
ANOTHER IMPORTANT SUGGESTION IS ATTACHED BELOW - please read and consider going to the url suggested to vote! alex
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From
JUSTICE POLICY INSTITUTE
¨The Costs of Implementing SORNA State by State¨
The Sex Offender Registration and Notification Act (SORNA)1, which mandates a national registry of people convicted of
sex offenses and expands the type of offenses for which a person must register, applies to both adults and children. By July
2009, all states must comply with SORNA or risk losing 10 percent of the state’s allocated Byrne Grant money, which
states generally use to enforce drug laws and support law enforcement.
In the last two years, some states have extensively analyzed the financial costs of complying with SORNA. These states
have found that implementing SORNA in their state is far more costly than the penalties for not being in compliance. JPI’s
analysis finds that in all 50 states, the first-year costs of implementing SORNA outweigh the cost of losing 10 percent of
the state’s Byrne Grant. Most of the resources available to states would be devoted to the administrative maintenance of the
registry and notification, rather than targeting known serious offenders. Registries and notification have not been proven to
protect communities from sexual offenses, and may even distract from more effective approaches.
Given the enormous fiscal costs of implementing SORNA, coupled with the lack of evidence that registries and notification
make communities safer, states should think carefully before committing to comply with SORNA.
Ohio determined that the cost of implementing new software to create a registry would approach a half million
dollars in the first year.2 The total estimated cost for complying with SORNA exceeds the Byrne funds Ohio would
lose if it did not comply.
• Installing and implementing software alone would cost $475,000 in the first year. The software would then cost
$85,000 annually thereafter for maintenance.
• Certification of treatment programs based on new standards and providing a description of a person on the registry to
the state’s Bureau of Criminal Identification and Investigation would cost another $100,000 annually.
• Ohio also lists other factors that would increase the cost of implementing SORNA, including salaries and benefits for
new personnel, new court and administration costs, and costs to counties and municipalities. These costs are in
addition to the $475,000 needed for software, but have not yet been quantified by the state.
• If Ohio chose not to implement SORNA, the state would lose approximately $622,000 annually from its Byrne
funds. However, the total estimated cost of software, certification of treatment programs, salaries, and benefits for
new personnel would exceed the lost Byrne funds.
Virginia determined that the first year of compliance with the registry aspect of SORNA would cost more than $12
million.3
• The first year of implementing SORNA would cost the Commonwealth of Virginia $12,497,000.
• The yearly annual cost of SORNA would be $8,887,000. Adjusted with a 3.5 percent yearly inflation rate,4 Virginia
would be paying more than $10 million by 2014.
• If Virginia chose to comply with SORNA, the state would spend $12,097,000 more than it would if it chose not to
implement SORNA and forfeit 10 percent of its yearly Byrne grant, a loss totaling approximately $400,000.5
As evidenced by these summaries, states can expect to incur significant costs as they attempt to comply with
SORNA. States should consider all possible areas in which increased expenditures will occur.
• New personnel
• Software, including installation and maintenance
• Additional jail and prison space
• Court and administrative costs
• Law enforcement costs
• Legislative costs related to adopting, and crafting state law
1 SORNA is Title 1 of the Adam Walsh Act.
2 Ohio Legislative Service Commission Fiscal Note & Local Impact Statement (Columbus, OH: Ohio Legislative Service Commission,
2007) http://www.lsc.state.oh.us
3 Virginia Department of Planning and Budget 2008 Fiscal Impact Statement (Richmond, VA: Department of Planning and Budget, 2008).
4 Oregon State University, “Yearly Inflation or Deflation Rate (CPI-U) 1915 -2005, in Percent.” April 24, 2008.
http://oregonstate.edu/cla/polisci/faculty-research/sahr/pc1915ff.htm
5 Office of Justice Programs, “JAG State Allocations,” April 23, 2008. http://www.ojp.usdoj.gov/BJA/grant/07JAGstateallocations.pdf
In every state, the first-year cost of implementing the Sex Offender Registration and
Notification Act outweighs the cost of losing 10 percent of the state’s Byrne money.6
SORNA Implementation
(These are the column headings for the amounts listed below)
1. Estimate for 2009
2. Byrne Money
Received in 2006-7
3. 10 Percent of
Byrne Money
ALABAMA $7,506,185 $3,178,628 $317,863
ALASKA $1,108,573 $565,971 $56,597
ARIZONA $10,281,201 $3,653,881 $365,388
ARKANSAS $4,597,925 $2,180,442 $218,044
CALIFORNIA $59,287,816 $21,876,819 $2,187,682
COLORADO $7,885,178 $2,725,489 $272,549
CONNECTICUT $5,680,602 $2,189,001 $218,900
DELAWARE $1,402,612 $1,248,534 $124,853
DISTRICT OF COLUMBIA $954,186 $1,804,991 $180,499
FLORIDA $29,602,768 $12,402,693 $1,240,269
GEORGIA $15,481,193 $5,594,288 $559,429
HAWAII $2,081,603 $933,732 $93,373
IDAHO $2,431,969 $1,170,003 $117,000
ILLINOIS $20,846,306 $8,501,000 $850,100
INDIANA $10,291,799 $3,696,033 $369,603
IOWA $4,846,488 $1,881,623 $188,162
KANSAS $4,502,553 $2,035,999 $203,600
KENTUCKY $6,879,497 $2,702,451 $270,245
LOUISIANA $6,963,401 $3,514,704 $351,470
MAINE $2,136,456 $1,172,583 $117,258
MARYLAND $9,112,724 $4,320,568 $432,057
MASSACHUSETTS $10,461,238 $4,353,201 $435,320
MICHIGAN $16,336,082 $6,793,169 $679,317
MINNESOTA $8,430,328 $3,061,831 $306,183
MISSISSIPPI $4,734,150 $2,065,269 $206,527
MISSOURI $9,534,548 $4,182,382 $418,238
MONTANA $1,553,611 $1,076,424 $107,642
NEBRASKA $2,878,281 $1,288,957 $128,896
NEVADA $4,160,944 $1,808,095 $180,810
NEW HAMPSHIRE $2,134,219 $1,192,435 $119,244
NEW JERSEY $14,088,206 $5,160,709 $516,071
NEW MEXICO $3,195,121 $1,879,901 $187,990
NEW YORK $31,300,125 $11,279,841 $1,127,984
NORTH $14,696,622 $5,460,983 $546,098
NORTH DAKOTA $1,037,592 $554,556 $55,456
OHIO $18,598,869 $6,223,825 $622,383
OKLAHOMA $5,867,138 $2,790,472 $279,047
OREGON $6,078,218 $2,251,312 $225,131
PENNSYLVANIA $20,165,479 $7,640,322 $764,032
RHODE ISLAND $1,715,760 $967,292 $96,729
SOUTH CAROLINA $7,149,123 $3,610,292 $361,029
SOUTH DAKOTA $1,291,426 $513,858 $51,386
TENNESSEE $9,985,946 $4,817,782 $481,778
TEXAS $38,771,924 $14,045,713 $1,404,571
UTAH $4,290,617 $1,557,034 $155,703
VERMONT $1,007,649 $630,419 $63,042
VIRGINIA $12,508,695 $3,943,036 $394,304
WASHINGTON $10,491,519 $3,538,816 $353,882
WEST VIRGINIA $2,939,046 $1,679,108 $167,911
WISCONSIN $9,085,630 $2,982,833 $298,283
WYOMING $848,009 $584,036 $58,404
6 These numbers are calculated by using the Virginia Department of Planning and Budget total ($12,508,694) divided by the predicted
number of people in Virginia in 2009 (U.S. Census 2007 multiplied by predicted 1 percent yearly growth). The cost per person ($1.59) was
then multiplied by the predicted number of people in all states in 2009. Virginia conducted the most comprehensive analysis of the potential
cost of implementing SORNA that was also available to the public.
7 The U.S. House of Representatives estimates that 2009 federal allocations for Byrne grants will return to 2006 levels, which total
approximately $200 million
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SUGGESTION from RSOL participant dachglobal@aol.com -
Every week they post selected votes to be on the website for citizens to vote on and it gives you the chance to submitt a tax cut idea as well. I am encouraging everyone to use the article listed on the reformsexoffender.org website (this research item, no. 024)with regard to how much it cost us to implement sex offender laws. Please submit your suggestion about sorna so that it can be posted
on the website for citizens to vote on.
Here is the website to submit the idea to cut costs on implementing the sex offender laws:
http://republicanwhip.house.gov/YouCut/ |
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Emerging Criminal War on Sex Offenders
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By posted by Terrence <tjwhite1963@gmail.com>
Posted on 07.01.2010
Link to this research entry: [023] |
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Comments should refer to Research Item No. 023, CRIMINAL WAR ON SEX OFFENDERS, and be sent to tjwhite1963@gmail.com, with a copy to alexm60@fastmail.fm
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URL -
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1456042
The Emerging Criminal War on Sex Offenders
Corey Rayburn Yung
The John Marshall Law School
Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Forthcoming
Abstract:
This article addresses four central questions. First, what is the difference between normal law enforcement policy and a 'war' on crime? Second, assuming such a line can be discerned, has the enactment of the Adam Walsh Child Protection and Safety Act ('AWA') in combination with other sex offender laws triggered a transition to a criminal war on sex offenders? Third, if such a criminal war is emerging, what will be the likely effects of such a transition? Fourth, if such a criminal war is emerging with substantial negative consequences, can it be stopped? By reviewing America’s history of criminal wars, primarily in the War on Drugs, the article identifies three essential characteristics of a criminal war: marshaling of resources, myth creation, and exception making. It concludes that the federalization of sex offender policy brought about by the AWA elevated law enforcement to a nascent criminal war on sex crimes. This change could have repercussions as substantial as the drug war has had on American criminal justice and society.
Keywords: sex offenders, criminal justice, war on drugs, war on crime, Adam Walsh, commerce clause, ex post facto clause, due process, confrontation clause
Accepted Paper Series
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The Biology of Blame
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By posted by Terrence <tjwhite1963@gmail.com>
Posted on 07.01.2010
Link to this research entry: [022] |
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Refer in comments to Research Item No. 022 and send to tjwhite1963@gmail.com, with a copy to alexm60@fastmail.fm.
Blame is what we have to get away from! Justice is what we strive for.
alex
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The Humane Principle and the Biology of Blame: Evolutionary Origins of the Imperative to Inflict
URL -
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1524257
John A. Humbach
Pace University School of Law
December 16, 2009
Proceedings of Global Conference on Perspectives on Evil and Human Wickedness
Abstract:
The idea that some people “deserve” to suffer has enormous social implications. People insist there is a moral right to cause human suffering. However, as the circle of humans deemed entitled to full human dignity grows wider, the next logical step is to adopt a general principle that any deliberate increase in human suffering is wrong, without exception Such a Humane Principle, to replace the old principle of “just deserts,” might be provisionally formulated as follows: "Any act to cause human suffering is wrong and must be avoided unless it is honestly meant as the most humane alternative that the situation presents, according equal concern to all who are affected." Resistance to such a principle is considerable because, unfortunately, people draw unwarranted moral conclusions from their feelings of blame. But these feelings are merely adaptations to conditions that have long ceased to apply. Causing deliberate harm to others has ceased to be either a socially adaptive or morally defensible mode of social control.
Keywords: blame, Humane Principle, evolution of morals, evolutionary psychology, evolving appetites for violence, legitimacy of violence, retribution, upward moral trajectory, just deserts
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Maine S.C. Decision on S.O. Law Retroactivity
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By posted by Joel <joelpent@comcast.net>
Posted on 23.12.2009
Link to this research entry: [021] |
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Please refer to Research Entry No. 021 and send to joelpent@comcast.net, with a copy to alexm60@fastmail.fm.
Also, see news item no. 0189 for a news story about this decision.
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2009 ME 130
Docket: And-08-358
Argued: February 10, 2009
Decided: December 22, 2009
Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, MEAD, and
GORMAN, JJ.∗
Majority: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, MEAD, and GORMAN, JJ.
Concurring: SILVER, J.
STATE OF MAINE
v.
ERIC S. LETALIEN
LEVY, J.
[¶1] The State of Maine appeals from a judgment dismissing a criminal
complaint charging Eric S. Letalien with failure to comply with the Sex Offender
Registration and Notification Act of 1999 (SORNA of 1999) (Class D),
34-A M.R.S. § 11227(1) (2008). The District Court (Lewiston, Stanfill, J.)
concluded that the retroactive application of SORNA of 1999, as applied to
Letalien, violates the prohibition against ex post facto laws contained in both the
United States and Maine Constitutions. The State asserts, among other things, that
the trial court erred in conducting its ex post facto analysis of SORNA of 1999 on
an as-applied basis and that a proper facial examination of SORNA of 1999
∗ Clifford, J., sat at oral argument and participated in the initial conference while he was a Justice, and,
on order of the Chief Justice, was authorized to continue his participation in his capacity as Active Retired
Justice.
2
demonstrates that because the statute is civil in intent and effect, it may be applied
retroactively without violating ex post facto principles. We agree that the
determination of the constitutionality of the retroactive application of SORNA of
1999 depends on a facial examination of the statute, and not on an as-applied
analysis as we previously suggested in Doe v. District Attorney, 2007 ME 139, 932
A.2d 552. We conclude that the statute imposes an ex post facto punishment as to
offenders sentenced in the years before the effective date of SORNA of 1999 for
whom registration was a required part of their sentence and who were subsequently
made subject to the more burdensome requirements of SORNA of 1999 after its
effective date of September 18, 1999. We therefore affirm the judgment. |
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REVIEW: "Sex Offenders," Provocative, Problematic Study
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By posted by Avendora <cfcwashington@hotmail.com>
Posted on 01.12.2009
Link to this research entry: [020] |
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Refer in comments to "Review, "SEX OFFENDERS," A Provocative, Problematic Study, and send to cfcwashington@hotmail.com, with a copy to alexm60@fastmail.fm. The Review was on Metapsychology Online Reviews - the url is
http://metapsychology.mentalhelp.net/poc/view_doc.php?type=book&id=5272&cn=400
RSOL differs with many of the findings in this book, but we often publish articles or reviews with which we disagree in the interest of discussion.
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REVIEW for Metapsychology Online Reviews
by Terry Burridge
of the book
SEX OFFENDERS
by Fabian Saleh, et. al.
This is a weighty tome, which is appropriate considering the serious subject matter- sexual offenders and their treatment, prognosis and etiology. There are thirty chapters under eight sections covering areas like the Neurobiology / Neuropsychology of sexual offending; their Assessment and Diagnosis and their Treatment. These general sections are complemented by work on Juvenile offenders, Special Populations and Forensics.
The book opens with an introductory essay by Peter Fagan, who works in John Hopkins University. He asks how might we determine "normal" in relation to sexual behavior. He offers a framework into which to fit sexual behavior. Is "abnormal" behavior a consequence of a disease of some kind-the obvious example being of the behavior sometimes seen in patients in the Manic phase of Bi-Polar or in other floridly psychotic states? His next category is what he calls the Dimension perspective i.e. how does this person's behavior fit with a comparable "control" population? He adds a rider to these neat solutions by pointing out how much variance can be found within different communities. Thus the incidence of intercourse in couples aged 20 will vary to that of a couple in their 50's. And beyond this, the activity levels of a couple in their 20's might well vary depending upon the type of work they do; whether they are in an urban or rural community etc. The list of variables and their effects is long. And in the end it is this approach that is limiting. One might record that X number of individuals engage in sexual behavior with children. Or that Y number of young men engage in sexual activity with pensioners. These are simply facts of life. What one needs is a way for any society to decide what is acceptable and what is not. (And even here one runs into the classic debate about social relativity. Are there some behaviors that should be anathematized in any society? Can it ever be acceptable for a baby to be subjected to sexual behavior? Is rape ever acceptable? Can it ever be right for an individual to have sex with a corpse? If so, who makes this decision? Fagan suggests that science alone is an inadequate guide. "Not to include the disciplines of ethics, philosophy, and theology into the discussion of sexual normality is to reduce the question to skills of the scientific disciplines. Many will be content, even praise, that limitation. However, this author believes that the fullest exploration of human sexuality requires not only science, but also wisdom. For this we must turn to our wisdom traditions for assistance." (P.11) This takes us some way towards a morality of sexual behavior and a context in which Law may be made. (The nearest "Law" that I could come up with was that a guiding principle of sexual behavior should be that it is consensual. But it doesn't take much skill to find the flaws in this rule. Perhaps this is why this volume of essays eschews writing about morals or moral behavior and limits itself to the issues set out in the title.)
The next chapter, by Gregory Lehne, outlines some of the behaviors that have been or are currently, classified as paraphilic (abnormal sexual behavior). Under "A" he lists 28 activities covering such behaviors as acoustophilia -arousal by sounds; acrotomophila and apotemnophilia - amputee partner or self. (A "Google" search for acrotomophilia gave 95, 000 hits including a forum; a Wiki and videos. And that for an activity that I had never heard about.) The list becomes almost comical. There are recognized terms for those who are attracted a woman with a penis (andromimetophilia); those who are sexually aroused by a partner of a different height (anasteemaphilia) etc., etc. Being aroused by sounds does not seem to be too problematic; another activity, autonephiophilia (a love of filth or obscenities) might be more difficult although I did discover a shirt maker who will make an outfit to appeal to a range of paraphilic tastes! The core of his essay, however, is to illustrate the relative emotional poverty of paraphilics. He takes the idea of Lovemaps and explores their use by paraphilics. A Lovemap is, "... the development or template in the mind or brain depicting the idealized partner and program of sexuerotic imagery or behavior." (P.14) Lovemaps, he continues, "... can be thought of like a mental map composed of many different terrains and political/ social territories. Some individuals' Lovemaps include vast areas, while others are more limited in scope- some people have a world of possibilities while others have a small village of choices to explore." (P.14) (It was interesting and rather heartening to read Lehne pointing out that the Internet may be a source of creative sexual exploration. It may provide a safe environment in which to explore different areas of one's Lovemap. But he concludes his paper by commenting that "Paraphilias are vandalized lovemaps characterized by very high specificity of sexual content and high sexual drive or motivation." (P.24)And that the Web can provide a reinforcement of these drives that might otherwise not be able to be so easily nurtured.
Langevin discusses the neuro-psychology of sex offenders, commenting that many sex offenders have "... significant deficits that may be related to the etiology of the sexual disorders they suffer." (P.33) lt is unclear what might cause these deficits although one wonders about the early attachment patterns of sexual offenders. And if there is neurocognitive damage, to what extent do we consider these individuals to be accountable for their actions? Should we lock them away in a prison or attempt some kind of therapeutic work with them? The chapters on treatment make for fascinating reading. These chapters look at the three main attempts at treatment which are physical, psychological, and pharmacological. Physical treatment is orchiectomy, strictly speaking, the removal of one or both testes. (The authors of this chapter make it clear that this differs from the broader term "castration" which has been used "... for control, domination, punishment, mutilation, and political reasons... since antiquity". (P.171) in their view, orchiectomy is a specific surgical intervention for a specific purpose. They cite a recent meta-analysis by Losel and Schumucker (2005) which reviewed 69 studies "... and found that surgical castration and hormonal medication showed larger effects on sexual recidivism than psycho-social intervention." (P.171) This left me wondering how I would feel as a sex offender if this was an option offered to me. Would I feel relieved because the chances of my reoffending were now much reduced or would I feel that I was only being given symptomatic relief without any attempt being made to help me understand my behavior? And this dichotomy in itself raises questions about why individuals offend. And how much "choice" do I have about my conduct?
This issue of what it is that one treats is touched on by Saleh in his paper on pharmacological treatments for paraphilia. He notes that to prescribe "... a medication to a paraphilic sex offender that has little-to-no real impact on his or her underlying paraphilia could have devastating consequences for both the offender... and the public at large." (P.201) Notwithstanding this rider, Saleh does recommend the use of some medications, notably those that lower testosterone levels which, he says, "... reduce the frequency, severity, and intensity of paraphilic symptoms within a short period of time". Pharmacological treatment, he notes, parallels the efficacy of orchiectomy in reducing rates of recidivism. One is now left with psychological treatment-a chapter that I found encouraging, but that might reflect my naïve faith in the value of psychological interventions.(I have never worked this sexual offenders only, occasionally, with adult survivors of CSA. Thus my optimism is not, necessarily, critically informed!)
Marshall, Serran, and O'Brien have written on psychological treatment. They begin their chapter with a brief overview of the various theories about the psychological underpinnings of paraphilia and the necessary outcomes for these models to be effective. The early psychological work aimed simply at changing sexually deviant behavior, the assumption being that classical conditioning was what prompted paraphilic behavior and kept it alive. So, presumably, classical conditioning could be used to re-direct deviant sexuality. (Having recently watched "A Clockwork Orange" it is hard not to be very skeptical about his view of human behavior. Nor to be skeptical about the efficacy of Pavlovian techniques in bringing about lasting change.) The model that these workers espouse is a variation on Motivational Interviewing – the Good Lives Model. The aim of this program is not only to prevent relapse and to teach risk avoiding behavior but to help an offender to develop positive life skills. They quote research that shows that "... human's characteristically seek what has been called a 'good life'... made up of the pursuit of a list of needs covering various areas of life functioning (e.g. knowledge, mastery, autonomy, happiness, sexual satisfaction.) ... sexual offenders commit their offences in the vain hope of achieving some or all of these goals..." (P.161) The good Life model proposes to help offenders to learn how to achieve these common goals in an appropriate way. And as their colleagues in pharmacology and surgery, Marshall et al cite studies that show the efficacy of this model. (We now need a Meta review of all the Meta studies purporting to demonstrate the efficacy of any given intervention with sexual offenders!)
As this review shows, there is a wealth of literature about sex offenders. This book is probably one of the most comprehensive. Each chapter comes with an extensive set of references to other work so one could simply delve deeply into any single aspect of sex offending. Trying to grasp the whole scope of this volume of essays is very demanding-and inadvisable. (Much better to use it as a base camp from which to plan one's major expedition into the field of paraphilia.)
In closing, whilst I found this book fascinating and was intrigued by the various discussions, I kept on coming back to something more personal. Those who have contributed to this book all work with a group of patients who do not immediately evoke one's sympathy. One is sympathetic to any obvious victim of sexual offending-a rape victim, a child who has been sexually abused, etc. Yet the "unseen" victims here are also the perpetrators. My own Lovemap is a conservative place, peopled with desires that are easily and safely satisfied. I am not sure how it would be to live in a "love country" populated with desires that are dark and dangerous and put others at risk.
© 2009 Terry Burridge
Terry Burridge is a Senior Lecturer in Mental Health Nursing at Buckinghamshire New University. He has spent most of his professional life as a psychiatric nurse and now spends considerable time and energy trying to inspire future psychiatric nurses to be the best kinds of nurses that they can be! He is very much influenced by psychoanalytic thinking and sees analytic theory as offering a valuable critique to many other areas of human activity. He can be contacted at Terry@dancingbears.co.uk
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Hypervigilance Does Not Work!
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By posted by Alex Marbury <alexm60@fastmail.fm>
Posted on 26.10.2009
Link to this research entry: [019] |
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Comments should refer to Research Entry No. 019, "Hypervigilance." Send comments to alexm60@fastmail.fm
This major new book, by a Florida professor, should lay to rest once and for all the notion that massive public registration of assorted and very different sex offenders is protective of children....(Alex)
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Chronicle of Higher Education
October 25, 2009
Review of Prof. Wayne A. Logan's book, "Knowledge as Power: Criminal Registration and Community Notification Laws in America" (Stanford University Press, 2009.)
URL for this article:
http://chronicle.com/article/A-Communitys-Right-to-Know/48888/?key=QG1zJ15gP31NZyJiKSNGenEDbnp7IUxxby9FYHoabVFX
A Community's Right to Know
By Nina C. Ayoub
In recent weeks, a bizarre enclave in Miami has made news once again. At issue are dozens of men living under the Julia Tuttle Causeway in a mass of shelters bordered by water. They are registered sex offenders for whom the causeway is their official address in concrete exile. The men say they have little choice, given a local ordinance that bans sex offenders from living within 2,500 feet of a school or park. Battling over their fate are Miami-Dade County , the State of Florida , and the American Civil Liberties Union.
While the Tuttle enclave has received some national notoriety, such sex-offender ghettos are not unique to Miami or to Florida . They have sprung up across the country where similar laws apply. Still, given their repellent constituents, should we care?
We should, says Wayne A. Logan, a professor of law at Florida State University . For Logan , such ghettos are among the dangerous collateral effects of statutes now in force federally and in all 50 states. His new book, Knowledge as Power: Criminal Registration and Community Notification Laws in America (Stanford University Press) combines a history of such regulations with a look at their unintended consequences and a plea for greater empirical scrutiny.
The historical antecedents of today's registration laws are identification systems in the 19th century, Logan writes. In France , where the term récidiviste originated, the penal reformer Arnould Bonneville de Marsangy initiated a practice of sending the records of criminals' convictions and sentencing to their place of birth. He assumed that criminals, no matter how nomadic, would be "restrained by the dread of this local publicity of their misdeeds."
In America , Logan says, the 1930s marked the development of registration systems in which criminals were forced to be "complicit" in their own surveillance, adding to the "psychic force" of the system. Such laws expanded from local to statewide jurisdictions, but registries were for police eyes only. In later decades, registration laws drew little public interest until a gruesome crime revived and transformed them.
In 1989, a 7-year-old boy in Tacoma , Wash. , was abducted, raped, and sexually mutilated by a recently released sex offender with a long record of attacks on children. The case led to a registration law with a new wrinkle—community notification was permitted. Similar laws emerged rapidly, often named after child victims. Most famous was Megan's Law in New Jersey , after Megan Kanka, who in 1994 was raped and killed by a neighbor, a convicted sex offender who had lured the 7-year old to his house with the promise of seeing a puppy. Megan's Law did not just permit community notification, it mandated it.
The overt personalization of sex-offender laws has made constitutional or other criticism of any of their elements problematic, Logan observes. Critics, he writes, risk being branded as "anti-victim," or worse, "anti-this victim." They are also faced with the undeniable power of the idea that "if just one child is saved," little else matters.
Still, major legal challenges have occurred, even if unsuccessful. In the case of Smith v. Doe (2003), the U.S Supreme Court ruled 6 to 3 that registration was not a form of punishment and that its retroactive application in an Alaska statute did not violate the Ex Post Facto Clause of the Constitution. That same year, in a unanimous ruling in Connecticut Dept. of Public Safety v. Doe, the court rejected the notion that sex offenders' due-process rights were violated by posting their names without a hearing. There have also been worries about the inclusion of juveniles on the lists, possibly for a lifetime.
Along with constitutional concerns, however unpopular, about sex offenders' rights, there has been some attention to vigilante attacks on registrants, among them a handful of murders, as well as harassment of offenders' families, including their children. Harassment has happened as well to wholly unrelated people unlucky enough to live at an offender's former address or be the victim of a mix-up in registries that Logan says are often error-filled and needing updates. Yet with notification laws understandably popular with the public, such concerns are not likely to go far. Nor are critics' arguments that notification laws go against American traditions of criminals' deserving a second chance after punishment. The public seems more likely to embrace Chief Justice William H. Rehnquist's view in 2002 that perhaps a sex offender "deserves stigmatization."
Logan's book brings up issues that may prove more persuasive to the public and more conducive to fine-tuning the statutes. One issue is that of recidivism. There are widespread misconceptions, he says, about the rates of sex-offender recidivism, which vary greatly depending on the type of crime. Only a handful of states mandate any kind of risk assessment be involved in placing offenders on the registries, which now number more than 600,000 people.
The registration and notification laws may be giving the public a false sense of security, Logan argues. The lists trade on the figure of the bogeyman stranger. However, he points out, the overwhelming majority of sexual crimes against children are committed by "familiars"—family members, friends, acquaintances. In addition, he notes, there are the large number of sex crimes committed by first-time offenders, who by definition won't be registered. Registries may also include the dead, the deported, as well as perpetrators of crimes such as public urination whose presence on the lists does little to promote public safety.
A larger issue is how to deal with the gaps in a system that, as one sheriff put it "just keeps honest offenders honest." The National Center for Missing and Exploited Children estimates that more than 100,000 offenders are unaccounted for. Yet there is much support for highly restrictive residency regulations, even if they may push some offenders underground and encourage recidivism. In Iowa , for example, Logan writes, the number of "lost" registrants doubled with the passage of a state law limiting where they could live.
The author considers other problems that arise when governments essentially become information brokers, leaving the communities responsible for their own protection.
Reached by phone in Florida , Logan had comments on the case involving Jaycee Dugard, who was recently reunited with her family after having been abducted in 1991. Dugard had been living in the backyard of her abductor, along with two daughters allegedly fathered by Phillip Garrido, her accused molester. In terms of sex-offender registries, Logan notes, the alleged molester might be considered a successful story of compliance. He was a registered sex-offender in California . But Logan points out that Garrido went outside his own community to find his victim. Today, with some 60,000 people on California 's registry, Logan says, no member of the public will be able to keep up. There is a saturation, a tipping point, he says. "Hypervigilance does not necessarily achieve the goal here."
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US Ct. Rules Retroactive Part of SORNA unConstitutional
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By posted by Rod <letsgetreal50@gmail.com>
Posted on 10.09.2009
Link to this research entry: [018] |
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Refer in comments to Reserach Item No. 018 and send to letsgetreal50@gmail.com, and a copy to alexm60@fastmail.fm - I´ll also send them to others who sent in this decision.
---------------------------
URL
http://cfcoklahoma.org/New_Site/index.php?option=com_fireboard&Itemid=0&func=view&catid=21&id=2844#2844
September 10, 2009
From Sentencing Law & Policy Blog
Atty. Douglas A. Bermanç
Professor of Law
Ohio State University
Ninth Circuit panel finds retroactive part of SORNA unconstitutional
The Ninth Circuit, in an lengthy panel opinion authored by Judge Reinhardt, today declares in US v. Juvenile Male, No. 07-30290 (9th Cir. Sept. 10, 2009) (available here) that part of the federal Sex Offender Registration and Notification Act is unconstitutional as applied to former juvenile offenders. Here is a key paragraph from the start of the unanimous panel opinion:
We must decide as a matter of first impression — in our court and in any other circuit court — whether the retroactive application of SORNA’s provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA’s passage violates the Ex Post Facto Clause of the United States Constitution. In light of the pervasive and severe new and additional disadvantages that result from the mandatory registration of former juvenile offenders and from the requirement that such former offenders report in person to law enforcement authorities every 90 days for 25 years, and in light of the confidentiality that has historically attached to juvenile proceedings, we conclude that the retroactive application of SORNA’s provisions to former juvenile offenders is punitive and, therefore, unconstitutional.
For a host of reasons, this ruling seems likely to get considerable attention and scrutiny from federal officials in other branches as well as perhaps from the full Ninth Circuit and/or the Supreme Court. And I hope to have time to comment on the ruling in some detail once I get a chance to read it closely tonight.
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VERA Institute Report on U.S. S.O. Policy
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By posted by Chris Dorning <cldornin@aol.com>
Posted on 24.07.2009
Link to this research entry: [017] |
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Refer in comments to Research Entry No. 017, ¨VERA INSTITUTE REPORT,¨ and send to Chris Dornin at cldornin@aol.com.
The full report can be found and downloaded from www.vera.org.
The footnotes have been omitted from this version. Please see original for documentation. (Alex)
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THE PURSUIT OF SAFETY
Sex Offender Policy in the United States
Tracy Velázquez
Vera Institute of Justice
September 2008
The Pursuit of Safety: Sex Offender Policies in the United States
(This report was prepared by the Vera Institute of Justice under grant 2006-WP-BX-K329 awarded by the Bureau of
Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also
includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and
Delinquency Prevention, and the Office for Victims of Crime. Opinions expressed in this document are those of the
author and do not necessarily represent the official position or policies of the U.S. Department of Justice or the Vera
Institute of Justice. © 2008 Vera Institute of Justice. All rights reserved.)
Additional copies can be obtained from the communications department of the Vera Institute of Justice, 233
Broadway, 12th floor, New York, New York, 10279, (212) 334-1300. An electronic version of this report is available
for download on Vera’s web site, www.vera.org.
Requests for additional information about the research described in this report should be directed to
contactvera@vera.org.
Executive Summary
Local, state, and federal policymakers have paid ever
more attention to sex offenses over the past 20 years. In
the wake of several high profile crimes by strangers
against children in particular, they have crafted a
growing body of legislation intended to protect the
public from sexual predators. This legislation has
expanded the scope of crimes that qualify as sex
offenses, over the past decade more than doubled the
number of people required to register as sex offenders,
increased sentences for people found guilty of sex
offenses, and established strategies designed to manage
convicted sex offenders after their incarceration.
Examples of these latter strategies include registration,
community notification requirements, residency
restrictions, electronic monitoring, and civil
commitment.
The proliferation of these responses has generated
little consensus about which available strategies are
most effective. Consequently, many policymakers
concerned about using public funds to maximize
outcomes (consistent with the principles of fairness and
justice) understandably are confused about their options
for deterring would-be offenders, reducing recidivism,
and incapacitating the most dangerous offenders. With
support from the Bureau of Justice Assistance (part of
the U.S. Department of Justice, Office of Justice
Programs), the Center on Sentencing and Corrections at
the Vera Institute of Justice conducted a nationwide
review of current sex offender laws, policies, and trends.
This report represents the results of that systemic
analysis.
Analysis reveals that the public supports current
national legislative focus on responding to sex offenses
and presume that these responses have contributed to the
drop in sex offenses that has been recorded in recent
years. However, it is unclear whether any of these
measures have had a significant impact on sex offense
rates. In large part, this is because most policies are
aimed at predation by strangers, whereas sex offenses
are more often committed by family members and
acquaintances. In addition, a concurrent overall decrease
in violent crime makes it difficult to identify the
influence of the sex offender legislation on reductions in
sexual offending. And several policies—particularly
residency restrictions and community notification—may
have negative impacts on public safety due to the
impediments they create to successful reintegration of
offenders who have completed their sanctions.
Registration itself appears to somewhat reduce
recidivism, but not for offenses against strangers.
Electronic monitoring has shown some positive
outcomes in some jurisdictions while having little
impact in others, particularly those where it has been
recently implemented. And while effective at
incapacitating offenders, civil confinement is four times
as expensive as incarceration and to date has not been
particularly successful at treating offenders.
Finally, it appears that the public opinion that often
drives policy in the sex offender realm is based on the
belief that sex offenders are dangerous strangers who are
apt to victimize children and re-offend. In reality,
however, most sex offenders don’t re-offend, and the
definition of a sex offender is broad and encompasses
different types of offenses, some more severe than
others. Moreover, children are more at risk of
being sexually victimized by a family member or other
person known to them than they are by a stranger living
a block away from their home or school.
--------------------
Introduction
At present, there are more than 636,000 registered sex
offenders in the United States—approximately one in
500 Americans.1 However, given that 99 percent of all
sex offenders who have been released from prison are
men, it is perhaps more meaningful to state that more
than one in 160 adult males are registered sex
offenders—and to point out that this figure has more
than doubled over the past decade.2 Although there is no
way to know the total number of sex offenders in all
state and federal prisons due to variations in state data
collection and registration requirements, sex offenders
clearly represent a significant percentage of all inmates.
From data that was gathered via public sources and
direct communication with state correctional
departments, most states indicate that between 10 and 20
percent of prisoners are sex offenders; however, in some
states, the rate is as high as 28 percent.3
While high-profile sex crimes routinely grab
headlines, the question of how well current sex offense
laws are working rarely has been examined. This report
provides an overview of sex offense policies, identifying
key trends and examining what is known about the
effectiveness of different approaches at meeting their
aims. Following a brief history of sex offender laws and
a discussion of some of the current issues in the field,
the report examines six significant trends in recent sex
offender legislation:
• Stricter Sentencing: Mandatory sentences and
longer sentences without parole or early release
are becoming more widespread.
• Enhanced Registration Requirements: More
information is being collected on offenders, the
list of crimes for which registration is required
has grown, and registered offenders are being
required to update registration information at
more frequent intervals.
• Expanded Community Notification: While
specific community notification requirements
vary considerably from state to state, the
practice of notifying the community of the
presence of sex offenders has become more
widespread.
• More Residency Restrictions: Residency
restrictions have ballooned over the past five
years. However, these restrictions appear to
have few concrete advantages and significant
negative impacts on offender reintegration and
public safety.
• Spread of Electronic Monitoring: In recent
years, global positioning system (GPS)
technology increasingly has been used to
monitor the activities and whereabouts of sex
offenders.
• Growth of Civil Commitment: Many states
now keep high-risk sex offenders locked up
indefinitely—even after they have served the
maximum prison term—through court orders
placing them in facilities that provide some
level of sex offender treatment.
In our examination of these trends, we also discuss the
effectiveness (in terms of improvements to public safety
and reduced recidivism rates), the costs, and the legal
challenges to specific policies. Finally, we have included
sex offender legislation for every state in the appendix.
Who is a Sex Offender?
For the purposes of this report, a sex offender is a person
who has been convicted of a crime that requires
registration as a sex offender.
There are numerous such crimes. Federal guidelines
call for the registration of people convicted of sexual
abuse or aggravated sexual abuse. They also call for the
registration of people convicted of a number of other
crimes when a minor is involved, including kidnapping
or false imprisonment except by a parent; criminal
sexual conduct; solicitation to engage in sexual conduct
or practice prostitution; use in a sexual performance; and
production or distribution of child pornography.1
Many states have gone beyond the federal
guidelines by extending the list of crimes that require
registration. Among the offenses that have been added to
state registration lists are voyeurism, public exposure,
adultery, giving obscene material to a minor, displaying
obscene material on a bumper sticker, and bestiality. In
some states, a person can be required to register as a sex
offender for possessing computer-generated images of
virtual children; in other states, registration is required
only for those who possess images of actual people
under age 18.
The Adam Walsh Act of 2006 adds additional federal
registration guidelines that will expand the definition in
a number of ways; for example, a registerable sex
offense now will include any criminal offense that has
an element involving a sex act or sexual contact with
another person. While states are not legally obligated to
adopt the federal definition (or other provisions of the
Act), they stand to lose federal funds if the Act is not
implemented by July 2009.5
4 State appendices are generally current as of February 2008 and may
have been amended since that time. Please refer to each state’s
complete statutes for the most up to date information.
THE FIRST WAVE OF U.S. SEX OFFENDER
LAWS: 1937 – 1955
While sex crimes—and the punishment of those
crimes—have long been a part of the fabric of our
society and our penal codes,6 modern sex offender
legislation in the United States can be traced to the
period between 1937 and 1955, when, in response to
several high-profile crimes, 26 states enacted “sexual
psychopath” laws. These laws generally committed
people who were guilty of what are now referred to as
sex offenses to psychiatric facilities. Many of these laws
were later struck down by the courts on due process
grounds. Others fell into disuse as hopes for a “cure” for
“sexual psychopathy” diminished and punishment and
incarceration came to be viewed as a more appropriate
response to sex offenders.7
The practice of requiring offenders to register began
in the 1930s in response to the increased mobility of
criminals. At the time, offender registries were viewed
primarily as tools for law enforcement, which needed a
way of keeping track of high-risk offenders.8 Registries
were generally operated at the local level; they primarily
targeted gangsters rather than sex offenders. In 1937,
Florida enacted the first statewide registration law for
certain felons.9 The first state registration law that
focused specifically on sex offenders was passed in
California in 1947. By the end of the 1980s, 12 states
had enacted sex offender registration laws; none of these
states distributed offender information to the public.
THE SECOND WAVE OF SEX OFFENDER LAWS:
1989 – 2008
The past 20 years have witnessed a steady expansion of
legislation around sex offenses in response to a number
of high-profile child abductions, sexual assaults, and
murders. Among the most notable of these incidents are
the following:
• In 1989, Jacob Wetterling, age 11, was
kidnapped from his neighborhood in St. Joseph,
Minnesota. No perpetrator was ever charged,
and Jacob has never been found.
• Also in 1989, a 7-year-old Tacoma,
Washington, boy was sexually mutilated by a
sex offender who had been released on bail.
• In October 1993, Polly Klaas, age 12, was
sexually assaulted and murdered after being
kidnapped from her home in Petaluma,
California. The perpetrator was a paroled sex
offender with a long rap sheet.
• In July 1994, Megan Kanka, age 7, was
sexually assaulted and murdered by a convicted
sex offender after being kidnapped from her
neighborhood in Hamilton Township, New
Jersey.
• In February 2005, Jessica Lunsford, age 9, was
abducted from her Homosassa, Florida home
and raped by a convicted sex offender. She later
died after being buried alive in a trash sack.
In the aftermath of each of these crimes, the state where
the incident occurred responded by passing legislation.
In 1990, for example, in the wake of the Tacoma killing,
Washington State passed the Community Protection Act,
a comprehensive set of laws that increased prison terms
for sex offenders, established registration and
notification laws, and authorized civil commitment of
sexually violent predators. Similarly, Minnesota
implemented a state sex offender registration act in 1991
in response to the abduction of Jacob Wetterling.
California passed its “three strikes” law in 1994, largely
in response to the murder of Polly Klaas. Also in 1994,
New Jersey enacted Megan's Law, which required active
community notification whenever a sex offender moved
into a locality. Many of these laws were later emulated
in states around the country.
1994: Sex Offense Legislation Attains Federal Level
with the Jacob Wetterling Act. In 1994, the federal
government responded to the increase in state sex
offense legislation by enacting the Jacob Wetterling
Crimes Against Children and Sexually Violent Offender
Registration Act. This law calls for states to implement a
registry of sex offenders and those convicted of certain
crimes against children.10 Over the next few years, a
number of key amendments were added as well:
• 1996: A federal version of Megan's Law
requires states to establish a community
notification system. Also, the Pam Lychner
Sexual Offender Tracking and Identification
Act of 1996 requires lifetime registration for
recidivists and offenders who commit certain
aggravated offenses.
• 1998: An amendment to the Jacob Wetterling
Act calls for stricter registration requirements
for sexually violent offenders; registration of
federal and military offenders; registration of
nonresident workers and students; and state
participation in the National Sex Offender
Registry.
• 2000: The Campus Sex Crimes Prevention Act
requires sex offenders to report information
regarding enrollment or employment at an
institution of higher education and to provide
this information to local law enforcement
agencies.11
SORNA: The Next Wave of Federal Legislation.
In 2006, Congress passed the Sex Offender Registration
and Notification Act (SORNA), which is also known as
the Adam Walsh Child Protection and Safety Act, in
memory of a boy who was abducted from a mall and
murdered in 1981. In an indication of the tremendous
support for this legislation, both houses passed it on a
voice vote. SORNA further extended the federal
government’s influence over the direction and scope of
sex offense policy. It called for increased registration
requirements for states; it also called for a number of
studies (to date unfunded) on sex offender policies.13
Finally, SORNA attempted to create a federal civil
commitment program. The viability of this provision
may be in doubt, however; at least one federal court has
held that such a program is unconstitutional.14 Another
SORNA provision may also be in doubt: federal courts
in two states have held that the United States
As is true of other federal sex offender laws, the
federal government cannot directly require states to
implement SORNA provisions. Instead, the legislation
specifies that states that fail to implement its provisions
within three years of its passage stand to lose 10 percent
of their Justice Assistance Grant funds. For many states,
complying with SORNA guidelines will require
significant legislative changes.
Current Issues in Sex Offender Policy
The recent wave of sex offender laws has spurred
discussion about the impact of those laws on the
criminal justice system—especially in light of the drop
in crime rates over the last few decades and the public’s
strong support for strict sex offender laws.
WHAT IS BEHIND THE RECENT WAVE OF SEX
OFFENDER LAWS?
There have been numerous efforts to account for the
recent wave of sex offender laws—especially in light of
the fact that violent crime rates, including those for sex
offenses such as rape, have been in decline for 30 years
(see figure 1).16 Some sociologists believe that the recent
wave of sex offender laws has been the result of a
“moral panic,” an exaggerated public response to a
perceived threat.17 However, as figure 2 shows, 93
percent of offenses against children are committed by
family members and acquaintances; the “stranger
danger” crimes, which spurred the creation of most sex
offense laws, are relatively rare. These observers argue
that changes in the media—in particular, the rise of 24/7
cable news stations and Internet news sites—have
increased public awareness of sex crimes, with the result
that many people now believe that crimes against
children are on the rise. According to this viewpoint,
policymakers have simply responded to the public’s
demand for countermeasures. As one legislator recently
told a group of researchers, “I can’t go anywhere
without someone asking me about some [sex offense]
they heard on the news, ‘What are you doing about
that?’”18 Some also point out that the first wave of sex
offender laws in the United States—the one that
occurred between 1937 and 1955—also coincided with a
major advance in communications, the advent of
television as a presence in the national media.
According to another point of view, there in fact
may be more high-risk sex offenders on the streets today
than in the past, despite the overall decrease in crime
rates. Proponents of this view argue that determinate
sentencing laws—laws that specifically define the
amount of time that a person will serve for a given
crime—have created a situation in which some high-risk
sex offenders are released earlier than they would have
been under prior indeterminate sentencing systems in
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High Recidivism of S.O. Is `Old Wives Tale.`
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By posted by anonymous <alexm60@fastmail.fm>
Posted on 21.06.2009
Link to this research entry: [016] |
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Refer comments to alexm60@fastmail.fm - refer to Research entry no. 0116.
SEE ALSO COMMENT BELOW THE RESEARCH ARTICLES
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NOTES ABOUT COURT CASES:
In United States v. Mound, 157 F.3d 1153, 1154, (8th
Cir. 1998) (en banc), four dissenting Judges cite Law Review articles citing statistics finding the recidivism rate of released sex offenders is the second lowest rate of recidivism of all convicted felons. In State v. Krueger, Case No. 76624 (December 19, 2000, Eighth Judicial District of Ohio, unreported), two female Judges reversed a Sexual Predator adjudication, finding the statute is based on a false assumption and in essence, an "old wives tale" of popular beliefs contradicted by empirical data.
REPORTS ON RECIDIVISM OF S.O.S
By writing the National Criminal Justice Reference Center, P.O. Box 6000, Rockville, Maryland 20849-6000, you can obtain the following reports.
NCJ-163392 (February 7, 1997), Sex Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault, finds the recidivism rate of 2,214 convicted rapists released from prison was 7.7% after three years. The only category of crimes with a lower recidivism rate are those persons convicted of murder (6.8%).
NCJ-193427 (June, 2002), Recidivism of Prisoners Released in 1994, finds the recidivism rate of 3,138 convicted rapists released from prison was 2.5% after three years. The only category of crimes with a lower recidivism rate are those persons convicted of murder (1.2%).
IMPORTANT FIRST STUDY BY THE ORDC - LONG KNOWN FACTS ABOUT LOW S.O. RECIDIVIMS RATES
In April, 2001, the Ohio Department of Rehabilitation and Correction
(ODRC) released a report also on the recidivism rate of released sex
offenders. In Ten-Year Recidivism Follow-Up of 1989 Sex Offender
Releases, Office of Policy, Bureau of Planning and Evaluation, Paul
Konicek, Principle Researcher, (available at www.drc.state.oh.us), the recidivism rate of 879 sex offenders released from Ohio’s prisons in 1989, after ten (10) years, was found to be 8% for new sex offenses.
The ODRC study finds its results as typical, citing to:
1) Gibbons, Soothill, and Way, found in Furby, Weinrott &
Blackshaw, 1989. (Twelve year study finding sex offender recidivism
rate of 4%).
2) Gibbons, Soothill, and Way 1980, found in Furby, Weinrott &
Blackshaw, 1989. (Thirteen year study finding sex offenders
recidivism rate of 12%).
3) Hanson & Bussiere, 1996. (Mega-analysis of sixty-one sex
offender studies with a total of 28,972 sex offenders finding
recidivism rate for new sex offenses five years after release was
13.4%).
4) New York Department of Corrections, nine year follow-up study.
Finding a 6% rate of recidivism for new sex offenses.
(These studies are cited on page 11 of the ODRC report.)
On page 15 of the report, the overall findings are summarized.
The ODRC finds, "Contrary to the popular idea that sex offenders are repeatedly returning to prison for further sex crimes, in this population a sex offender recidivating for a new sex offense within 10 years of release was a relatively rare occurrence." Id. at page 15, ¶ 4.
The entire purpose of the Sexual Predator, "Megan’s" Laws is to
protect the public from sex offenders, who, according to the "compelling government interest" expressed in the statute at section (A)(2), have a "high risk" of committing new sex offenses once released from prison.
-----------------------------
OPINION COMMENT OF RSOL PARTICIPANT (if you refer to this comment, I`ll send to this person)
`God Help Us All!`
Since this stated purpose is not supported by empirical data and
statistics from both the United States Department of Justice, Bureau of Justice Statistics, and from the Ohio Department of Rehabilitation and Correction, the "rational basis" underlying the Sexual Predator Statute does not exist. It must therefore fail the "rational basis test" of constitutionality, and it therefore acts to create an "arbitrary and capricious class of persons" subjected to an infringement on their right to privacy, placed on public display for public ostracizing and ridicule, and subjected to reporting requirements to local police agencies and community notification laws, without a legitimate and compelling government interest, in violation of the Equal Protection Clause of the 14th Amendment, and the protections afforded by the substantive due
process clause of the 5th and 14th Amendments, that is, the right to be free from arbitrary and capricious government conduct infringing upon your right to liberty, association and happiness.
The low recidivism rate of sex offenders is the best kept secret in
today’s society. The politicians are lying. The Courts are lying. In McKune v. Lile, 122 S.Ct. 2017, 2024 (2002), the United States Supreme Court cites to the DOJ’s 1997 report on Sex Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault, for the finding that sex offenders have a \"high risk of recidivism.\" Yet this report, cited above, finds the recidivism rate of released sex offenders for new crimes as 7.7%, and that rate is the second lowest rate of recidivism of all released offenders in the study. The context in which the study is cited gives the opposite inference in a manner that is misleading to the reader of the decision. It is a false rationalization of a bad decision.
Most dangerous of all is what these lies do to trials when a man who was once previously convicted of a sex offense faces actual false charges later in his life brought by someone who knows about his past convictions.
Judges, in performing the balancing test of "probative v. prejudicial` under Evidence Rule 403, wrongfully assume testimony of a previous sex offense conviction has a "high" probative value, and allow the evidence to be presented by the prosecution. The new Federal Rules of Evidence 412-415 were enacted based on a false presumption that past sex offenses have high "probative" value. And juries, God help us all, misinformed about the true facts and statistics through the media, prosecutorial "sound bite" press releases, and TV shows like \"America’s Most Wanted," "Law and Order: Special Victims Unit," and even the now-canceled "First Monday" (which stated the recidivism rate of sex offenders was 80% in its next to the last show), hear evidence a man committed a sex crime 10,15, 20, or 30 years ago, and quit even listening to the evidence presented at the trial. MY OPINION
The truth has become pliable commodity in this nation, distorted to fit political agendas, preying, for the sake of votes, on the most unpopular of all crimes, just as for years these same people have ranted about prisoners in general, and worked to take what few amenities allowed.
I guess the last to go was the presumption of innocence. It is not merely perfidious to outright falsify statistics to justify government intrusion into the privacy of citizens, it undermines the very foundation of the ideal of Equal Justice and Rule of Law upon which this nation, and the International Community of Nations is founded. Intellectual dishonesty abounds in both the Republican owned media and in the Courts of this nation, now controlled by the ultra-conservative appointees of Reagan,Bush and mini-Bush. The latter who placates the ultra-conservative wing of the Republican party by handing them control of the Federal Courts, assisted by Orrin Hatch and Trent Lott. In place of Equal Justice we have
the appearance of justice, carefully propagated in selected published
opinions overshadowed by those unpublished opinions hiding the injustices dominating the majority of the convictions deemed too sordid in nature to be entitled to an honest and careful review for error by those self-righteous demigods called Judges. Not all are bad. But too many are bad now. The pendulum has swung too far. |
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Residency Restrictions & Impact on S.O. Recidivism
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By Dr. Jill S. Levenson, posted by Jayson Coker <webmaster@sodefnd.org>
Posted on 12.06.2009
Link to this research entry: [015] |
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Refer in comments to Research Entry No. 015 and send to Jayson at webmaster@sodefnd.org.
-----------------------------------------
Sex offender residence restrictions
Residence Restrictions and their impact on sex offender
reintegration, rehabilitation, and recidivism
by Dr.Jill S. Levenson
Levenson, J. S. (2007). Residence restrictions and their impact on sex offender reintegration, rehabilitation, and recidivism. ATSA Forum, XVIII(2).
Sex offender registration and notification have led to increased public awareness
of sex offenders living among us. Fearing that predators living in residential communities might
cause harm to children and other vulnerable individuals, citizens and politicians have lobbied for
laws which prohibit convicted sex offenders from living near schools, parks, and other places
frequented by children. The purpose of these laws is purportedly to decrease opportunities for
sex offenders to have contact with children, ultimately reducing the risk of child sexual abuse.
This paper will review the history of residence restrictions policies, their effectiveness, and their
observed and potential unintended consequences.
Background
The first statewide residence restriction policy was passed in Florida in 1995, and
prevents sex offenders on probation from living within 1,000 feet of a school, park, playground,
daycare center, or other place where children congregate. By 2004, 14 states had similar laws.
In 2005, following the tragic murder of Jessica Lunsford by a convicted sex offender in Florida,
residence restrictions gained enormous popularity as politicians and their constituents grappled
with the seemingly growing problem of recidivistic sexual violence. After the 2006 legislative
session, 22 states had passed or modified sex offender residence requirements (National
Conference of State Legislatures, 2006; Nieto & Jung, 2006).
Hundreds of cities, towns, and counties across the nation have also passed municipal
sex offender zoning ordinances. Local housing laws were inspired by zoning regulations
prohibiting adult establishments (e.g. strip clubs, adult bookstores) from operating within a
certain distance from schools. The first sex offender ordinance was passed in Miami Beach,
Florida in June 2005, and other cities soon followed. Local laws tend to create a “domino effect”
whereby neighboring towns quickly pass similar or even more restrictive legislation in an effort
to prevent exiled sex offenders from migrating to their communities.
Most residence laws create buffer zones of 1,000 to 2,500 feet around schools, parks,
playgrounds, and daycare centers. Some jurisdictions have added school bus stops to the list of
prohibited venues, and others have included libraries, places of worship, or recreational centers.
Some cities have made it a crime for landlords to rent to registered sex offenders, and some
land developers boast about new “sex offender-free” communities.
Legal and constitutional issues
In 2002, Iowa enacted one of the most restrictive sex offender residence laws in the
nation, outlawing sex offenders from living within 2,000 feet of schools and daycare centers.
The law was challenged and declared unconstitutional ("Doe v. Miller and White," 2004).
However, this ruling was later overturned by the 8th Circuit Court of Appeals ("Doe v. Miller,"
2005), and was upheld as well by the Iowa Supreme Court ("State v. Seering," 2005). Most
courts have agreed that residence restrictions do not violate the constitutional rights of sex
offenders and that such laws are reasonable because states have a compelling interest in
protecting its citizens. In New Jersey, however, a Superior Court Judge in December 2006
declared a township’s local ordinance illegal because it conflicted with the state’s “Megan’s Law”
which precludes sex offender registration status from being used to deny housing or other
accommodations ("Elwell v. Lower Township," 2006). Injunctions have been issued in Georgia
and California, where recently enacted state laws intended to apply to all registered sex
offenders, even those who established residency before the laws were passed. The Georgia law
is still pending, but in California a judge recently ruled that Proposition 83 would only apply to
newly convicted sex offenders.
Effectiveness
Since residence restrictions are a relatively recent phenomenon, no research has
evaluated their impact on sex offense recidivism. Some related research questions have been
investigated. Arkansas researchers found that child molesters were significantly more likely than
rapists to live within close proximity to a school (Walker, Golden, & VanHouten, 2001). The
Arkansas study did not track recidivism, however, and though the authors speculated that child
molesters might be motivated to live within easy access to potential victims, the factors
contributing to sex offenders’ housing choices were not investigated. Other scholars believe that
economic factors, not proximity to potential victims, are what appear to most strongly influence
sex offenders’ selection of housing (Tewksbury & Mustaine, 2006). There is some evidence that
rapists who target adult victims tend to commit sex crimes within close proximity to their homes
(Warren, Reboussin, Hazelwood, Cummings, Gibbs, & Trumbetta, 1998).
Thus far, there is no empirically established link between where convicted sex offenders
live and whether or not they reoffend. The states of Colorado and Minnesota elected to study
this issue prior to enacting zoning laws. In Colorado it was found that recidivists were randomly
located and were not more likely to live near schools than those who did not reoffend (Colorado
Department of Public Safety, 2004). In Minnesota, cases of repeat sex offenders were carefully
studied; none of the reoffenses occurred on the grounds of a school. Two offenses occurred
near parks, but the parks were located several miles from the offenders’ homes (Minnesota
Department of Corrections, 2003). Researchers in both states concluded that residence
restrictions laws were not a feasible strategy for preventing sex crimes, though probation
officers’ discretion in developing individualized restrictions on a case-by-case basis might be
appropriate.
Collateral Consequences
There have yet to be any empirical investigations examining the efficacy of residence
restrictions on reducing recidivism. There is, however, an emerging body of research that
identifies many unintended consequences of such laws. In a Florida survey involving 135 sex
offenders on probation in Tampa and Fort Lauderdale, it was found that about one quarter of the
participants reported having to relocate as a result of the state’s 1,000-foot buffer zone
(Levenson & Cotter, 2005). Nearly half said that they were unable to live with family members,
57% said that affordable housing was less accessible, and many reported an increase in
isolation and stress. Levenson and Cotter (2005) collected their data in 2004, prior to the
explosion of municipal ordinances throughout Florida in 2005. Since that time, for example, 23
of the 30 independent cities in Broward County, FL (the greater Fort Lauderdale metropolitan
area) have passed local sex offender zoning laws (Broward Sheriff's Office, 2006). A more
recent study of 109 sex offenders in Broward found that 39% reported becoming homeless or
living with someone else for two or more days, and 22% said they were forced to relocate two or
more times (Levenson, 2007). Almost half reported that a landlord refused to rent to them, and
13% said they had spent time in jail due to a residence violation.
In Indiana, more than a quarter of sex offenders surveyed were unable to return to their
homes after being released from prison, 37% could not live with family members, and almost
one-third reported that a landlord refused to rent to them or to renew a lease (Levenson & Hern,
2006). Many (38%) said that affordable housing was less available as a result of boundaries on
where they could live, and that they were forced to live farther away from employment, social
services, and mental health treatment. Young adults were particularly affected, and age was
significantly inversely correlated with being unable to live with family and having difficulties
securing affordable housing (Levenson & Hern, 2006).
Geographical information system (GIS) mapping research confirms that residence
restrictions greatly diminish housing availability. In Orange County, Florida (Orlando)
researchers found that of the properties zoned for residential use, 64% are located within 2,500
feet of schools (Zandbergen & Hart, 2006). Mapping the locations of dwellings located within
2,500 feet of multiple types of restrictions (schools, parks, daycare centers, and bus stops)
revealed the virtual absence of housing; only 37 residential properties existed outside of 2,500-
feet buffer zones. Bus stops were found by far to be the most problematic type of restriction
(93% of residences fell within 1,000 feet of a bus stop and 99.6% were within 2,500 feet). It is
probable that the results documented by Zandbergen and Hart (2006) would be similar in
comparable metropolises.
Within six months of the implementation of Iowa’s 2,000-foot law, thousands of sex
offenders became homeless or transient, making them more difficult to track and monitor. The
number of registered sex offenders in Iowa who could not be located more than doubled,
damaging the reliability and validity of the sex offender registry (Rood, 2006). Iowa prosecutors
and victim advocates have publicly denounced residence restrictions, asserting that they create
more problems than they solve (Iowa County Attorneys Association, 2006; NAESV, 2006).
Prosecutors observed that the number of plea bargains dropped, causing some cases to go
unadjudicated, leaving victims at risk and perpetrators without treatment or punishment (Iowa
County Attorneys Association, 2006).
Some states are beginning to consider alternatives to residence restrictions. Notably,
Iowa legislators are considering replacing the state’s 2,000 housing law with “child safety zones”
or “loitering zones.” Likewise, in Kansas and in Tampa, Florida, lawmakers recently decided
against establishing residence laws in favor of child safety zones. Rather than restricting where
sex offenders reside, such initiatives prohibit them from hanging around in places where they
can easily cultivate relationships with children and engage in grooming tactics. In some cases
these loitering laws are supplemented with GPS monitoring systems which alert officials when a
sex offender ventures into a forbidden area without legitimate reason. These types of laws seem
better equipped to manage the daily activities of sex offenders at risk for abusing children than
housing laws which dictate primarily where sex offenders sleep.
Implications for policy and practice
Because residence restrictions are designed to prevent recidivistic predatory offenses,
they target only a fraction of sex crimes. The assumption that children are at great risk posed by
sex offenders lurking in schoolyards or playgrounds is misleading and can create a false sense
of security for parents. Most sexually abused children are victimized by someone they know and
trust, and only about 7% of sex crimes against minors appear to be perpetrated by strangers
(Bureau of Justice Statistics, 2002). About 40% of sexual assaults take place in a victim’s own
home, and 20% take place in the home of a friend, neighbor or relative (Bureau of Justice
Statistics, 1997). Most child sexual abuse is perpetrated by family members or close
acquaintances. Since the majority of sex offenders do not go on to be rearrested for new sex
crimes (Bureau of Justice Statistics, 2003; Hanson & Bussiere, 1998; Hanson & Morton-
Bourgon, 2005; Harris & Hanson, 2004), assessing risk and applying restrictive policies to those
offenders most likely to pose a threat to children would be more efficient.
Residence restrictions disrupt stability and create obstacles to successful community
reintegration. They tend to isolate offenders by pushing them into either rural areas or socially
disorganized, economically deprived neighborhoods with fewer resources by which to facilitate
crime-prevention strategies (Mustaine, Tewksbury, & Stengel, 2006; Tewksbury & Mustaine,
2006; Zevitz, 2004;2006). They tend to isolate sex offenders from their supportive and
dependent family members, move them farther away from employment opportunities and public
transportation, and create financial hardship and psychosocial stress (Levenson & Cotter, 2005;
Levenson & Hern, 2006; Levenson, 2007). Young adult sex offenders are most at risk for
housing instability (Levenson & Hern, 2006). These conditions are likely to exacerbate dynamic
risk factors associated with reoffense, such as lifestyle instability, negative moods, and lack of
social support (Hanson & Harris, 1998;2001).
Public policies that interfere with community re-entry are unlikely to be in the public’s
best interest. Research indicates that sex offenders with positive support systems are less likely
to reoffend and violate probation than those who have negative or no support (Colorado
Department of Public Safety, 2004). Stable employment and relationships with family and
significant others are factors associated with lower recidivism rates among sex offenders
(Kruttschnitt, Uggen, & Shelton, 2000). Social stigma and restrictive policies can preclude
engagement in various prosocial roles and activities, including employment, education,
parenting, and property ownership (Uggen, Manza, & Behrens, 2004). Employment and housing
are essential in facilitating a smooth transition for sex offenders returning to the community after
incarceration (Zevitz & Farkas, 2000). Uggen et al. (2004) emphasized that self-concept, civic
participation, and social resources are related to criminal offenders’ desistance from crime by
virtue of their perceived identities as conforming and invested citizens.
Residence restrictions and their consequences are likely to challenge the coping skills of
many sex offenders when they face transience, instability, and losses as a result of such laws.
Treatment providers should be aware of the stress created by housing problems and related
issues and be prepared to assist offenders with coping strategies as well as referrals for
concrete services. Attention to dynamic risk factors, which fluctuate according to environmental
conditions, should be an integral part of ongoing assessment and treatment planning.
Politicians and citizens are unlikely to be sympathetic to the challenges these restrictions
create for sex offenders, and rightly so. Some sex offenders do indeed pose a serious threat to
communities, and neighborhood residents have a legitimate and valid interest in protecting
children from sexual violence. From a public safety standpoint, however, it is more efficient
to establish policies that do not inadvertently contribute, even indirectly, to the risk for
reoffense. Professionals and policymakers alike are encouraged to consider a range of
available options for creating safer communities and to endorse those that are most likely to
achieve their stated goals while minimizing collateral consequences.
You can make a difference!
Research shows that the public and lawmakers are often misinformed about sex
offenders, citing myths of alarmingly high recidivism rates, stranger danger, and the futility of
treatment (Levenson, Brannon, Fortney, & Baker, 2007; Sample & Kadleck, 2006). ATSA
members are encouraged to advocate for evidence based community protection policies that
are more likely to achieve their intended goals of enhancing public safety. Members can
educate the public via the media by providing factual information to journalists regarding sex
offender risk and recidivism. As well, members can contact lawmakers, testify at public
hearings, write letters to the editors of newspapers, and provide information packets to
stakeholders. Such efforts can be effective in shaping social policy. You can make a difference!
For instance, after hearing a full day of testimony from researchers, law enforcement agents,
and victim advocates (none of whom were in favor of residence restrictions), Kansas legislators
recently decided not to enact statewide residence restrictions laws and in fact issued a
moratorium on the passage of local zoning ordinances.
Risk assessment using empirically derived tools should be recommended to classify
offenders into relative risk categories with concordant restrictions and interventions. Treatment
should be encouraged as part of any comprehensive strategy for preventing repeat sexual
violence. Collaborative approaches such as containment models, in which treatment providers,
supervising officers, and polygraph examiners work together to manage the risk of registered
sex offenders, should be emphasized as a paradigm for community protection. And always
remind your audience that we are all on the same side, with the common goal of preventing
sexual violence and creating safer communities.
References
Broward Sheriff's Office. (2006). Residency statutes for area municipalities. Retrieved 12/9/06,
from www.sheriff.org
Bureau of Justice Statistics. (1997). Sex offenses and offenders: An analysis of Data on rape and
sexual assault. (No. NCJ-163392). Washington, D.C.: U.S. Department of Justice.
Bureau of Justice Statistics. (2002). Criminal Victimization. Retrieved 11/16/02, from
http://www.ojp.usdoj.gov/bjs/cvictgen.htm
Bureau of Justice Statistics. (2003). Recidivism of sex offenders released from prison in 1994.
Washington, D.C.: U.S. Department of Justice.
Colorado Department of Public Safety. (2004). Report on safety issues raised by living
arrangements for and location of sex offenders in the community. Denver, CO: Sex Offender
Management Board.
Doe v. Miller, 405 F. 3d 700 (8th Circuit 2005).
Doe v. Miller and White (U.S. District Court, Southern District of Iowa 2004).
Elwell v. Lower Township (Superior Court of New Jersey 2006).
Hanson, R. K., & Bussiere, M. T. (1998). Predicting relapse: A meta-analysis of sexual offender
recidivism studies. Journal of Consulting and Clinical Psychology, 66, 348-362.
Hanson, R. K., & Harris, A. J. R. (1998). Dynamic predictors of sexual recidivism. Ottawa,
Canada: Department of the Solicitor General of Canada.
Hanson, R. K., & Harris, A. J. R. (2001). A structured approach to evaluating change among
sexual offenders. Sexual Abuse: A Journal of Research & Treatment, 13(2), 105-122.
Hanson, R. K., & Morton-Bourgon, K. (2005). The characteristics of persistent sexual offenders:
A meta-analysis of recidivism studies. Journal of Consulting and Clinical Psychology, 73(6),
1154-1163.
Harris, A. J. R., & Hanson, R. K. (2004). Sex offender recidivism: A simple question (No. 2004-
03). Ottawa: Public Safety and Emergency Preparedness Canada.
Iowa County Attorneys Association. (2006). Statement on sex offender residency restrictions in
Iowa. Des Moines: Author.
Kruttschnitt, C., Uggen, C., & Shelton, K. (2000). Predictors of desistance among sex offenders:
The interaction of formal and informal social controls. Justice Quarterly, 17(1), 61-88. |
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Political Misuse of `Pedophile`
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By James Hunter, MSW <jedson@runbox.com>
Posted on 11.06.2009
Link to this research entry: [014] |
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Note - This is only the abstract and introduction to a much, much longer article, which you can read in the Journal of Homosexuality (see reference below). It is a very useful introduction to the demonization of a scientific term. Alex. In sending comments, refer to research entry No. 014, and send to me, alexm60@fastmail.fm, as well as to Dr. Hunter.
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The Political Use and Abuse of the “Pedophile”
James Hunter, MSW
Retired Clinical Social Worker
ABSTRACT. The cognitive/affective construct designated by the term
“pedophile” is delineated on the basis of how he is presented in the popular media. His salient characteristics are listed and then examined in the light of scientific and historical data. The “pedophile” is discovered to be a “social construct that floats in the thin air of fantasy.” Since the truth-value of the construct “pedophile” approaches zero, we are confronted with the question of why he continues to be such a central and emotionally fraught aspect of American culture. The answer to this question is found in his political usefulness. Specifically, the religious right uses him to further its agenda of sexual repression, and the political right uses him to dismantle the machinery of a free society.
KEYWORDS. Pedophile, pedophilia, sex abuse, child abuse, child
molester, scapegoating, moral panic, stereotype, sexual repression, civil rights, self-incrimination, indefinite sentence
Journal of Homosexuality, Vol. 55(3) 2008
Available online at http://www.haworthpress.com
© 2008 by The Haworth Press. All rights reserved.
350 doi:10.1080/00918360802345073
James Hunter, is a retired clinical social worker.
Address correspondence to: James Hunter, MSW, 5E. Broadway, Lincoln, ME 04457 (E-mail: jedson@runbox.com).
INTRODUCTION
Almost any day you read the newspaper you are likely to find another
account of an “alleged” sex offender who has been indicted for “unlawful sexual contact” and/or “sexual assault.” One finds a certain sameness in these reports. The alleged “perpetrator” is a “pedophile” who has “assaulted” a child “victim” and has thus damaged him or her for life. The alleged perpetrator could receive up to so many years imprison- ment if he is found guilty—which, of course, one assumes he will. The word “alleged” is there as a courtesy and for the legal protection of the newspaper. In editorial statements and in “specials” on the subject, such perpetrators are frequently described as “monsters,” “sex fiends,” or “beasts.” This categorization of the pedophile is clearly both implied and assumed even when it is not explicitly spelled out. Often one finds the pedophile mentioned in a list that includes serial killers and rapists.
I have some newspaper clippings of one of the more recent accounts of
an alleged “child abuser” being indicted in my area. According to a local newspaper, he was a choir director who was “an accomplished pianist, composer and director who has worked with children and adults in the area since 1991” (Buyers-Basso, 2006). One presumes that he was considered to be a decent human being during his 15 years in this community— perhaps even a rather caring and sensitive person. One parent in the area is quoted as saying “I always thought he treated the children with great dignity and respect” (Buyers-Basso, 2006). But that previous identity is utterly destroyed by the newspaper articles. All at once, this is a monster, a pervert who has committed a heinous crime. He is accused of unlawful sexual contact with an 11-year-old boy, and the newspaper has “reason to believe” that a charge of “sexual assault” will be forthcoming.
How can a decent human being become a monster so quickly? The
dominant narrative would be that he was a monster from the beginning—
as dangerous as any serial killer. It would portray him as cynically using his position of trust in the community solely as an opportunity to “groom” his future “victims.” Can we accept this as a fair assessment of who this choir director is? Or are there other narratives that might portray this person and the events for which he is being indicted with greater accuracy? Who is this “pedophile” that has so prominently haunted the imagination of the American people for several decades now?
In her study “The Social Construction of the Child Sex Offender
Explored by Narrative,” Helen Gavin (2005) starts from the perception that “narrative functions to construct social reality and that the vocabulary we use imparts its own values” (p. 395) She observes that we frequently find competing narratives—alternative narrative templates if you will— that could be superimposed over the same set of facts, and she states that “the prevalence of one over the other is not due to any correspondence to reality, but to its pragmatic nature. . . .The view that takes precedence, for those involved is the one that has the most utility at the time” (p. 395). She suggests to us, in other words, that in many cases the predominance of a given social construct is not due to its truth value but to its political usefulness.
Although I would not, of course, hold Gavin responsible for the
specific conclusions I arrive at in this article, I will use some of her basic insights as a starting point. I will examine the social construct “pedophile” in terms of its truth value and then in terms of its political usefulness. I will argue that, as an interpretive construct, it is almost totally devoid of truth value, but that it serves political aims that are primarily, but not exclusively, the agenda of the political and religious
right.
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Dr. Richard Wright Interviews Patty Wetterling
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By posted by Lynne <tischler@austin.rr.com>
Posted on 14.04.2009
Link to this research entry: [013] |
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Comments should refer to Research Entry No. 013 and be sent to the person and email above, with a copy to alexm60@fastmail.fm.
Note - The formatting is not good, but the article is so long it would be impossible to re-format. See the review in Research Item 012 of Wright´s book for information on how to get the book.
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The following is an interview of Patty Wetterling by Richard Wright from the book entitled "Sex Offender Laws: Failed Policies, New Directions," which I recommend everyone purchase and read.(Note by Lynne Tischler)
>
Richard Wright: Let's start where we are today and work backwards. Obviously you know we are operating under the Adam Walsh Act, which is the major rewrite of sex offender federal laws from a few years ago. What are your general thoughts about the Adam Walsh Act?
>
> Patty Wetterling: Well, I had great concerns about some it what they were trying to do when they proposed the bill. I kept raising questions about treating juveniles the same way we treat adults. It makes no sense at all, and that was one provision that I had concerns over. I was told not to worry about the juvenile provisions because that would get thrown out. I was told there was no way that would pass. Also, when we worked on the Jacob Wetterling Act, we were told that we couldn't make it retroactive, and yet the Adam Walsh Act has done that. One of the other clear pieces that I had concerns over was the amount of money that we are spending on GPS monitoring.
>
> This law applies to a very, very tiny percentage of our general population. There are many pieces to it that are very costly and don't necessarily work. I worked with a family where the offender was on house arrest and he convinced his girlfriend to go over to his house. While he was on house arrest with a bracelet, he murdered her and took off. These laws don't necessarily stop crimes from happening, and they cost a ton of money Those are two issues I have great concerns over. Additionally The AWA allocates zero dollars for prevention.
>
> Wright: And the specific juvenile provision you are talking about is the fact that under the new law if a juvenile gets adjudicated after the age of 14 for a sex offense, he or she has to register like an adult offender.
>
> Wetterling: Yes, and there's a tremendous amount of research that finds that children's brains aren't developed until their mid-20s, and so they are incapable of making some of those decisions. They don't know or don't think about long-term consequences of their behaviors. There are also Romeo and Juliet cases where these kids are having a relationship that may not be violent. Yet even in those instances where it is not violent, they are still treated exactly the same as a violent adult offender. I think that's the biggest challenge that I have with sex offender laws. They tend to treat all sex offenders the same, and they're not the same.
>
> Wright: One of the ways the laws have changed in the last decade or so is that we no longer focus primarily on registration and notification. We have civil commitment, chemical castration laws, residency restrictions, mandatory HIV testing, and, as you've mentioned, GPS monitoring. Which do you think are the most helpful or harmful of these laws?
>
> Wetterling: I still think that sex offender registration can be a helpful tool for law enforcement. When my son was kidnapped they didn't have a clue who was in the area. It can absolutely work. It doesn't have to work against sex offenders; it can clear them very quickly. Community notification, the way we do it in Minnesota, I think is respectful because they not only notify the community about the offender, but they also educate people about dangerous behaviors. For example, anybody who is maybe giving your child too much attention or giving them presents, gifts, money trying to spend a lot of time with them. That's preventive information that can stop a bad relationship or a bad situation from happening. Then, law enforcement briefly spends about 5 minutes talking about the one guy who is coming out. It deemphasizes the absolute anger and energy that's usually thrown at one person, when most people victimize somebody who is very close to them,
> somebody in their family or a neighbor, somebody who has their trust.
>
> Wright: If I understand you correctly you still think that registration can be pretty helpful and that when notification is done well, it can be helpful. What do you think about all these issues around residency restrictions and chemical castration and all these other types of laws?
>
> Wetterling: Let's take these one at a time. But first of all, I don't believe in registering juveniles. I don't see any, not one redeeming quality in doing that. The goal is to interrupt the behaviors if they've done something wrong, get them some help so they can live a normal, healthy wonderful life. Registering juveniles takes away everything that would allow them a normal, healthy happy life. It takes away any stability and sense of support. Registering juveniles is ludicrous and wrong always.
>
> Residency restrictions are also wrong and ludicrous and make no sense at all. We're putting all of our energy on the stranger, the bad guy and the reality is it's most sex offenses are committed by somebody that gains your trust, or is a friend or relative, and so none of these laws address the real, sacred thing that nobody wants to talk about.
>
> Wright: Let me ask you about a recent development. There are about six states right now that have enacted laws that would authorize the execution of individuals convicted for child rape. Recently in the case of Kennedy v. Louisiana, the Supreme Court came out in a 5-4 vote saying that the Louisiana law was unconstitutional. It upheld its previous decision in Coker v. Georgia, which said that the death penalty for rape was a disproportionate and unconstitutional punishment. Since the ruling, there's been quite a bit of backlash, particularly by the states with those statutes. How do you feel about executing sex offenders?
>
> Wetterling: First of all, I don't believe in the death penalty. But if you made it possible to use the death penalty for a child rape situation, the perpetrator might as well kill the child because there's the same consequence, and if offenders are cognizant of those kinds of consequences, then they have no motivation to keep the child alive.
>
> Wright: So your argument is that if the offender realizes that they may get executed by this rape, then they're just going to go ahead and commit the murder.
>
> Wetterling: Right, because they could possibly get away with it. If the child lives, he or she might tell. Here's the question that I always want to ask, when we pass these laws. Will this make our communities safer? Will this make our children safer? No. Executing child rapists may stop one rapist, one time, but it's not a discouraging factor. These guys don't think they're going to get caught in the first place, so it doesn't discourage the behavior. It would take one guy off the street, but we're putting all of our energy into the smallest piece of the puzzle.
>
> Wright: I want to ask you a couple questions now about your specific journey because there are so many things that compelling about the decisions that you've made and you responded to Jacob's disappearance. How have your views about sexual offending and sexual assault changed over the years from the time that Jacob first disappeared to now? How have your own thought process and feelings about sexual assault and sexual offending changed?
>
> Wetterling: Oh gosh, I think so much has changed over the years. We live in a small town, and we were absolutely shocked and horrified with Jacob's abduction. We should be always shocked and horrified, every time it happens. What concerns me now, and what I think has grown progressively worse, is that we are no longer shocked and horrified over the sexualization of our children.
>
> The video games, for example, Grand Theft Auto, you get points for picking up a prostitute, you get points for going back and killing her. We're grooming our children to be sexualized; you know the "pimp-ho" mind-set genre, glamorizing that kind of dominance and objectification of young girls. They sell pole dancing kits to young girls, so we are encouraging these behaviors. Then when our children do what we've taught them to do, and act the way we've taught them to act, the only answer we have is to arrest them, register them as a sex offender, and change their lives forever so they have no possibility of regaining themselves. It makes no sense.
>
> Wright: You've been dealing with this now for over 18 years. When you think back to what you thought about sexual offending and sex offenders 18 years ago and what you know now today, how do you think your views have changed?
>
> Wetterling: I ask a lot of questions. I've always asked a lot of questions. I feel that, when Jacob was kidnapped, I was angry, as you can imagine. I've been angry; I know fear and I know anger, and I don't like living my life like that. I believe that much of the legislation and much of the initiative in this country is to use fear and anger to keep people on guard. I honestly believe, and this is consistent, this is what I felt in 1989 and what I feel today, that there are more good people in the world than bad. We need to pull together and design a world that is safer and better. Just having this absolute anger and pointing our fingers at one or two people as the bad guys, we're denying the realities of sexual offending. We're denying it.
>
> I've learned a lot. I didn't know that most of the time sexual offenses are committed by someone that the child knows. I learned that by being investigated. Law enforcement always looks at the family, friends, and relatives. They always look very closely at the family. I understand that. It was painful, but I do understand that now. Knowing that, why are we always putting all this stuff under this "stranger danger" mind-set? That's not the solution to this problem.
>
> Wright: Let me expand on part of what you just said. From watching your response to these sex offender laws, one of the things that's been amazingly unique about your experience, it seems to me, is that you have never really been focused on vengeance or retaliation. Many of the policies and the public attitude toward sex offenders tends to be very much about demonization, revenge, and retribution. But as someone who has gone through it, you've had a very different response. You have not focused on vengeance and retaliation but on prevention and a positive outlook. Can you talk a little bit about your healing process? Why you are able to get past rage and anger, and not operate with a sense of vengeance?
>
> Wetterling: It was a process of gaining support. I gained a lot of support from law enforcement and a lot of support from the community. The more I learned about this issue, the more I was committed to change and to resolving and doing what I could to stop it. I couldn't hang on to that anger. It was destroying me inside. It was. I've seen people do that. They become very bitter. They can also be very effective at changing laws, but it's unhealthy. I couldn't do it. The other thing is that I have three other kids, and I didn't want them walking around distrusting everybody and afraid to talk to a new person just because that would be a stranger. Nothing made sense to me, and I still wrestle with it.
>
> I don't know the answer, I just know that we spend so much time telling our kids don't talk to strangers, and then we put them on a school bus with a new driver every fall. We send them off to summer camp with camp counselors. We're full of inconsistencies, and I think it is good we put them on a school bus and send them off to camp. I don't think we should teach them to fear strangers. I think we should instead be teaching them how to talk to people, how to have respectful relationships, how that interaction can work, because then they'll know when somebody has bad intentions, when they're treating them in a way that makes them uncomfortable. I don't know why I thought about it differently than other people. I know I do and it's hard.
>
> Wright: I want to expand on that a little bit. One of the things I do think is remarkable about your approach and your policies is that they have never really focused on demonizing offenders or blaming. I would like to understand why. How have you managed to not do that?
>
> Wetterling: I don't exactly know when it started, but it took a longtime. At first I didn't want to talk to offenders. I got asked to speak at victims' rights weeks or speak in the prisons, but I didn't want to have anything to do with it. I couldn't do it. But then I met a woman. She and her daughter were camping when an offender slit a hole in their tent and snatched her daughter, kidnapped and murdered her. This woman made an appeal. She said she wanted to talk to the offender.. She was a very Christian, very forgiving woman. The offender did call, and she spent a long time talking to him. She found the man and he was charged, convicted, and sentenced.
>
> I was amazed by that story. I couldn't do that. At that point in my journey, I was not that open and forgiving. Not that I wouldn't like to be, I just wasn't. It began a process for me. I decided I would write a letter to the man who took Jacob. The only way I could do that was to think of this man as once a child. As a child, something really bad must have happened to this man that he would then act out and do these things to other children.
>
> Registering and treating them as demons and animals, not even human, that doesn't do anything. It destroys the person. It would destroy me internally and it would not help solve the problem.. The problem is how do we treat our kids? If they are victims, we need to get them help right away so that they don't continue the behavior. We've got to build a culture that values and protects its kids.
>
> Wright: Now you are the program director for sexual violence prevention in the Minnesota health department. It sounds like you have been explaining this a little bit all along, but it sounds like this is a next phase in your own growth and your own journey. Why are you so focused on the prevention of sexual offending?
>
> Wetterling: Because of the sheer volume of sexuality involving our children. Twenty-five percent of our teenage girls have an STD or STI. That's a phenomenal public health problem. If we view sexual offending as a public health problem, we would look at it like we do other health issues. When people start getting really sick, the medical field doesn't say, we've got to build more hospitals and that will solve it. They do lot of research in trying to figure out what is causing people to become sick. But with sex offenses, all we can think of is to build more prisons. It doesn't solve the problem, so what we have to do is look at it. What are the contributing factors to somebody becoming a perpetrator? Some of the juvenile offenders that they're arresting are not sadistic killers. They're not the same as the man who took Jacob. They're kids. They are acting out in a sexualized culture, doing the things we've taught them to do. We need to better define the
> problem. We need to look at what works and then we need to get that out to the general population. Many sex offender laws really don't work. They don't solve a thing.
>
> Wright: You have had access to hundreds of legislators who've passed these laws. Some of these laws have been fairly thoughtful and some have been fairly reactive. Having dealt with so many legislators, how would you characterize their understanding of the problem?
>
> Wetterling: Overall I would say they have very little understanding of the problem. That's why I ran for Congress. I don't think they want to. Nobody wants to look at the problem. You don't want your child to be a victim. I have said this a lot. In Minnesota, everybody wants to find Jacob and everybody wants to find the man who took him. We've been overwhelmed with just amazing, amazing support, but at the same time nobody wants to find the man who took Jacob... in their family. They don't want to find him in their church, in their school community, in their neighborhood. These people are not monsters. They're living and functioning amongst us, and we've got to figure out a way for them to live amongst us and not harm another. There are many things that need to be looked at, including the effect of pornography. We have a "pornified" culture. It affects the way men view women and the way men view girls. The amount of violence with pornography has greatly
> grown. We're nurturing that, we are putting that in beer ads and that's everywhere. We are so used to it that we aren't even shocked anymore, and that's sad to me.
>
> Wright: I want talk about your Congressional campaigns in a minute, but I want to go back to this question about the legislator's role....
>
> Wetterling: First of all, they don't understand the problem. Second of all, they usually propose legislation after another really horrific crime. So they've got public sentiment and demand. People demanding that they do something. These are people who have to get reelected, and the goal is to look like they are the toughest on crime, that they've done the most to go after these bad boys. They name laws that are either compelling, compassionate, like after the child, or the PROTECT Act. The Adam Walsh Act is named after a child. There are so many named after children, Dru's Law, Jessica's Law. It gives the sense that this is compassionate and caring and that it will make the world safer. Often, it doesn't.
>
> Wright: So, when a legislator meets with the parents of the victim, and the victim wants a new law and he introduces a bill, what do you think his intent is?
>
> Wetterling: Well, first of all, I would venture to guess that maybe I'm different on this one, too, but when Jacob was abducted, I didn't want a law. It upset me. We had state legislators come to us right at the beginning and say, we want to do something, we're going to pass a law. I thought, why are you talking about laws? I'm looking for Jacob. I didn't want a law named after Jacob, I wanted my son.
>
> I didn't have the time or energy to put any thought into that. But over time I began looking, and I asked law enforcement, what would have helped you? They said it would have helped to know who was in the area. From a law enforcement perspective, that makes sense. It would have helped to have a central repository of information because we have a very fluid society. Those I think are two valid law enforcement tools, but when they expanded it to community notification, I wasn't even sure if I liked that. It made me very nervous about people not handling that information well.
>
> On an intellectual level, when these guys are released from prison, we want them to succeed. That's the goal. Then you have no more victims. All of these laws they've been passing make sure that they're not going to succeed. They don't have a place to live; they can't get work. Everybody knows of their horrible crime and they've been vilified. There is too much of a knee-jerk reaction to these horrible crimes.
>
> Wright: You ran for Congress twice and briefly for the Senate. Those campaigns were very close. If you had won those campaigns, how would you have changed federal sex offender laws? What would you have done?
>
> Wetterling: That's a really good question. I would have suggested a study on sex offender treatment. What works? There are a lot of programs out there, and I think that some of them in fact do work. The Good Lives Model is one I'm intrigued by. I think it's fascinating and if we could use the model across our general population with young kids, then possibly we could have fewer perpetrators. Let's invest in our youth, early investment in treatment for juveniles. People are also of the mind-set that treatment doesn't work, and I think it does. I think that many of the treatment programs, especially for young people, do work. I would have done that. I would have always asked the questions that nobody is asking, so that we could make sure that a particular piece of legislation was indeed going to do what we intend it to do.
>
> Wright: As you know, the media has a major impact on all of these stories. There are times when the media can report on sexual offending in a very thoughtful way, in a very deliberate way, and there are times when they can be very sensational. Can you think of examples from your experience where the media dealt very well with Jacob's disappearance or in some cases where they dealt very poorly with it?
>
> Wetterling: We had one TV station which did a series.. It was a 5-night series on the problem, the victims, the perpetrators, the hopes. Actually it might have had one part on solutions or treatments and the hope. They really took time to show the depth of it. It was really, really well done and very thoughtful. We did a lot of shows on the national level, too, that were hour-long programs, that I thought delved into the reality that we as families are facing and the challenges. My basic statement for years has been somebody knows who took Jacob, somebody did this and you know, somebody knows. They may have a piece of information that we still need. We have got to find the man who took Jacob. There is somebody out there who steals kids. He's got my son. Did he do it again? I don't know.
>
> I'm not soft on these guys, but I just know that they're not all the same. They're not all the same and we can't treat them as such. There was one time when a man was arrested in St. Paul. My mother called, we were all up at the lake, and she said, "There's a break in your case." I said, "I don't think so. I've talked to the sheriff's department. They know where we are and they haven't called." She said, "Well they've been promoting it all day on TV. There's a break in your case. Watch the news tonight." So we did.
>
> This man was arrested in St. Paul and they said that he had knowledge of Jacob's kidnapping. The media said that when the police did a search they found pornography. They found a digital camera. They found movies. They found clothing. They found a container which appeared to be a container with testicles. They said that the suspect had been involved in a search for Jacob done at Fort Snelling. I'm sitting there with kids and I'm like, "What the hell?" I was livid. I was livid, because, first of all, that our sheriffs didn't know about it. The sheriff didn't call because he didn't know about this media report.
>
> The St. Paul police officer didn't seal the search warrants. The reporter didn't verify their facts. The testicles were dog testicles. I was really worried about my other son. He wasn't with us; he was staying with a friend. I was so scared Trevor was going to watch and see that report, and what would Trevor think? I didn't sleep for days.
>
> It was absolutely glamorizing the horrible act that could have happened. We went through 6 months of anxiety because the man who had been arrested had a boy's jock strap. We went through 6 months of waiting for DNA. Today they act like you get DNA back in 10 minutes or in an hour. We waited 6 months, and that's still not uncommon.
>
> Wright: From your experience, what distinguishes the news media that do a responsible, sensitive, thorough job from the sensational?
>
> Wetterling: The wording. They tend to right away call someone a rapist, or a child molester. The wording that they use is very inflammatory. I'm not thinking of good examples right now, but I know you'll know them when you hear them. They often suggest it being a stranger. They only report the stranger cases. The sad reality is, they so overemphasize the stranger cases, it suggests that those are the only thing that's happening. There are stations that do a better job. Some really address sexual violence by talking to victims. They know that most cases aren't reported to police and that most of the time it's not a stranger.
>
> The ones that do, the strangers that do make those high-profile cases are often very bad. I think we have to work out some of the kinks of civil commitment, because there's got to be a way for some of these people to not get out. We've had cases where the offender told people they were going to reoffend. They told them who they were going to go after and how they were going to do it. Now these people are clearly not safe. I don't believe they should be out. So we have to have a place for discerning the differences between these people.. They are still human beings.
>
> Wright: One other question about your process and your journey. One of the things again that I think is so amazing about your journey is that you've gone through this tragedy, and one of the ways you've chosen to deal with it is by better understanding the issue. I mean it would be a very completely normal response for someone who has gone through this to say, I don't want to talk about this. I don't want to deal with this anymore; I can't deal with it anymore. But you've kind of gone the opposite way, in choosing to live a very public life, understanding sexual assault, understanding sexual offending. Why did you make that choice?
>
> Wetterling: I don't know. I think it was because that's who I am, and when Jacob was kidnapped, I made a very hard decision. It's not that I went through something. I still deal with this. I refuse to let the man who took Jacob take anything else. You can't take my marriage. You can't take my other children. You can't take my sense of goodness with the world. You can't take away the world that Jacob believed in. You can't have it. I've fought very hard to rebuild the world that I know it could be. The way the world can be when people care about one another and they reach out. When somebody does something wrong, you get them the help that they need so that they can turn their lives around. I just couldn't go to the very punitive way and stay there. It wasn't me.
>
> Wright: Let me ask you just a few final questions. So as a fellow parent, I have a 3 1/2 year-old daughter, if something like what happened to Jacob, what was done to Jacob, happened to my daughter, what advice would you give me?
>
> Wetterling: Never give up. I still hope that one day we'll find Jacob. We'll find out what happened, we'll find out where he is. I don't know that he's not alive. There is no proof to show that he's not alive. I wish that I would have told him that I would search forever. I didn't. I didn't know. I would just encourage parents to hang on, hold onto who you are and do what you can. What we really want, what we really want, all of us, even the really angry vindictive parents want is for it to never happen again.
>
> Parents are very vulnerable when legislators approach them. They tell them things like "if we had had this law, your child would be home safe." That's not true, so often that's not true. But the parents are hurting and they are very vulnerable. They feel like it will make my child's life have meaning to the rest of the world. Nobody will forget that there's a law. We are very vulnerable.
>
> Wright: You know you used the word that was exactly what I was searching for and I think it's a brilliant choice of words, is this question around vulnerability. How can we help people in the healing process? When you talk to families, or rape victims, sexual assault victims, the process is a lifelong healing process.
>
> Wetterling: Absolutely. If we as a community or as a state have a strategy for managing sex offenders, let's use the best practices. Let's educate our law enforcement to be better prepared and to have a plan to address these concerns in our community.
>
> Wright: Does your family have any lessons learned about healing or about the journey? What you would say to other families, should they have to go through this?
>
> Wetterling: One of my best friends described it as looking to the light. It can turn into a very dark place, and you have to find some vision of how it can be better, and how you see yourself going forward. You have to find something outside of the very dark experience. I tell parents that you will find the strength to find the sunshine again. There are steps. There are support groups. There are a lot of people that can help you along the way, but you have to know that it's there because at the time you don't see it, you don't feel it. All you know is the dark and the pain.
>
> Wright: Is there anything else that you can think of that you would want to say about assault laws and sexual assault policy?
>
> Wetterling: Yes. I think that one thing that is so sorely missing in all of this, with all of our anger and all of our tough laws, there is no safe place for these guys. There are a lot of people who succeed. They do these terrible offenses and they go to jail and do their time. Then they get out and never reoffend. There is no place to share their stories, because you can't say, well, yeah I was a sex offender once and then I got some help, and I got off alcohol and drugs and I'm cured. As a culture, we don't tolerate that. We have not built into the system any means for success, and I think that's really sad. If I were the parent, the second worst thing to having your child kidnapped, would be to be the parent of someone who did this. I just can't imagine if you are the parent of a juvenile who did something wrong and you get them some help. You want them to lead a healthy, full life, and we've not built that into the equation at all..
>
> Wright: I just want to thank you again, Patty. I have to say the more I talk to you, the more I learn about this from you, your perspective, and the more I watch you, I am just amazed at the journey you've taken. You have uncovered some insights into this from the perspective that I haven't seen too many people who have. I just want to thank you again for doing this and choosing to live a very public life.
>
> Wetterling: Well, it wasn't at first a choice, it became very public because I was begging the whole world to help us, and pretty soon they were. The side effect is the public side. I am pretty shy and quiet. If I lived my life the way I was, nobody would have ever heard of me, ever. But with that comes a responsibility and I'm trying to do the best I can with it.
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S.O. Laws: Failed Policies, New Directions
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By Dr. Richard Wright, posted by Lynn <tischler@austin.rr.com>
Posted on 31.03.2009
Link to this research entry: [012] |
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Please refer in comments to Research Item 012, and send to the email above, with copy to alexm60@fastmail.fm.
SEE VERY POSITIVE COMMENT AT THE END OF THIS ITEM.
---------------------------------------------------------------
Important new book, available from Amazon ($48, $44 used), by Dr. Richard Wright (Editor), SEX OFFENDER LAWS: FAILED POLICIES, NEW DIRECTIONS, Springer Publishing Company, New York City, 2009.
In this book, Wright critically analyzes existing policies, and assesses the most effective approaches in preventing sex offender recidivism. This provocative and timely book draws from the fields of criminal justice, law, forensic psychology, and social work to examine how current laws and policies are enacted and what to-date is known about their efficacy. In response to the failed policies of sex offender laws, this book presents alternative models and approaches to sex offense laws and policies. Wright also explores critical, cutting-edge topics, such as internet sexual solicitation, the death penalty, and community responses to sex offense.
Key Features:
· An introduction and overview of the history of sex offender laws
· Analyzes the role of the media in sex offense and sex offender policies
· Examines the political "untouchability" of sex offender laws and their adverse effects
· Features interviews with victims of sexual assault, investigating their points of views on what kinds of reforms need to be made to sex offender laws
Thought-provoking and insightful, Sex Offender Laws serves as a vital resource for policy makers, researchers, and students of criminal justice, law, and social work.
--------------------------
COMMENTS
I just got this book from the library. I sat up reading until late in the night. It is well written, has loads of information it's a must have book for all of us engaged in this fight. I plan on purchasing this book and highlighting and notating the margins. anyway if you are wondering if it's worth the price I say YES!
I am already at page 343! On a few points, like the chapter on chemical and surgical castration, I do not agree with but everything else I am learning so much. A lot I felt or thought already, but it's exciting to have the facts and history behind it. I am planning on purchasing this volumn in the near future, there's way to much info to refer back to not to own it. I love the internet but there's something about holding onto a book and reading it that makes the information so much more real.
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Perpetual Panic
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By sent by Terrence <tjwhite1963@gmail.com>
Posted on 11.03.2009
Link to this research entry: [011] |
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Comments should refer to Research Entry No. 011, Perpetual Panic, and be sent to the above email address, with a copy to alexm60@fastmail.fm
from the FEDERAL SENTENCING REPORTER • VO L . 2 1 , NO. 2 • DECEMBER 2008 69
E D I T O R ’ S O B S E R V A T I O N S
Federal Sentencing Reporter, Vol. 21, No. 2, pp. 69–77, ISSN 1053-9867 electronic ISSN 1533-8363
©2009 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy
or reproduce article content through the University of California Press’s Rights and Permissions website,
http://www.ucpressjournals.com/reprintInfo.asp. DOI: 10.1525/fsr.2008.21.2.69.
Perpetual Panic
MICHAEL M. O’HEAR
Associate Dean for Research & Professor of Law, Marquette University Law School
Editor, Federal Sentencing Reporter
In his 1998 book Moral Panic: Changing Concepts of the Child Molester in Modern America, historian Philip Jenkins described three distinct twentieth-century panics over child sex abuse. In Jenkins’
view, what marks a “panic” is not only widespread public fear, but “fear that is wildly exaggerated and wrongly directed.”1
During a panic, “concern over sexual abuse provides a basis for extravagant claims making by professionals, the media, and assorted interest groups, who argue that the problem is quantitatively and qualitatively far more severe than anyone could reasonably suppose.”2
Fearmongering, in turn, produces excessive and ill-considered legislative responses, with lawmakers adopting new policies that “may cause harm in areas having nothing to do with the original problem and that divert resources away from measures which might genuinely assist in protecting children.”3
Whatever the strength of their furor, however, the American sex crime panics have always been temporary. Thus, Jenkins observed a series of thirty-five-year cycles across the twentieth century. Legislative efforts to control or punish sex offenders peaked in roughly 1915, 1950, and 1985, with public interest in the issue declining markedly in the 1920s and 1960s.4 Through the first eight decades of the century, panics came and went in a predictable pattern.
But then something new happened: the 1990s did not bring a period of relative indifference to sex crimes, as was seen in the wake of earlier peaks of interest, but rather a continued spirit of public alarm, which was exemplified by a proliferation of new civil commitment statutes for so-called sexually violent predators.5
In retrospect, it seems that we did not hit a true peak in 1985, but a plateau. “The cycle has been broken,” Jenkins concluded in 1998, and “the sexual threat to children will likely remain a central social issue.”6
Nothing in the decade since Jenkins’ book first appeared would undermine that conclusion. Truly, we seem to be in a state of perpetual panic, with an endless supply of new laws intended to control or punish sex offenders in new and harsher ways. Within just the past few months, for instance, Congress has enacted the Keeping the Internet Devoid of Sexual Predators Act,7 which expands sex
offender registration and notification requirements, while Missouri adopted a controversial new law that requires sex offenders to “[a]void all Halloween-related contact with children.”8
These statutes follow in the wake of another recent election-year enactment, the 2006 Adam Walsh Child Protection and Safety Act, which adopted new mandatory minimum sentences and restructured many
existing federal laws relating to sex offenders.9
Meanwhile, law-enforcement agencies have devoted increasing resources to Internet sting operations intended to catch adults seeking underage sex partners, resulting in several high-profile prosecutions,10 while possession of child pornography also
remains a matter of great law-enforcement interest.11
The present issue of FSR documents and critiques some of the most important recent developments in these ongoing efforts to identify, manage, and appropriately punish sex offenders. Although such efforts are by no means limited to pedophiles, they nonetheless seem largely responsive to fears regarding the sexual exploitation and victimization of children. Thus, the account of recent developments that unfolds in these pages may be viewed as yet another chapter in the story of a child sex abuse panic that is now well into its third decade.
In Part I of these Editor’s Observations, I identify some of the key themes that emerge from the articles in this issue. In Part II, I suggest some reasons why the sex crime panic has proven so durable, while another panic that also reached a fever pitch in the mid-1980s, the crack cocaine panic, seems to have subsided. Finally, in Part III, I discuss a lesson that may be drawn from the various
American crime panics: while it may be unreasonable to expect legislators to resist the pressure for increasingly punitive responses to problems that arouse widespread public alarm, the harmful effects of excessive or misdirected responses may be contained through the use of sunset provisions when new crimes or mandatory minimum sentences are created. The crack experience demonstrates how slow-moving the political system can be when affirmative enactments are required to undo bad policies, even after a panic subsides. If the burden is reversed, however—if it requires an affirmative act to retain the bad policy—then the legal legacy of panics may prove less durable.
I. A Critical Assessment of Recent Developments
Our authors focus on recent developments in five areas: sex offender registration under the Adam Walsh Act, coerced treatment of sex offenders, civil commitment for sexually violent predators, child
pornography sentencing, and capital punishment for sexual assault of a child.
A. Sex Offender Registration under the Adam Walsh Act
Richard Wright offers a detailed description and critique of the Walsh Act, focusing particularly on the sex offender registration and notification provisions of the new law.12 While sex offender registration was nothing new in 2006, the Walsh Act established a more uniform framework for states to follow, with a potential loss of federal grant aid for states that do not comply by 2009. Among other things, the new framework extends the reach of registration requirements by including juvenile offenders.13 As Wright points out, registration and the accompanying stigma may undermine efforts
to rehabilitate such juveniles,14 which is normally the overriding objective with young offenders. Wright also observes that the new federal system for classifying registrants is less sophisticated than
the risk classification schemes previously adopted by some states,15 which seems a nice illustration of his claim that “reason and research are secondary factors in the passage of sex offender laws.”16 More generally, he suggests, the whole emphasis of the Walsh Act on registration and notification seems hard to justify in light of the paucity of research that demonstrates clear crime-reduction benefits.17
Joseph Lester echoes Wright’s criticisms of the Walsh Act, but less from the standpoint of whether expanded sex offender registration is cost-benefit justified than whether the new requirements
are fair to offenders.18 Analogizing registration to the “mark of Cain,” Lester argues that we should recognize this form of branding as a punishment in its own right, and not merely as a prospective public-safety measure.19 From this recognition would flow the full panoply of criminal procedure protections that attend punishment in our constitutional system, in lieu of the Walsh Act’s automatic, indiscriminate imposition of registration duties based on criminal record.20 Lester thus envisions a world in which juries would decide whether an offender is sufficiently dangerous to warrant
registration, prosecutors would exercise discretion over whether to present the question to the jury, and judges would advise defendants at guilty plea hearings of the registration implications of a
particular conviction.21 Lester’s analysis indicates that recent sex offender legislation is at odds not only with research-based approaches but also with core constitutional process values.
Corey Rayburn Yung also identifies tensions between the Walsh Act and traditional constitutional values but focuses more narrowly on the statute’s new federal criminal penalties for failing to register.
22 Drawing on the Supreme Court’s recent Commerce Clause jurisprudence, Yung finds no constitutional basis for Congress’s authority to create the new crime.23
Finally, Michael Petrunik, Lisa Murphy, and J. Paul Federoff observe many notable differences between the Walsh Act and Canada’s sex offender registration law, which was adopted in 2004.24
For instance, Canada’s registry is prospective only (i.e., it includes only offenders convicted after the law came into effect) and is not automatic (i.e., the government must affirmatively seek registration, and the offender has an opportunity to present evidence showing why registration is not warranted).25 The Canadian system thus resembles what Lester has called for in this country and demonstrates that sex offender registration can be implemented with considerably more care and restraint than has been done under the Walsh Act.
B. Coerced Treatment
Registration requirements reflect a common view that sex offenders have dangerously disordered personalities that render them less susceptible to the normal deterrent effects of criminal law. Apparently, we must keep a much closer eye on sex offenders than murderers, burglars, drug dealers, or any other type of offender. But the perception of a close association between sex offenses and mental illness suggests an alternative response: treatment. Thus, mandatory treatment has become a pervasive feature of legislative and judicial responses to sex crime. Seventeen states already require
treatment by law, while, in others, treatment may be ordered on a case-by-case basis by sentencing judges or corrections officials.26
In their contribution to this issue, Mary Ann Farkas and Gale Miller explore the tensions between criminal justice mandates and the professional norms of therapists, which may undermine the efficacy
of coerced treatment.27 For instance, the requirement that therapists report new incidents of abuse that come to light during treatment diminishes the confidentiality of the therapeutic relationship and may impair the development of trust between therapist and client.28 One wonders, too, to what extent treatment and registration requirements are working at cross-purposes: registration and related restrictions make it difficult for sex offenders to obtain suitable housing and employment, which may greatly diminish the likelihood of successful rehabilitation.29
C. Civil Commitment of Sexually Violent Predators
In addition to registration and treatment requirements, the perception that sex offenders are uniquely dangerous also lies behind another common legislative response: civil commitment laws
for so-called sexually violent predators. Such “SVP” laws, which provide a mechanism for the authorities to hold sex offenders in custody after the expiration of their prison terms, have been adopted in twenty states since 1990.30
Although the frequency of new SVP laws has slowed down considerably
since 1999, three states and the federal government have adopted SVP statutes since 2006.31 In their contribution to this issue, Eric Janus and Robert Prentky suggest that the SVP statutes of the 1990s established a basic framework for thinking about sex offenders (“sex offenders . . . can be sorted according to their risk, and . . . the proper way to address the risk is through identification and physical separation”), which made possible later legislative responses, such as registration requirements and residency restrictions.32 Janus and Prentky worry about the further spread of this approach to other “dangerous people” outside the sex offense context, such as terrorism suspects.33
At first blush, the SVP laws appear far less prone to overbreadth problems than the registration laws. After all, the civil commitment process contemplates the sort of individualized determinations of
dangerousness that Lester would like to see for registration. Yet, Janus and Prentky identify a disturbing analytical problem at the heart of the SVP analysis: the failure of the courts to develop any clear standards to govern the determination of which sex offenders in fact suffer from the sort of mental disorder that warrants civil commitment.34 They argue that the courts have proven too quick to accept dubious new diagnoses that have been developed to support SVP petitions.35 Ultimately, their analysis suggests that our civil commitment processes are quite a bit less scientific than might first appear.
D. Child Pornography Sentencing
Although recent legislative responses to the sex crime panic have focused primarily on collateral sanctions (like registration) and other adjuncts to conventional criminal punishment (like mandatory
treatment and civil commitment), the past decade has also witnessed an extraordinary increase in the length of prison terms for some sex offenses. Perhaps no category of offense has seen a more dramatic
change in this regard than child pornography: in federal court, the average sentence for child pornography offenses increased from 36 months in 1994 to 109.6 months in 2007.36 In their contribution to this issue, Ian Friedman and Kristina Supler trace the evolution of the Federal Sentencing Guidelines pertaining to child pornography, which have played an important role in driving up the average sentence length. They find that the key changes in the Guidelines have emerged from congressional action, and not the idealized process of objective, research-driven deliberation by the Sentencing Commission.37 They also find that the Guidelines amendments have been
overbroad relative to their purpose: although Congress intends particularly to target mass producers and distributors of child pornography, important Guidelines amendments, such as the enhancement
for use of a computer, end up affecting nearly all child pornography defendants, including the vast majority who are not commercial pornographers.38 As Friedman and Supler observe, Congress’s
actions have served to blur the sensible distinctions the Commission has attempted to draw between traffickers and simple possessors.39
E. Death Penalty for Sexual Assault of a Child
There is no more dramatic means by which society signals its fear and loathing of criminal offenders than by putting them to death. But the Supreme Court’s Eighth Amendment jurisprudence plainly
takes capital punishment off the table for the overwhelming majority of sex offenders who do not kill. However, certain aspects of the Court’s 1977 decision in Coker v. Georgia suggested that an exception
might be made for sexual assault of a child.40 That possibility remained largely unexplored until 1995, when—concurrent with the proliferation of SVP and registration statutes—Louisiana adopted
the first in a new round of state laws that authorized capital punishment for sexual assault of a child.41 Despite the doubtful constitutionality of such measures, five other states then followed
Louisiana’s lead.42 However, in an unusually controversial 5–4 decision in June 2008, the Supreme Court held that the Constitution does not permit capital punishment for sexual assault of a child
when the crime did not result, and was not intended to result, in the death of the victim.43 This decision in Kennedy v. Louisiana marks one of the few instances when the Court has drawn a clear
limitation on the power of legislatures to increase the harshness of the sanctions imposed on sex offenders. Coverage of Kennedy rounds out this issue of FSR. Mary Graw Leary critiques aspects of the
Court’s reasoning, finding subtle shifts from other recent Eighth Amendment cases.44 Perhaps most notably, as Leary observes, the Court laid considerable emphasis on concerns regarding whether the
child victims themselves would be ill-served by the new capital punishment statutes.45 The argument that victims would actually be harmed by the Louisiana law was developed in an amicus brief, reprinted here, that was submitted on behalf of the National Association of Social Workers and other organizations.46 They contended, among other things, that the death penalty for
child rape would worsen the underreporting of child abuse, increase the incentives for child molesters to kill their victims, and magnify the trauma suffered by child victims while participating in the criminal justice system.
On the other side of the case, we also reprint an amicus brief filed on behalf of Missouri Governor Matt Blunt and Members of the Missouri General Assembly, and another brief filed on behalf of a
group of states. These briefs nicely exemplify much of the recent political discourse regarding sex offenses. Governor Blunt’s brief, for instance, emphasizes one particular, outrageous case of child
sex abuse.47 Of course, much of the recent sex offender legislation has been driven by intense public concern over a small number of high-profile cases, as indicated by the curious habit of naming the
statutes after children whose victimization has elicited widespread public outrage (including the Adam Walsh Act itself).48 Meanwhile, the states’ brief articulates the view of sex offender exceptionalism
that has fueled the wave of innovative legislative responses across the past two decades: “Violent child rape is unique. No other crime inflicts comparable damage. And no other crime requires the
peculiar depravity manifested by those who rape small children.”49
F. Still Panicking?
Jenkins suggested that periods of sex crime panic are marked by legislative responses that “cause harm in areas having nothing to do with the original problem and that divert resources away from
measures which might genuinely assist in protecting children.”50 Such would indeed seem to be the pattern in recent years. Society is rightly outraged by the horrific crimes committed against children
by notorious sex offenders like Earl Shriner (whose rape and murder of a young boy in 1989 prompted the state of Washington to adopt the first of the recent wave of civil commitment and registration
laws51), but there is reason to doubt whether the vast outpouring of legislation over the past two decades has actually done much to protect children from sexual violence—which is far more often perpetrated by relatives and acquaintances than by shadowy strangers like Shriner.52 Laws seeking to protect us from unknown sources of danger in our communities, such as registration and notification laws, divert attention and resources from more important threats to children. And our authors also suggest a number of other ways that recent legislation may prove counterproductive, for instance, measures that stigmatize and marginalize sex offenders may undermine their prospects for rehabilitation, while increased penalties for sex offenses may exacerbate the underreporting of intrafamilial sexual violence. And this is to say nothing of the erosion of constitutional rights, which may prove difficult to contain to the sex crimes area.
Perhaps nothing better illustrates the ironies of the panic-driven response than the Walsh Act’s extension of registration requirements to juvenile offenders. Although adopted specifically in order
to protect young people,53 the Walsh Act imposes damaging, long-term stigma on a large class of young people through the expanded registration regime.54 Research suggests that juvenile sex
offenders are very different than the Earl Shriners of the world: recidivism rates are low and rehabilitative prospects are high.55 But the social marginalization that results from registration seems
unlikely to contribute to the positive long-term prospects for these offenders. Indeed, there seems a real risk that registration will have precisely the opposite effect for some of them, possibly leading to more, not less, sexual victimization over the long run.56
II. Sex Offenses versus Crack Offenses: A Tale of Two Panics
Sex crimes were not the only source of panic in the mid-1980s. Crack cocaine hit many of America’s major cities at about the same time, seemingly accompanied by a surge in drug-related violence.57 By
June 1986, when college basketball star Len Bias died of an overdose of drugs—mistakenly reported in the media at the time as a crack overdose58—a crack panic was in full swing. Although even the
experts understood little about the association between crack and violence,59 Congress rushed to enact legislation premised on the belief that the crack form of cocaine represented a much greater
threat to public safety than the powder form.60 In their haste, legislators dispensed with hearings and other aspects of the typical legislative process.61 There ensued a “bidding war” between Democrats
and Republicans, and between the House and Senate, over how tough the new crack mandatory minimum sentences would be, with the now-infamous 100:1 ratio emerging from a process characterized
by one of the participants as “pulling numbers out of the air.”62 In all of this, no apparent consideration was given to the possibility that the harsh effects of the new sentencing law would be
borne disproportionately by minorities.63 On the contrary, even Democrats viewed the mandatory minimums as a benefit for minority communities.64
Although Congress followed the 1986 mandatory minimums with a new mandatory minimum for simple possession of crack in 1988,65 signs that the crack panic was receding began to appear within a
few years. A 1993 Sentencing Commission study criticized the 100:1 ratio in crack/powder sentencing and demonstrated that it was producing dramatic racial disparities.66 In 1995, the Commission recommended equalizing the ratio—a position that was initially supported by Attorney General Reno.67
Although Congress blocked equalization that year, the Commission and the administration continued to support a large reduction in the crack-powder disparity through the late 1990s.68 Finally, in 2007, the Commission succeeded in amending the crack sentencing guidelines to soften the 100:1 ratio without congressional interference, and, in an unusually strong repudiation of the earlier policy, made the
amendment retroactive.69Meanwhile, at the state and local level, many jurisdictions have rejected mandatory minimum sentences for drug crimes that were enacted during the panic years of the 1980s
and early 1990s,70 or have otherwise made significant shifts from punitive to treatment-oriented approaches to drug abuse.71 None of this is to say that crack sentencing in America has become a model
of restraint and rationality, but we have clearly come a long way since 1986.
So why has the current sex crime panic proven so much more durable than the crack panic that emerged at about the same time in the 1980s? Many factors have doubtlessly contributed to the different
direction of these panics, and identifying and assessing all of them lies well beyond the scope of these Editor’s Observations. However, in the remainder of this Part, I would like to suggest three
potentially significant differences between the panics, the consideration of which may help to illuminate the current state and future direction of the sex crime panic.
First, there can be no doubt that the history of the crack panic has been heavily influenced by its racial dimensions. African-American politicians initially supported tough sentences for crack offenders
because crack-related violence disproportionately affected African-American communities. But then opposition to 100:1 emerged out of a growing awareness in the early 1990s that the tough crack sentences were contributing to dramatic racial disparities in prison populations. As the crack issue became increasingly racialized, it is possible that the nation’s racial anxieties—which were at something of a peak in the early 1990s, during the era of the Rodney King trial and the subsequent Los Angeles riots—actually helped to fuel the crack panic in white America. But, given the nation’s particular historical and constitutional commitment to racial equality—at least at the level of rhetoric—sentencing laws that produced wide incarceration disparities were bound to become a
major source of embarrassment across the racial divide. And perhaps it is no accident that 100:1 was finally softened at almost exactly the same time that Barack Obama emerged as a serious candidate
for president: both events speak to real progress in advancing beyond the intense racial polarization of the 1990s.
This much, in any event, is clear: the rhetoric of racial justice, which has such powerful resonance in our political culture, served to contain and eventually diminish some of the pernicious
effects of the crack panic, but has played no apparent role in the sex crime panic. In time, it is possible that the sex crime issue will also acquire a civil rights dimension—specifically, to the extent that the laws are seen as targeting relatively harmless sexual nonconformists on the basis of orientations over which they have little control—but it is unlikely that these sorts of objections will ever acquire the force of the racial objections to the crack laws.
Second, in the mid-1990s, as the crack panic began to lose steam, the sex crime panic was reenergized by a new—and, to some, quite threatening—social phenomenon: the increasingly pervasive
presence of the Internet. The Internet brought an unprecedented ease of access to sexually explicit materials, including those featuring children, and offered new opportunities for predators to make
connections with potential underage sex partners. Fears that the Internet was making sexual exploitation and assault easier and more profitable were no doubt exacerbated in some quarters by a
general sense of unease with the new technology—the Internet provided means to circumvent traditional sources of information and authority, rendered old methods of commerce (and the jobs
dependent on them) obsolete, facilitated constant communication to and among teenagers outside the watchful eyes of parents, and generally seemed a lawless and disordered space populated by exhibitionists, con artists, outrage-mongers, freaks, geeks, and hardened nonconformists of all sorts. A desire to tame this new Wild West is, I suspect, an important subtext of many recent expressions of the sex crime panic. In any event, there can be no doubt that the Internet/sex crimes nexus has been a special point of legislative and law enforcement focus in recent years. I have already noted, for
instance, Internet stings72 and a crackdown on child pornography that almost exclusively targets those who receive or distribute images by use of a computer.73 On the legislative front, the Keeping
the Internet Devoid of Sexual Predators Act of 2008 requires registered sex offenders to disclose their Internet identifiers and establishes a mechanism for social networking sites to determine
which of their users are on the registry.74
Indeed, as a result of public pressure, MySpace and Facebook.
com were already trying to purge registered sex offenders even before passage of the new law.75 (The recent announcement that 90,000 sex offenders had been purged from MySpace was greeted
by one state attorney general in a characteristically alarmist fashion: “Almost 100,000 convicted sex offenders mixing with children on MySpace . . . is absolutely appalling and totally unacceptable. For every one of them, there may be hundreds of others using false names and ages.”76) For its part, the Walsh Act also had an Internet focus through provisions that required states to put their sex offender registries online for public use (which might be seen as a symbolic effort to bring social control to the Internet by making it a site for public shaming). All of this suggests that fears of new technology are helping to fuel the sex crime panic, and that the panic may continue for as long as the pace of
technological change is perceived to be outstripping the capacity of society to regulate the new forms of communication and commerce.
Third, the current sex crime panic has been intertwined from the start with the victims’ rights movement. The roots of the panic may be traced back to the insistence of feminists in the 1970s that
the sexual victimization of girls and young women was far more common and damaging than commonly supposed.77 Victims, as Jenkins observed, “responded enthusiastically to calls for self-assertion
and mobilization.”78 A politically powerful movement emerged from their demands that the criminal justice system both pursue sexual assaults more aggressively and treat victims with greater sensitivity. 79 The contemporary victims’ rights movement, of course, has a broader focus than just sexual victimization, but the movement’s critique of the criminal justice system likely draws special force from perceptions that the system traditionally treated rape victims in a callous and damaging manner and from the movement’s concomitant ability to sound feminist themes of empowerment. In any event, the current sex crime panic seems to differ from its predecessors in the extent to which victim experiences are emphasized,80 and there is likely some sort of mutually reinforcing dynamic between public attitudes toward sex crimes and public attentiveness to the needs of crime victims
more generally. By contrast, while no one doubts that crack has had a devastating effect on many lives, the mechanisms of victimization are less direct than in the context of sexual assault, and the
war on crack does not seem to have drawn any particular force from the victims’ rights movement.
Indeed, I have suggested elsewhere that the victims’ rights movement may at some level be antithetical to the philosophical underpinnings of the broader war on drugs.81 Increasing attentiveness to
victim needs may thus draw attention away from drug crime and enhance interest in sexual assault and exploitation as targets of legislative concern.
III. Responding Appropriately to Panics
Cycles of social panic seem a constant in American culture, from the Salem witch trials to the current anxieties regarding terrorists, child molesters, and illegal immigrants. When an issue becomes a
matter of intense public concern, it is unrealistic to expect legislators to await definitive analysis by experts and lengthy deliberative processes. Laws will be adopted, and some of them will eventually appear excessive or misdirected. Most troubling, given the nature of the liberty interests at stake, is the over-hasty creation of new felony-level crimes and mandatory minimum sentences. Once enacted, it is difficult to repeal such criminal laws, as demonstrated by the stubborn persistence of the 1986 and 1988 crack mandatory minimums against both the great weight of expert opinion and a widespread public recognition of the laws’ pernicious racial effects. Getting rid of a bad law normally requires passage of a new statute, and, as scholars of the American legislative process have
long recognized, in the absence of inflamed public opinion, it is generally easier for a minority to kill a new legislative proposal than for a majority to secure its adoption.82
In light of their particular visibility and symbolic importance, it may be even harder to repeal criminal laws than most other types
of statutes. For instance, legislative efforts to adjust the 100:1 ratio have been defeated by claims that doing so would send “the wrong message to young people.”83 In a world in which legislative proposals are evaluated based primarily on their symbolic content in either sending a message of toughness or lenience, proposals to repeal or soften mandatory minimums will always face rough sledding.
Legislators who wish to respond to strong public sentiment but who are troubled by the track record of statutes adopted in times of panic should consider a legislative device that reverses the forces
of legislative inertia: the sunset provision. When adopted, new criminal penalties can be set to expire within a given period of time. The history of the crack panic, as well as the earlier sex crime panics, suggests that ten years may be an ideal period of time to permit public passions to subside. A decade should also be a good amount of time to permit rigorous evaluation of the effectiveness of new laws.
For instance, as Janus and Prentky point out in this issue, the spread of civil commitment laws was rapid in the 1990s but slowed dramatically this decade as the fiscal burdens of commitment became
clearer.84 In the current budgetary climate, one wonders how many state legislatures would now be happy to see civil commitments die out quietly under the terms of a judicious sunset provision.
To be sure, in the panic atmosphere, a sunset provision may be criticized as watering down the legislature’s condemnation of whatever class of offense or offenders is being targeted. On the other hand, the adoption of a sunset does not necessarily mean there will be a weakening of the legal response to the subject of current public outrage. Indeed, if public concern remains high over an
extended period of time and analysis shows that tough penal responses are helpful, then the imminent expiration of one set of penalties may actually facilitate the enactment of even higher penalties.
But, if public concern wanes or penal responses are shown to be ineffective, it should be made as easy as possible to redirect scarce criminal justice resources in more fruitful directions.
Panics seem inevitable, but there may be politically feasible means to minimize their pernicious long-term effects on criminal law. I suggest sunset provisions as just one possibility. Sentencing commissions and guidelines, for instance, may also have a helpful role to play. In any event, the current flowering of legislative activity around the sex offense issue provides a good opportunity to develop and study new mechanisms to achieve a better balance between the need for legislative responsiveness to public outrage and the need for a humane and cost-effective criminal justice system.
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Notes
1 PHILIP JENKINS, MORAL PANIC: CHANGING CONCEPTS OF THE CHILD MOLESTER IN MODERN AMERICA 6-7 (1998).
2 Id. at 7.
3 Id.
4 Id. at 232.
5 Id.
6 Id. at 232-33.
7 Pub. L. No. 110-400, 122 Stat. 4224 (2008).
8 MO. REV. STAT. § 589.426 (2008).
9 Pub. L. No. 109-248, 120 Stat. 587 (2006).
10 See, e.g., Tom Kertscher, Racine Mayor Arrested in Sex Sting, MILW. J. SENTINEL, Jan. 14, 2009. Wisconsin’s
Internet Crimes Against Children Task Force, which was formed in 1999, averaged twenty arrests per year
over its first six years, but then arrested more than 100 people per year in the most recent three years for
which data are available. Id.
11 In Fiscal Year 2007, 1,084 federal defendants were sentenced under § 2G2.2 of the Federal Sentencing
Guidelines, which is the basic guideline for possessing or distributing child pornography. U.S. SENT’G COMM’N,
SOURCEBOOK OF FEDERAL SENTENCING STATISTICS, 2007, tbl. 17 (2008). This was the eighth most frequently
applied Chapter Two Guideline, ranking just below the robbery guideline, and well above the combined totals
for the guidelines for murder, manslaughter, and assault.
12 Richard G. Wright, From Wetterling to Walsh: The Growth of Federalization in Sex Offender Policy, 21 FED. SENT.
REP. 124 (2008).
FEDERAL SENTENCING REPORTER • VO L . 2 1 , NO. 2 • DECEMBER 2008 75
13 Id. at 124.
14 Id. at 128.
15 Id.
16 Id. at 127.
17 Id.
18 Joseph L. Lester, Brandishing the Mark of Cain: Defects in the Adam Walsh Act, 21 FED. SENT. REP. 107 (2008).
19 Id. at 109.
20 Id.
21 Id.
22 Corey Rayburn Yung, The Sex Offender Registration and Notification Act and the Commerce Clause, 21 FED.
SENT. REP. 123 (2008).
23 Id. at 123.
24 Michael Petrunik et al., American and Canadian Approaches to Sex Offenders: A Study of the Politics of Dangerousness,
21 FED. SENT. REP. 111 (2008).
25 Id. at 119.
26 Mary Ann Farkas & Gale Miller, Sex Offender Treatment: Reconciling Criminal Justice Priorities and Therapeutic
Goals, 21 FED. SENT. REP. 78 (2008).
27 Id. at 81.
28 Id. at 80.
29 Wright, supra note 12, at 130.
30 Eric S. Janus & Robert A. Prentky, Sexual Predator Laws: A Two-Decade Retrospective, 21 FED. SENT. REP. 90,
91, 2 (2008).
31 Id.
32 Id.
33 Id. at 95.
34 Id. at 93.
35 Id.
36 Ian N. Friedman & Kristina W. Supler, Child Pornography Sentencing: The Road Here and the Road Ahead, 21
FED. SENT. REP. 83, 1 (2008) (reporting data compiled by Troy Stabenow).
37 Id. at 84.
38 Id.
39 Id.
40 433 U.S. 584 (1977).
41 LA. STAT. ANN. § 14:42 (2007).
42 Kennedy v. Louisiana, 128 S. Ct. 2641 (2008).
43 Id.
44 Mary Graw Leary, Kennedy v. Louisiana: A Chapter of Subtle Changes in the Supreme Court’s Book on the Death
Penalty, 21 FED. SENT. REP. 98 (2008).
45 Id. at 102.
46 The brief is reprinted at 21 FED. SENT. REP. 139 (2008).
47 The brief is reprinted at 21 FED. SENT. REP. 147 (2008).
48 The Walsh Act is also dedicated to several other child victims, many of whom have also had their own
statutes named after them. Wright, supra note 12, at 124.
49 The brief is reprinted at 21 FED. SENT. REP. 145 (2008).
50 JENKINS, supra note 1, at 7.
51 ERIC S. JANUS, FAILURE TO PROTECT: AMERICA’S SEXUAL PREDATOR LAWS AND THE RISE OF THE PREVENTIVE STATE 14
(2006).
52 See id. at 46-47 (discussing data on frequency of different types of sex offenses).
53 See, e.g., Wright, supra note 12, at 126 (“Plain and simple, this legislation, I can say with certainty will save
children’s lives.” (quoting then-Senator Joe Biden)).
54 See Janus & Prentky, supra note 30, at 91 (“[T]his [registration] requirement will fall especially heavy on
juvenile sex offenders.”).
55 Id.
56 Wright, supra note 12, at 128.
57 TED GEST, CRIME & POLITICS: BIG GOVERNMENT’S ERRATIC CAMPAIGN FOR LAW AND ORDER 118 (2001).
58 Id. at 119.
59 Id. at 118.
60 Id. at 120.
61 Id. at 119.
62 Id. at 120.
63 Id. at 121.
64 Id.
65 Id. at 122.
66 Id. at 126.
67 Id.
68 Id. at 127.
69 Press Release, U.S. Sent’g Comm’n, U.S. Sentencing Commission Votes Unanimously to Apply Amendment
Retroactively for Crack Cocaine Offenses (Dec. 11, 2007), available at http://www.ussc.gov/PRESS/
rel121107.htm.
76 FEDERAL SENTENCING REPORTER • VO L . 2 1 , NO. 2 • DECEMBER 2008
70 Daniel F. Wilhelm & Nicholas R. Turner, Is the Budget Crisis Changing the Way We Look at Sentencing and Incarceration?,
15 FED. SENT. REP. 42-44 (2002).
71 Michael M. O’Hear, Federalism and Drug Control, 57 VAND. L. REV. 783, 823-37 (2004).
72 See supra text accompanying note 10.
73 See supra text accompanying note 38.
74 Pub. L. No. 110-400, 122 Stat. 4224 (2008).
75 Jenna Wortham, MySpace Turns Over 90,000 Names of Registered Sex Offenders, N.Y. TIMES, Feb. 4, 2009.
76 Id.
77 JENKINS, supra note 1, at 126-30.
78 Id. at 234.
79 Id. at 127.
80 Id. at 234.
81 Michael M. O’Hear, Victims and Criminal Justice: What’s Next?, 19 FED. SENT. REP. 83, 86-88 (2006).
82 WILLIAM N. ESKRIDGE, JR. ET AL., CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY
66-67 (3d ed. 2001).
83 Gest, supra note 57, at 127.
84 Janus & Prentky, supra note 30, at 91.
FEDERAL |
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Increase in Women Sex Offenders
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By posted by Kelly <gasoem@gmail.com>
Posted on 23.02.2009
Link to this research entry: [010] |
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Refer comments to the research no. 010 and send to Kelly at the above email address.
February 23, 2009
BLOG by Law Professor Douglas A. Berman
URL for his blog entry: http://sentencing.typepad.com/sentencing_law_and_policy/sex_offender_sentencing/
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How could more female offenders impact the reality and perception of sex offender sentencing?
This new article from the Dallas Morning News, headlined "Child sex cases involving women are on the rise in Texas," discusses a notable trend in sex offense cases:
The number of women serving time in Texas prisons for having sex with minors has increased more than 36 percent in the last five years. "Up to five years ago, we didn't talk about this," said Keith Durkin, a criminologist and researcher at Ohio Northern University. "Our culture is becoming more aware that women can and do commit these offenses."...
Last month, as a Collin County jury deliberated whether a 40-year-old Allen woman was guilty of having sex with two teenage boys, two other young men came forward with similar accusations against her. Rather than wait for a verdict, Regina Bowling pleaded guilty to two counts of indecency with a child and was sentenced to 10 years in prison.
Bowling is one of a growing number of women in Texas and nationwide accused of committing sex crimes against minors. So far this year, at least six Collin County women charged with having sex with minors – including Bowling – are either being prosecuted or have already had their cases adjudicated....
Studies suggest that female sex offenders often have a history of depression and anxiety. In addition, like many of their male counterparts, women abusers also may have been sexually abused as children. Durkin said teenage boys are ideal victims of such crimes because they're less likely to complain and, if they do, their outcries "may be dismissed as teenage fish stories."...
Most of the women convicted of sex crimes against minors have had relationships with men their own age but abuse children for their own emotional needs, said Anne Mooney, supervisor of the prison treatment program, which launched in October 2000. She said that unlike male sex offenders, who often seem to lead outwardly normal lives and have families and stable jobs, women convicted of these crimes often have chaotic lives, marked by substance abuse, frequent moves and erratic employment.
I have blogged before about notable cases in which female sex offenders have been sentenced differently than male sex offenders. But while it is easy to note how sex offense cases appear impacted by gender dynamics, it is hard to feel confident if and how these cases should be impacted by gender dynamics.
Some prior related posts:
Notable plea deal to avoid mandatory minimum in notable sex case
A better example of sex-offense plea deal gender disparity?
Another example of gender bias in adult-youth sex offense sentencing?
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STATES URGE SORNA NOT INCLUDE JUVENILES
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By Posted by Shelley Ledbetter <or4balancedlaws@yahoo.com>
Posted on 05.02.2009
Link to this research entry: [009] |
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Comments should go to Shelley at the above email, and refer to Research Item No. 009. Note: This includes TWO documents -
1. A Resolution from State Governments, and 2. A US Justice Report Assessing Megan's Law
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RESOLUTION FROM THE COUNCIL OF STATE GOVERNMENTS OPPOSING APPLICATION OF SORNA TO JUVENILES:
(found online at:
http://csgweb.csg.org/policy/pubsafety/documents/CSGResolutionOpposingSORNA.pdf ):
THE COUNCIL OF STATE GOVERNMENTS RESOLUTION IN OPPOSITION OF THE
SEX OFFENDER REGISTRATION AND NOTIFICATION ACT AS IT APPLIES TO JUVENILE OFFENDERS
WHEREAS, the Sex Offender Registration and Notification Act (SORNA) requires that juvenile sex offenders age 14 years and older be included on both state and national public sex offender registries;
WHEREAS, under SORNA, sex offender registries may publish the addresses of a juvenile offender s home, school or work, a photograph and description of the juvenile, and license plate number;
WHEREAS, these provisions of SORNA contradicts the rehabilitative intent and confidentiality that has been inherent in the juvenile justice system;
WHEREAS, SORNA ignores important developmental differences between juveniles and adults, namely that juvenile sex offenders are at a much lower risk to reoffend than adult sex offenders;
WHEREAS, SORNA further ignores evidence that a youth s brain is still developing until their early twenties, meaning juveniles are not fixed in their sexual offending behavior and may respond well to treatment;
WHEREAS, juveniles have fewer numbers of victims than adult offenders, and on average, engage in less serious and less aggressive behaviors;
WHEREAS, juvenile sex offenders do not pose the same public safety threat as adult sex offenders;
BE IT THEREFORE RESOLVED, that The Council of State Governments strongly opposes SORNA s application to juvenile sex offenders and urges Congress to revise the law to more accurately address the needs of juvenile offenders.
Adopted this 6th day of December, 2008 at the CSG 75th Anniversary Celebration and Annual Meeting in Omaha, Nebraska.
Governor M. Jodi Rell , 2008 CSG President
Rep. Kim Koppelman, 2008 CSG Chair
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OFFICIAL RELEASE OF U.S. DEPARTMENT OF JUSTICE-FUNDED RESEARCH: MEGAN'S LAW: ASSESSING THE PRACTICAL AND MONETARY EFFICACY (2008).
Kristen Zgoba, Ph.D.; Philip Witt, Ph.D.; Melissa Dalessandro, M.S.W.; Bonita Veysey, Ph.D., Megan's Law: Assessing the Practical and Monetary Efficacy (2008).
It can be found at: http://www.ncjrs.gov/pdffiles1/nij/grants/225370.pdf
EXECUTIVE SUMMARY
The research that follows concerns the various impacts of community notification and registration laws (Megan s Law) in New Jersey. Although this report includes a variety of interesting findings and many ideas that will be explored upon post grant period, this research was embarked upon, in general, to investigate: 1) the effect of Megan s Law on the overall rate of sexual offending over time; 2) its specific deterrence effect on re-offending, including the level of general and sexual offense recidivism, the nature of sexual re-offenses, and time to first re-arrest for sexual and non-sexual re-offenses (i.e., community tenure); and 3) the costs of implementation and annual expenditures of Megan s Law. These three primary foci were investigated using three different methodologies and samples. Phase One was a 21-year (10 years prior and 10 years after implementation, and the year of implementation) trend study of sex offenses in each of New Jersey s counties and of the state as a whole. In Phase Two, data on 550 sexual offenders released during the years 1990 to 2000 were collected, and outcomes of interest were analyzed. Finally, Phase Three collected implementation and ongoing costs of administering Megan s Law. The following points highlight the major findings of the three phases of the study.
- New Jersey, as a whole, has experienced a consistent downward trend of sexual offense rates with a significant change in the trend in 1994.
- In all but two counties, sexual offense rates were highest prior to 1994 and were lowest after 1995.
- County trends exhibit substantial variation and do not reflect the statewide trend, suggesting that the statewide change point in 1994 is an artifact of aggregation.
- In the offender release sample, there is a consistent downward trend in re-arrests, reconvictions and re-incarcerations over time similar to that observed in the trend study, except in 1995 when all measures spiked to a high for that period. This resulted in
significant differences between cohorts (i.e., those released prior to and after Megan s Law was implemented).
- Re-arrests for violent crime (whether sexual or not) also declined steadily over the same period, resulting in a significant difference between cohorts (i.e., those released prior to and after Megan s Law was implemented).
- Megan s Law has no effect on community tenure (i.e., time to first re-arrest).
- Megan s Law showed no demonstrable effect in reducing sexual re-offenses.
- Megan s Law has no effect on the type of sexual re-offense or first time sexual offense (still largely child molestation/incest).
- Megan s Law has no effect on reducing the number of victims involved in sexual offenses.
- Sentences received prior to Megan s Law were nearly twice as long as those received after Megan s Law was passed, but time served was approximately the same.
- Significantly fewer sexual offenders have been paroled after the implementation of Megan s Law than before (this is largely due to changes in sentencing).
- Costs associated with the initial implementation as well as ongoing expenditures continue to grow over time. Start up costs totaled $555,565 and current costs (in 2007) totaled approximately 3.9 million dollars for the responding counties.
- Given the lack of demonstrated effect of Megan's Law on sexual offenses, the growing costs may not be justifiable.
Sarah Bryer
Director
National Juvenile Justice Network
1710 Rhode Island Avenue, NW, 10th Floor
Washington, DC 20036
202/467-0864 x 105
cell: 202/714-1162
fax: 202/887-0738
bryer@juvjustice.org
www.njjn.org
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Revising 1974 Child Abuse Act - Our Best Hope
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By posted by Alex Marbury <alexm60@fastmail.fm>
Posted on 20.01.2009
Link to this research entry: [008] |
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Comments should refer to Research Entry No. 008 and be sent to the above email address
NOTE: This is a very important new statement by a major figure in the child abuse prevention field.
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Revising the Child Abuse Prevention and Treatment Act: Our Best Hope for Dealing with Sex-Abuse Hysteria in the United States
Richard A. Gardner*
ABSTRACT: The 1974 Child Abuse Prevention and Treatment Act has had unforeseen negative consequences in terms of encouraging false allegations of sex abuse. In order to receive federal funding, states had to pass legislation that mandated specific persons to report suspected cases of child abuse and granted immunity to the reporters. Funding was made available for the treatment of those judged to be victims, but not for individuals who were victims of false allegations. Several suggestions are made for changes in this legislation.
Although I have been actively involved in sex-abuse accusations for over a decade, it was not until recently that I became aware of the important role of the Child Abuse Prevention and Treatment Act (Public Law 93-247) (sometimes referred to as "The Mondale Act") in bringing about the sex-abuse hysteria we are witnessing today. When this legislation was passed by Congress in 1974, child abuse was rarely reported. In fact, its denial and cover-up were widespread. It was Congress's intent to rectify this deplorable situation by providing incentives for states to set up programs for child-abuse research, education, prevention, identification, prosecution, and treatment. Federal funding was made available to match state funding, and this served as an incentive for states to set up such programs.
In subsequent years the law was expanded and modified (P.L. 100-294, P.L. 101-126, P.L. 101-226, and P.L. 102-295), especially with regard to the progressive increase in the amount of federal money allocated to the states. There were certain provisions, however, that had to be satisfied in order for a state to qualify for federal monies. Of pertinence to my discussion here is that participating states had to pass legislation that
1. provided immunity from prosecution for all those reporting child abuse and
2. required specific persons (such as health-care professionals, law-enforcement officials, teachers, and school administrators) to report suspected child abuse to the appropriate child protection agency. Such mandated reporting, by necessity, had to be backed up by penalties (usually fines and/or prison sentences) for failure to report. In effect, this provision has made it a criminal offense for such designated persons not to report suspected abuse.
During the next few years all 50 states passed legislation providing for the establishment and funding of the appropriate programs. In addition, funding has been provided to the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands of the U.S., Guam, American Samoa, the Marshall Islands, the Common-wealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands.
It cannot be denied that those who crafted this legislation were well-meaning, and they cannot be faulted for not having foreseen the widespread grief that has been caused by the Act's implementation by the kinds of misguided and incompetent workers described in other publications of mine (Gardner, 1991, 1992). One central problem has been that state and federal money is available for the treatment of children who are found to have been abused, but no monies have been specifically allocated for the protection and treatment of those who have been falsely accused and/or children who have suffered psychiatric disturbances because they have been used as vehicles for the promulgation of a false accusation. Accordingly, an evaluator who concludes that abuse has occurred can justify recommending treatment for which state and federal monies will be provided. If the evaluator concludes that no abuse has occurred, there is no route for requesting funding for further evaluation and/or treatment.
In addition, there is a complex network of interaction and interdependence among mental health facilities, child protection services, and investigatory agencies (including police, detectives, and prosecutors). It behooves all working in this network to "cooperate" with one another because the greater the number of referrals, the greater the justification for the requisite funding. Laws mandating the reporting of child abuse and laws providing immunity from prosecution for those reporting abuse ensure an endless stream of referrals for investigators and "validators." All this predictably fuels sex-abuse hysteria, hysteria in which an accused individual's Constitutional due-process protections are commonly ignored.
These important elements contributing to the hysteria will remain operative unless legislative changes are made at both federal and state levels. Obviously, state-level changes are less likely to be enacted as long as the federal statutes remain in force. It is at the federal level, then, that the changes must be made, especially because of the immunity and mandated reporting clauses, which states cannot rescind without depriving themselves of federal funding.
Recommended Changes
These are the changes I consider crucial:
1. The federal immunity clause must be dropped. Immunity from prosecution is generally available only to specific groups essential to the functioning of the legal system, e.g., judges and prosecutors. It is incompatible with the basic philosophy of our legal system. Such immunity encourages frivolous and fabricated accusations. I would go further and recommend that states that include the immunity provision should not be entitled to federal funding. This change alone would have a formidable effect upon the hysteria we are witnessing today. It would, more than anything else, reduce significantly the flood of false referrals being generated at this time.
2. The clause mandating the reporting of child abuse must be dropped. In practice, it has resulted in the reporting of the most frivolous and absurd accusations by two-and three-year-olds, vengeful former wives, hysterical mothers of nursery-school children, and severely disturbed women against their elderly fathers. Highly skilled examiners, professionals who are extremely knowledgeable about sex abuse, examiners who know quite well that the accusation is false, are required by law to report the abuse to individuals who they often know to be inexperienced and even incompetent. Yet they face criminal charges if they do not report these accusations.
3. States in which suspected individuals are deprived of Constitutional due-process protections shall not be provided federal funding. In order to ensure the implementation of this requirement, states must provide verification that their investigatory and prosecutory procedures provide due-process protections before federal funding is made available.
4. The federal laws now provide funding for child abuse research, education, prevention, identification, prosecution, and treatment. Similar funding should be provided for programs designed to assist those who are falsely accused, as well as children who have been victimized by being used as vehicles for a false accusation. States falling to provide similar funding and facilities for the falsely accused and such victimized children should be deprived of federal funding. Such programs could be combined with existing child-abuse and child-neglect programs.
5. The federal law should require investigatory agencies at all levels to routinely notify and invite for voluntary interview(s) every individual accused of child abuse or neglect. (These suspects, of course, must first be informed of their legal rights.) The failure to routinely extend such invitations should deprive the agency of funding.
6. The federal law requires legal representation (a guardian ad litem) for the child victim, but does not require legal representation for the children who are victims of embroilment in false accusations. These children also should be provided with such representation, and the failure to do so should deprive the state of funding.
These proposals are not simply my own. They represent an amalgam of suggestions and recommendations provided by colleagues of mine in both the legal and mental health professions, especially Patrick E. Clancy, Esq.; Elizabeth F. Loftus, Ph.D.; Jay Milano, Esq.; the late Morton Stavis, Esq.; and James S. Wulach, Ph.D., J.D.
In addition to changing the federal law, we need more active backlash by those who have been falsely accused. We need more well-publicized civil lawsuits against incompetent and/or overzealous psychologists, psychiatrists, social workers, child protection workers, "child advocates," police, and detectives whose ineptitude has promulgated a false accusation. I recognize that success in such lawsuits may be difficult, especially in situations in which the vast majority of the defendant's colleagues and peers are operating at the same level of zealotry and incompetence. Furthermore, the falsely accused have to be more active in taking action against lawyers who generate frivolous lawsuits.
Moreover, every attempt must be made, through every possible medium, to bring to the attention of the general public the abomination that we are experiencing at this time. I myself have been an active participant in this realm and believe that some headway is being made. The media's thick wall of resistance to even giving consideration to the views of people like myself is starting to erode; however, I still view the public media as resistant to giving reasonable voice, time, and exposure to those like myself who are trying to bring this hysteria to the attention of the public.
These recommendations should be viewed as initial proposals at this time. I recognize that modifications may very well be necessary before they can be implemented. However, to the degree that these recommendations are implemented, to that degree can we hope for some kind of a turnaround in what is clearly one of the greatest waves of hysteria ever to descend upon the United States. If they are not implemented, there is a high likelihood that the hysteria and the victimization of the falsely accused will continue.
References
Gardner, R. A. (1991). Sex Abuse Hysteria: Salem Witch Trials Revisited (). Cresskill, NJ: Creative Therapeutics.
Gardner, R. A. (1992). True and False Accusations of Child Sex Abuse (). Cresskill, NJ: Creative Therapeutics.
* Richard A. Gardner is a psychiatrist, author, publisher, and lecturer at 155 County Road, P.O. Box 522, Cresskill, NJ, 07626-0317.
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Collateral Damage: New Report
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By posted by Thomas <constitutionalfights@yahoo.com>
Posted on 12.01.2009
Link to this research entry: [007] |
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Comments should be sent to the above email address and refer to Research Entry No. 007. Thanks to the constituionalfights website for this insightful commentary on Jill Levinson´s excellent new report on the terrible damage done to the families of sex offenders by the sex offender registry laws. We hope soon to post Dr. Levinson´s entire article here as well.
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Tuesday, January 6, 2009
Collateral Damage: Family Members of Registered Sex Offenders
Jill Levenson, Ph.D., Associate Professor of Human Services, Lynn University
Richard Tewksbury, Ph.D., Professor - University of Louisville, Department of Justice Administration, Louisville, KY
Unofficial Final Copy from American Journal of Criminal Justice (PDF file)
Abstract:
The purpose of this study was to better understand the impact of sex offender registration and notification laws on the family members of registered sex offenders (RSO). An online survey was utilized to collect data from 584 family members across the U.S. Employment problems experienced by the RSO, and subsequent financial hardships, emerged as the most pressing issue identified by family members. The likelihood of housing disruption was correlated with residential restriction laws; larger buffer distances led to increased frequencies of housing crisis. Family members living with an RSO were more likely to experience threats and harassment by neighbors. Children of RSOs reportedly experienced adverse consequences including stigmatization and differential treatment by teachers and classmates. More than half had experienced ridicule, teasing, depression, anxiety, fear, or anger. Unintended consequences can impact family members’ ability to support RSOs in their efforts to avoid recidivism and successfully reintegrate. Implications for criminal justice policy and practice are discussed.
Keywords: registered sex offender, family members, Megan’s Law, sexual abuse
Full reference:
Levenson, J. S., & Tewksbury, R. (2009). Collateral damage: Family members of registered sex
offenders. American Journal of Criminal Justice.
Available online: HERE (PDF File)
Discussion
This study is one of the first to survey family members of sex offenders to understand the ways in which they are affected by SORN laws. Employment limitations and subsequent financial problems emerged as the most pressing issue for family members, followed by housing concerns. The likelihood of housing disruption was higher for those family members restricted by larger residential buffer zone laws. Clearly, disruptions in employment and housing can affect
others with whom an offender lives. As well, a substantial minority of family membersexperienced threats, harassment, or property damage due to public disclosure about the sex offender.
Civil sanctions imposed on criminal offenders are sometimes called invisible punishments and often result in barriers to reintegration (Travis, 2005). The primary objectives of the criminal justice system are to punish offenders and protect communities, but rehabilitation and successful reentry are also important goals. It is well known that the stigma of felony conviction can hinder partaking in prosocial roles such as employment, education, parenting, and property ownership, all of which are vital to an offender’s investment in conformity to social norms and therefore to desistance from crime (Uggen, Manza, & Behrens, 2004).
Invisible punishments and their consequences (i.e. underemployment, lack of affordable housing, obstacles to assuming adult and parental roles) have a documented impact on families of criminal offenders (Hirsch, Dietrich, Landau, Schneider, Ackelsberg, Bernstein-Baker, & Hohenstein, 2002; Travis & Waul, 2003), but less obvious is the stigma felt by them.
The public disclosure to which sex offenders are exposed is unprecedented, and therefore SORN is unique in the degree to which invisible sanctions are inadvertently imposed upon and experienced by loved ones of offenders. As such, SORN creates impacts that are broad, and as illustrated in this study, deep and lasting. Family members, even those who do not live with RSOs, experience harassment, threats, violence, economic hardships, difficulties with housing, and psychological stresses simply because they are related to a sex offender. Whether intended or not, the criminal justice system, via SORN policies, extends punishments to a wide swath of
society beyond sex offenders.
In particular, the impact on children of sex offenders is worthy of contemplation. Whether we like it or not, many sex offenders have children of their own, and they encounter stigmatization as a result of their parent’s RSO status. What remains unclear is the myriad of
ways in which these experiences will impact their psychosocial development, their interpersonal relationships, and their sense of self. Furthermore, the ways in which their relationship with their
RSO parent is impacted is crucial and can influence their own future criminal and non-criminal behaviors. Those who are truly without culpability – and many times already victims – are punished through SORN polices and their consequences.
Not surprisingly, family members found little value in notification and did not believe that it contributes in meaningful ways to public safety. Noteworthy, however, is the miniscule number of subjects who believed that their RSO could be at risk to reoffend (This is a misleading synopsis in this report. US Department of Justice statistics show that the actual recidivism rates range between 3 and 5 % - search this blog for "truth over myth" for links )
Implications for criminal justice policy are clear. SORN laws have extended sanctions and their negative economic, social, and psychological consequences to others associated with sex offenders. A result may be that these laws ultimately impel loved ones to distance themselves from the RSO in order to limit, manage, or cope with their own experiences of collateral consequences. In turn, such disengagement will leave some offenders with fewer sources of
economic and social support and a weaker safety net for inhibiting recidivism. As a result, current policies may have effects that contradict their intentions: by imposing losses on RSOs’ family members, the conditions that work to inhibit reoffending are weakened or removed, potentially facilitating recidivism.
Furthermore, the Adam Walsh Act expands registration requirements by lengthening duration periods, including juveniles as young as 14 years old, and mandating that states conform to an offense-based categorization scheme which inflates the number of registrants classified as high-risk. Such a system is well-intentioned but misguided. The result will be an exponentially growing number of RSOs who are publicly identified for longer periods of time; of course this will also proliferate the impact of SORN laws on family members. Some sex offenders do indeed have a higher probability of recidivism, and therefore community safety is more likely to be
enabled when states adopt empirically derived risk assessment methods to validly, reliably, and discriminately identify high risk offenders (Grove & Meehl, 1996; Hanson & Morton-Bourgon, 2005). By reserving public disclosure for those who pose the greatest threat, resources can be more efficiently distributed, citizens can be appropriately warned, reintegration obstacles for offenders can be minimized, and collateral consequences for family members can be diminished. In contrast to the guidelines set forth by the Adam Walsh Act, evidence-based sex crime policies which employ empirically validated risk assessment strategies would be more apt to accomplish goals of public safety and successful reintegration.
This study does, however, represent a pioneering effort to quantitatively understand the experiences of loved ones of registered sex offenders. Their voices have been, to date, largely
unheard, and they are among the collateral victims of sexually violent crime. SORN policies have become increasingly restrictive over the years, exposing sex offenders and their families to
public scrutiny and placing severe limits on sex offenders’ employment, housing, and academic opportunities. Certainly, these policies were designed to protect the public from sexually dangerous individuals, but the collateral consequences of the laws to others were presumably unanticipated. Given that there is little research to suggest that community notification laws result in decreased recidivism (Prescott & Rockoff, 2008), their impediments to offenders’ reintegration and their consequences for innocent others deserve thoughtful consideration.
from the url
http://constitutionalfights.blogspot.com/2009/01/collateral-damage-family-members-of.html
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EVANS V. OHIO: A CURIOUS CASE
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By Terrence <tjwhite1963@gmail.com>
Posted on 27.12.2008
Link to this research entry: [006] |
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Comments should refer to Research Entry No. 006 and be sent to the above email address, with a copy to alexm60@fastmail.fm
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THE CURIOUS CASE OF EVANS V. OHIO, CV-08 646797
For those who are adventurous, the full text of the case is viewable here:
http://www.law.csuohio.edu/lawlibrary/resources/lawpubs/ohioconlaw/documents/Evansv.StateofOhio.pdf
The "Adam Walsh Act" and Ohio's "sex offender" statutes
In 2006, President George W. Bush signed into law the Federal "Adam Walsh Act", which was legislation ostensibly designed to "protect children" from "sexual predators".
In the following year, the Ohio legislature enacted and implemented Ohio's "Adam Walsh Act", which was intended to bring their previously-existing "sex offender legislation" into full compliance with the Federal "Adam Walsh Act".
Specifically, Ohio's new 2007 "Adam Walsh Act" amended the previously-existing statute in five ways:
(1) re-classification; (2) increased frequency and prolonged duration of registration requirements; (3) heightened notification requirements; (4) expanded residency restrictions; (5) heightened penalties for non-compliance. [Evans v. Ohio, pp.5-6]
The Federal Adam Walsh Act further classified offenders into three tiers of severity. Tier One offenders are the least restricted, and Tier Three offenders are the most severely restricted.
Tier One offenders must "register annually on the anniversary of the initial registration for fifteen years" [Evans v. Ohio, page 8], Tier Two offenders must "register every 180 days following the initial registration for a period of twenty-five years" [ibid.], and Tier Three offenders must "register every ninety days following the initial registration for life" [ibid.]. "All offenders,"
are required to submit specific detailed information including, but not limited to, their name, e-mail address, license plate numbers for each owned vehicle and for vehicles driven for work or otherwise made available to the offender." [ibid.]
Tier Three offenders "are subjected to heightened community notification provisions under the Adam Walsh Act" [ibid.]:
The Sheriff with whom the offender registers is required to inform all those living within one thousand feet of the offender's residence. ... The notice includes the offender's name, address, offense or conviction, classification, and photograph. ... The Sheriff also must provide the information to schools, day care facilities, law enforcement agencies, and other groups who have contact with minors within the specified geographic vicinty. [ibid., pp. 8-9]
The Adam Walsh Act also prohibits all registered "sexually oriented offenders, regardless of their classification," from residing "within 1000 feet of a school premises, pre-school, or child day care center" [ibid, page 9]. The same act further
permits landlords to terminate rental agreements ... [and] allows the owner of property within 1000 feet of the school [,] or the chief legal officer of the county, municipal corporation or township [,] to file for injunctive relief in an effort to oust the offender from his/her home. [ibid.]
"Failure to comply with the registration and notification provisions," says the act, "is a felony." [ibid., emphasis supplied]
The Evans case
The appellant in Evans v. Ohio was one "Tremaine Evans" of Cuyahoga County, Ohio. On February 10, 2003, Mr. Evans pled guilty to a single count of sexual battery in Cuyahoga County. It is noteworthy that this took place four years before Ohio had enacted its own version of the Adam Walsh Act. "At the [2003] hearing," says the appellate trial transcript,
the Judge found the Petitioner [Mr. Evans] to be a sexually oriented offender and sentenced him to one year in prison. [In addition,] The statute in place at the time of the hearing imposed annual registration requirements on the Petitioner for a ten-year period. [ibid., page 1]
"In November, 2007," as a result of the re-classification under the newly-enacted Ohio Adam Walsh Act, Mr. Evans "received notice that he would [henceforth] be required to register every ninety days for life [,] as a Tier III sex offender." [ibid., emphasis supplied]
The judge in the Evans case, and his important findings
The judge in Mr. Evans' appeal case was the Honorable Ronald Suster. Tremaine Evans' appeal was decided by him on 9 May, 2008. In his decision, Judge Suster held first and foremost that "Ohio's Adam Walsh Act is unconstitutional" [ibid., page 9]. This important conclusion arose "out of the retroactivity clause of the Ohio Constitution and the ex post facto clause of the United States Constitution." [ibid.]
Retroactivity and "ex post facto"
The Ohio Constitution (Article II, Section 28) prohibits the "retroactive application of laws." [ibid., page 10] In other words, when a new law is passed, it cannot be made to apply to people who were convicted of the same or a similar crime years earlier. By the same token, an "ex post facto" law is not just any law which is retroactive, but is also any law which increases the punishment for any crime, after the date of that crime's commission.
"Ex post facto" laws are similarly prohibited by the United States Constitution, in Article 1, Section 9 (for the federal government), and in Article 1, Section 10 (for the states). The U.S. Supreme Court has further held, in the case of Beazell v. Ohio (1925), 269 U.S. 167, 169-70, that
any statute which makes more burdensome the punishment for a crime, after its commission, ... is prohibited as an ex post facto law. [ibid., page 12]
Judge Suster thus decided that since Ohio's Adam Walsh Act violated both the "retroactivity clause" and the "ex post facto" prohibition, it therefore could not apply, or be enforced, against the appellant, Mr. Evans. The State of Ohio was enjoined from enforcing the provisions of the Ohio Adam Walsh Act as against Mr. Evans.
'Remedial' versus 'punitive' laws
Judge Suster also importantly held that the "Ohio Adam Walsh Act is not remedial in nature." This finding will require some explanation for the 'layman':
A "remedial" law is one that is adapted to a purpose clearly related to mere procedural matters, and not to matters altering the basic rights of life, liberty, or property. Any laws which alter those basic rights, are by legal definition criminal and non-remedial matters. Criminal and non-remedial laws require--according to Constitutional statutes--a finding by a regular jury as to the guilt of the accused, before they can be imposed. Remedial or civil laws do not require a finding by a jury in order to be imposed. These are very important legal distinctions, and it is to his eternal credit that Judge Suster did not shy away from thoroughly and properly examining and applying them.
This finding is the first and most important step toward further finding that such laws are actually punitive in nature, since the courts have pretty much held that remedial laws are by nature not punitive, but are civil or procedural processes.
The Ohio legislature disingenuously claimed that these "Adam Walsh Act" laws were not meant to "punish" offenders, but merely to "protect children." Yet the fact remains that these laws deprive offenders of their constitutional right of liberty. Such laws are therefore punitive, and are therefore clearly criminal and non-remedial matters. They are thus also matters that require or invoke a trial by jury.
Legislative intent versus 'effect' of laws
Equally important was Judge Suster's distinction between legislative intent, versus the net effect those laws have. Long-established legal practice in these United States requires all courts to equally consider the effects of laws, in addition to the intent of the legislators at the time the laws were enacted.
Legislative intent can be further defined in two ways: as stated in the express wording of the legislation proper, or as implied "through the language [used] and [the] placement [of the statutes] within the statutory scheme," or published law code [ibid. p.13] Ohio's legislators had demonstrated their true punitive intent by placing the Ohio Adam Walsh Act in the criminal code of their laws--not in any civil section [ibid.]. On both counts, then, Judge Suster found the Ohio Adam Walsh act to be punitive based on legislative intent. He also found them punitive based on their effects. He even flatly refers to the specious arguments of Ohio's legislators as "self-serving" [ibid.].
The 'Mendoza' or 'Doe' criteria for determining legislative 'punishment'
Judge Suster uses the well-known cases of Kennedy v. Mendoza-Martinez (1963), 373 U.S. 144, 170, and Smith v. Doe (2003), 538 U.S. 84, 97, as his test for defining "punishment", and determining whether or not it was present in the Evans case.
The "Mendoza-Martinez" or "Doe" factors, as they are called, consist of seven criteria or tests, which must be met, in order for legislation to be considered "punitive". Judge Suster uses only the first five of these factors:
(1) whether the statute was historically regarded as punishment;
(2) whether the statute operates as a disability or restraint;
(3) whether the statute furthers traditional notions of punishment;
(4) whether the statute has a connection to a non-punitive purpose;
and
(5) whether the statute is excessive in relation to the alternative purposes assigned.
In Smith v. Doe, the U.S. Supreme Court had held that "registration restrictions are more remedial in nature than punishment" [ibid., p.14], Nonetheless, Judge Suster held that Ohio's Adam Walsh Act by contrast "subject[s] the offenders to banishment and exile, both of which have historically been viewed as punishment." [ibid., p.15, emphasis supplied]
As to the second of the above criteria, Judge Suster ruled that the Ohio Adam Walsh Act did indeed "operate ... as a disability or restraint" [ibid.] precisely because, on the one hand, offenders are now required to "make periodic updates in person" (unlike Smith v. Doe, where they were not so required).
More importantly, however, Judge Suiter also concluded that the Ohio Adam Walsh Act operated "as a disability or restraint" because residency restrictions had previously been found to be "analogous to parole and probation requirements". [ibid.] This determination was made by the U.S. District Court for the Northern District of Ohio (in the case of Mikaloff v. Walsh [2007], U.S. Dist. LEXIS 65076, *30). Judge Gwin, of that court, had stated that "the residency restriction imposes an onerous affirmative disability and restraint." [ibid.,p.16] Perhaps somewhat ironically, that same word, "onerous", had earlier been used to describe the sex offender laws of another state, Georgia, by the chief legislative sponsor of their provisions (again indicating a punitive intent).
Regarding the third of the above criteria, Judge Suster ruled that Ohio's Adam Walsh Act operates as a deterrent by virtue of "classifying all offenders regardless of their likelihood of committing future offenses." [ibid.] Judge Suster further quoted Judge Gwin, as affirming that "the lack of any case-by-case determination demonstrates that the restriction is vengeance for its own sake." [ibid.] The Ohio Adam Walsh Act, concurs our Judge Suster, "furthers traditional forms of punishment," namely, vengeance or retribution. [ibid.]
The Ohio Adam Walsh Act is furthermore "punitive because it is not tailored to a non-punitive purpose"; specifically, because "it imposes new restrictions and obligations without any regard for [an] offender's potential for future harm." [ibid.]
Judge Suster then clarifies this position with some pointed observations which seem startling to have come from any jurist, given the recent dismal expectations most courts have cultivated among those of us who regularly watch such cases:
The [Ohio] Adam Walsh Act fails to consider an offender's likelihood to re-offend. The expanded notification provisions ostracize offenders. The residency restrictions are arbitrary. ... Similarly, the residency restrictions are overly broad. There is no evidence that residential proximity to schools increases the risk of re-offending. Even if such were true, the Act imposes the restrictions regardless of whether the sexual offense involved children [!] Therefore, the restrictions unnecessarily interfere with an offender's freedoms without any relation to a potential for harm [!] [Ibid., pp.16-17, emphasis supplied]
Judge Suster's summary in the Evans case
Judge Suster magnificently sums up his argument by flatly stating that "Ohio's Adam Walsh Act is an ex post facto law," and by further affirming that
[d]espite the express language [within the statute] which states an intent to protect the public, the language of the Act as well as its placement within the statutory scheme [among the criminal section of laws] evidence an intent to treat the legislation as criminal in nature. A comprehensive review of the Doe factors makes clear the punitive effect of the [Ohio] Adam Walsh Act. The [Ohio] Adam Walsh Act punishes offenders by restraining basic liberties and furthering traditional forms of punishment with obvious punitive purposes. ... This court concludes that the [Ohio] Adam Walsh Act is unconstitutional under both the retroactivity clause ... and the ex post facto clause. ... [ibid., pp.17-18]
Final editorial commentary
This case has set an important precedent, one which will very likely be viewed favorably by other states, in future instances of similar litigation. One can almost hear the nails being pounded one by one into the "coffin" of the nearly-dead Ohio Adam Walsh Act. Thank God for a single honest, conscientious jurist still alive in this nation--one who still values the fundamental human and constitutional rights of all human beings! Who could have hoped for or expected such a thing, given how many of our rights have already been lost?
Jurists in the other forty-nine states (and in other nations) would do well to take serious note of Judge Suster's argument and conclusions.
However, not all jurists are doing so (yet): as reported at the website "CM Law Library Blog" at the following link: http://cmlawlibraryblog.classcaster.org/blog/national/2008/06/10/challenges_to_adam_walsh_sex_offender_law_ohio_and_elsewhere , the day prior to this decision by Judge Suster, the Eighth U.S. Circuit Court of Appeals decided the exact opposite of the conclusions Judge Suster would reach, in a completely different case, State v. Holloman-Cross (May 8, 2008), 2008-Ohio-2189.
So, clearly, this is an issue that has yet to be definitively resolved by the courts. It is even possible that this issue now before the courts may even reach the level of the U.S. Supreme Court before being finally resolved. And so far, the Supreme Court has not seemed inclined to view sex offender registration requirements as "punishment". The Supreme Court has previously held, in other cases, that those requirements are remedial in nature. The greatest thing to fear, as regards the case of Evans v. Ohio, is that its conclusions may yet (possibly) be overturned at a higher appellate level.
Surely it is possible to legitimately protect children from potential abuse, without sacrificing human, civil, and constitutional rights in the process, and without seeking endless vengeance against those unfortunate persons who may once have harmed a child in a sexual manner. In the name of human decency itself, our society is obligated to thoroughly investigate these matters, and so insure such a just and reasonable outcome.
Evans v. Ohio is a crucially-important case, with legal findings and ramifications which will likely extend far beyond the confines of Ohio. |
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S.O. Residency Restrictions: Position Paper
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By posted by Kelly <gasoem@gmail.com>
Posted on 27.12.2008
Link to this research entry: [005] |
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Refer comments to Research Entry No. 005, and send to Kelly at the above email, with a copy to alexm60@fastmail.fm.
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The California Coaltion on Sex Offending
Position Paper on Sex Offender Residency Restrictions
2008
URL: For the complete report, go to http://www.ccoso.org, and click on ¨residency restrictions position paper¨ toward the bottom of the first page.
EXECUTIVE SUMMARY
¨Repeal or Substantially Modify ALL laws that mandate where ´sex offenders´ may or may not live...¨
In the last few years, laws and policies which regulate and limit where registered sex offenders may live have increasingly been enacted in a number of states, including California, and new requirements continue to be created. At present in California, a growing body of local ordinances adds to the restrictions imposed by state law under Proposition 83 and, as the number of affected registrants continues to rise, these policies appear to be resulting in a significant increase in the number of homeless and transient sex offenders.
Historically, these policies have evolved through a series of laws developed in response to horrific sex crimes and, in many cases, named for the victims of those crimes. The intent of each of these laws was to prevent future crimes of the same sort. Originally the laws required sex offenders to register. Then the registration information they provided – including their addresses - was made available to the general public. Then, as the information about where sex offenders were living became publicly available, efforts began – again initially in response to a terrible crime - to regulate where they could legally live by imposing sweeping residence restrictions.
Residence restriction policies are based upon some basic assumptions:
Persons not previously connected to or with ready access to the victim – “strangers” – pose the major threat of sexual assault.
Previously identified sex offenders who commit repeat offenses are responsible for most new sex crimes. Where a sex offender “lives” (sleeps at night) has some direct relationship to any new sex crime he may commit.
This paper examines the accuracy of each of these assumptions and concludes, based upon solid information, that none of them matches the realities of what is now known about sex offenses.
In only about 20% or less of sex crimes is the offender a stranger.
Nearly 90% of new sex crimes are committed by individuals who had no previous sex offense history and 75% or more of registered sex offenders do not commit another sex crime. The available research shows no relationship whatsoever between where a registered sex offender lives and the pattern of any new sex crime he commits.
Residence restrictions are making life increasingly difficult for an ever growing number of sex offenders in California. Some might say that the offenders have only themselves to blame. However, there is good reason to believe that the real-world consequences of residence restrictions are actually decreasing public safety because the conditions associated with homelessness are directly associated with increased sexual recidivism.
The conclusions and recommendations are that – difficult as it might be – laws that regulate where sex offenders may not live should be repealed or substantially modified in the interest of public safety. Instead of regulating where sex offenders may live, public policy efforts should address a number of other areas that can actually have an impact on reducing the likelihood of future sexual victimization of California’s children and adults. |
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Challenges to S.O. Laws (as of 06-08)
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By anonymous <alexm60@fastmail.fm>
Posted on 18.12.2008
Link to this research entry: [004] |
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Comments should refer to research entry no. 004, and be sent to Alex at the above email address, and I´ll send them to the person who submitted this article.
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National Law Journal: Challenges Grow Over Sex Offender Laws
Challenges grow over sex offender laws
Welter of confusion over restrictions.
NATIONAL LAW JOURNAL
Pamela A. MacLean / Staff reporter
June 9, 2008
The creation of complex sex offender registration systems and increasingly stringent limits on where offenders may live has spawned hundreds of legal challenges in state and federal courts throughout the nation.
The actions range from how long electronic tracking devices must be worn to whether juvenile records must be part of public registrations.
Challenges to the new laws — often hastily passed in the wake of a brutal crime — generally center on battles over who must comply, making retroactivity and prospective treatment crucial.
Takings claims under the Fifth Amendment of the U.S. Constitution also weigh heavily when a sex offender is forced from a long-time home by newly imposed bans on living near playgrounds or video arcades.
So far, 20 states hav e laws restricting where sex offenders can live, and hundreds of cities have their own limits, according to Wayne Logan, a criminal law professor at Florida State University College of Law in Tallahassee.
The most common laws banish offenders from zones within 2,000 feet of schools and parks.
The Georgia Supreme Court recently struck down a residency restriction on Fifth Amendment grounds, but upheld a portion that barred sex offenders from working in the restricted zones, Logan said. Mann v. Georgia Dept. of Corrections, 282 Ga. 754 (2007).
The California Supreme Court must choose from a raft of theories on how to apply a 2006 voter-approved residency law prospectively. So far, the plaintiffs, the state attorney general, local district attorneys, the governor and state prison officials have all weighed in with different positions. In re E.J. habeas corpus, No. S156933 (Calif.).
Ohio's legal meltdown
But it is Ohio that finds itself in the midst o f a legal meltdown because of a shift in sex offender registration law. Ohio rushed to switch from a long-standing state offender registration program to the 2006 federal Adam Walsh Child Protection and Safety Act registration system.
More than 26,000 people, including juveniles, were reclassified as sex offenders and ordered to register for a public list for up to 25 years. This spawned a federal class action challenge over timing of public notification, and a limited restraining order issued in Doe v. Dann, No. 8-cv-220PAG (N.D. Ohio). Also, thousands of individual state challenges to reclassifications are pending.
Many of those reclassified are indigent or in prison. Local counties won't pick up the tab for lawyers in what is considered a civil dispute, said Jay Macke, who leads the efforts for the Ohio Public Defenders Office. "We don't have enough indigent defense counsel to cover this," he said. But for those who can afford private lawyers, "this is a lawyer ful l-employment act," he said.
On May 9, a Cuyahoga County judge found that the Adam Walsh Act's retroactive reclassification violated both the Ohio Constitution's retroactivity clause and ex post facto protections. Evans v. Ohio, No. cv-08-646797. Several other appeals are pending, but ultimately the issue will go to the Ohio Supreme Court, the judge said.
The Adam Walsh Act, among other things, creates a national sex offender registry. It also restricts where an offender may live and allows civil psychiatric commitment of offenders.
The act also compels states to enact similar laws by mid-2009 or face loss of federal law enforcement funds. For states that quickly adopt the law, there is promise of a 10% bonus on federal funds.
The financial incentives amount to an "imaginary carrot and an imaginary stick," Macke said. Ohio received no reward for acting early, and now it appears that the money will be slashed from the federal budget anyway, he said.
Most courts have permitted laws restricting where sex offenders may live, according to Corey Yung, an assistant professor of criminal law at The John Marshall Law School in Chicago, who has written extensively on sex offender law. Battles now center on whom they apply to and under what conditions.
The 8th U.S. Circuit Court of Appeals approved residency restriction laws in Arkansas and Iowa, but the Iowa law was so onerous that most sex offenders were forced to live in cars, cemeteries or abandoned houses. Once homeless, they stopped registering. This prompted the Iowa County Attorneys Association and Iowa sheriffs in 2007 to petition the legislature to repeal the law as "counterproductive." The legislature refused.
"Legislators did such a good job of selling the idea that the restrictions on residency was a safety measure, people have the false idea it provides safety and politicians fear going against that," said Corwin Ritchie, executive director of the Iowa Count y Attorneys Association.
Florida had 60 cities in one year adopt restrictions and in 2005 some banned sex offenders from public hurricane shelters, forcing them to go to local prisons during storms.
"A lot of these people are becoming homeless — it is becoming a real problem where they can live," said Ronald Chapman, a criminal defense lawyer of West Palm Beach, Fla.'s Chapman Law Firm. Registration now includes putting the sex law violation on the driver's license.
California's voter-approved law also has conflicts with a sweeping legislative reform of sex offender residence limits that the state Supreme Court will have to sort out.
The voters' version, Proposition 83, bars sex criminals from living within 2,000 feet of a park or school, and offenders who complete prison terms must also wear global positioning devices for the rest of their lives.
In two federal court challenges to the same state initiative, one held the California residence restr ictions could not be applied to a prisoner released before the law's passage. Doe v. Schwarzenegger, No. C06-2521LKK (E.D. Calif.). The other held that it did not apply to a sex offender who served 12 years' probation before the act's adoption. Doe v. Schwarzenegger, No. C06-6968JSW (N.D. Calif.).
But those federal rulings are not binding on the state court, said Janet Neeley, deputy attorney general in charge of the sex offender registry in California.
"Nothing is cleared up," she said. "There are no California cases published on the point, and we don't even know who the law applies to," she said. So far the law has not been enforced because of the questions about who is covered under the "prospective" application. The initiative also failed to create a misdemeanor crime for violation, Neeley said. "There is no way to punish anyone, unless they are violating parole or probation."
And the Adam Walsh Act faces federal constitutional challenges. Two federal circu it courts, the 4th Circuit and the 11th Circuit, are now considering whether Congress violated the Constitution's commerce clause in passing the Adam Walsh Act because challengers allege it has no nexus with interstate commerce. U.S. v. Comstock, No. 06-hc-2195BR, and U.S. v. Powers, 07-cr-221KRS.
Pamela A. MacLean
California Bureau Chief
National Law Journal |
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Update on Adam Walsh Act (04/08)
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By anonymous <alexm60@fastmail.fm>
Posted on 17.12.2008
Link to this research entry: [003] |
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LEGAL RESEARCH -
NOTE: These are important updates, in case law, to provisions of the Adam Walsh Act, such as public sex offender registries, civil commitment, etc. They are sent to us by a Georgia participant who is currently working on further updates, with cases in Ohio, Georgia and elsewhere. We will add his work when it is available.
COMMENTS should be sent to Alex Marbury at the above email address, and I will send them to the Georgia participant who sent in this research article.
Updates to the Adam Walsh Act: John Teakell, Milner & Finn
April 10th, 2008
(The primary author of this report is Atty. David Finn, a former Texas trial judge and defense attorney.)
by John Teakell
Milner & Finn
Dallas, TX
Federal Bar Assn.’s Federal Criminal Practice Seminar
April 11, 2008
UPDATE TO “THE ADAM WALSH ACT”
AN OVERVIEW
Re: Adam Walsh Child Protection and Safety Act of 2006 - H.R.4472 – Public Law No: 109-248
I. Note
There are no official changes; however, there are several proposed updates moving through Congress. I listed the citations on those proposed changes below and the affected sections. As you know, the Adam Walsh Act is codified in several different places throughout the United States Code, so we located (and pasted below) the popular name table to allow for easy reference.
Second, regarding caselaw - We went through each section and gathered all of the “new” annotations provided in the West’s Digest system (by “new” I mean those that I did not include previously). The annotations of course provide some description of the important point that the case makes.
II. Legislative Changes
Here is the section converter table, so you can take the sections of the Act and see where they appear in the United States Code.
Section of Pub.L. 109-248 (Adam Walsh Act) USCA Classification
102 …………………………………….. 42 USCA § 16901
103 …………………………………….. 42 USCA § 16902
111 …………………………………….. 42 USCA § 16911
112 …………………………………….. 42 USCA § 16912
113 …………………………………….. 42 USCA § 16913
114 …………………………………….. 42 USCA § 16914
115 …………………………………….. 42 USCA § 16915
116 …………………………………….. 42 USCA § 16916
117 …………………………………….. 42 USCA § 16917
118 …………………………………….. 42 USCA § 16918
119 …………………………………….. 42 USCA § 16919
120 …………………………………….. 42 USCA § 16920
121 …………………………………….. 42 USCA § 16921
122 …………………………………….. 42 USCA § 16922
123 …………………………………….. 42 USCA § 16923
124 …………………………………….. 42 USCA § 16924
125 …………………………………….. 42 USCA § 16925
126 …………………………………….. 42 USCA § 16926
127 …………………………………….. 42 USCA § 16927
128 …………………………………….. 42 USCA § 16928
131 …………………………………….. 42 USCA § 16929
141(a)(1) ……………………………….. 18 USCA § 2250
142 …………………………………….. 42 USCA § 16941
143 …………………………………….. 42 USCA § 16942
144 …………………………………….. 42 USCA § 16943
145 …………………………………….. 42 USCA § 16944
146 …………………………………….. 42 USCA § 16945
151 …………………………………….. 42 USCA § 16961
153 …………………………………….. 42 USCA § 16962
211 …………………………………….. 18 USCA § 3299
301 …………………………………….. 42 USCA § 16971
302(4) ………………………………….. 18 USCA § 4248
503(a) ………………………………….. 18 USCA § 2257A
621 …………………………………….. 42 USCA § 16981
623 …………………………………….. 42 USCA § 3797ee
623 …………………………………….. 42 USCA § 3797ee-1
624 …………………………………….. 42 USCA § 16982
625 …………………………………….. 42 USCA § 16983
626 …………………………………….. 42 USCA § 3765
627 …………………………………….. 42 USCA § 16984
628 …………………………………….. 42 USCA § 16985
629 …………………………………….. 42 USCA § 16986
630 …………………………………….. 42 USCA § 16987
631 …………………………………….. 42 USCA § 16988
632 …………………………………….. 42 USCA § 16989
633 …………………………………….. 42 USCA § 16990
635 …………………………………….. 42 USCA § 16991
702(a) ………………………………….. 18 USCA § 2260A
703(a) ………………………………….. 18 USCA § 2252C
42 U.S.C.A. § 16911, 42 U.S.C.A. § 16913, 42 U.S.C.A. § 16914, 42 U.S.C.A. § 16918, 42 U.S.C.A. § 16919, 42 USCA § 16927 – SORNA (Sex Offender Registration and Notification Act – Title I of Adam Walsh Act) has proposed legislative action that has yet to pass in Congress.
2007 CONG US S 431, 110th CONGRESS, 1st Session (Jan 30, 2007), Introduced in Senate, PROPOSED ACTION: Amended.
2007 CONG US HR 719, 110th CONGRESS, 1st Session (Jan 30, 2007), Introduced in House, PROPOSED ACTION: Amended.
18 U.S.C.A. § 2250 – Failure to Register under SORNA has proposed legislative action
12007 CONG US HR 5475, 110th CONGRESS, 2d Session (Feb 19, 2008), Introduced in House, PROPOSED ACTION: Amended.
22007 CONG US S 2632, 110th CONGRESS, 2d Session (Feb 13, 2008), Introduced in Senate, PROPOSED ACTION: Amended.
32007 CONG US S 431, 110th CONGRESS, 1st Session (Jan 30, 2007), Introduced in Senate, PROPOSED ACTION: Amended.
42007 CONG US HR 719, 110th CONGRESS, 1st Session (Jan 30, 2007), Introduced in House, PROPOSED ACTION: Amended.
18 U.S.C.A. § 4248 – Civil Commitment of Dangerous Sex Offenders - Held unconstitutional by, U.S. v. Shields, 522 F.Supp.2d 317, 319+ (D.Mass. Nov 07, 2007); U.S. v. Comstock, 507 F.Supp.2d 522, 524+ (E.D.N.C. Sep 07, 2007)
42 U.S.C.A. § 16981 – Pilot Program for monitoring sexual offenders has proposed amendments
2007 CONG US HR 719, 110th CONGRESS, 1st Session (Nov 15, 2007), Engrossed in House, PROPOSED ACTION: Amended.
2007 CONG US HR 719, 110th CONGRESS, 1st Session (Nov 15, 2007), Referred in Senate, PROPOSED ACTION: Amended.
2007 CONG US HR 4094, 110th CONGRESS, 1st Session (Nov 06, 2007), Introduced in House, PROPOSED ACTION: Amended.
§ 2252C. Misleading words or digital images on the Internet – has proposed amendments
2007 CONG US S 431, 110th CONGRESS, 1st Session (Jan 30, 2007), Introduced in Senate, PROPOSED ACTION: Amended.
2007 CONG US HR 719, 110th CONGRESS, 1st Session (Jan 30, 2007), Introduced in House, PROPOSED ACTION: Amended.
III. Caselaw Update – NEW cases
A. From Annotations on SORNA
1. Generally
Congress did not impermissibly delegate its constitutional legislative duties by providing, in Sex Offender Registration and Notification Act (SORNA), that Attorney General was to specify whether statute was applicable to offenders convicted prior to its enactment date, and prescribe rules for registration of offenders unable to comply with statutory requirements; Congress was merely authorizing executive branch to give advice to courts on question of retroactivity. U.S. v. Madera, M.D.Fla.2007, 474 F.Supp.2d 1257. Constitutional Law 62(10); Mental Health 433(2)
Sex Offender Registration and Notification Act (SORNA), which imposed registration requirements on convicted sex offenders who traveled in interstate commerce, had a jurisdictional nexus, as was required to satisfy Commerce Clause. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923. Mental Health 433(2)
Sex Offender Registration and Notification Act (SORNA), and the federal offense it created, of failing to register as a sex offender (FFR), was a proper exercise of Congressional authority under the Commerce Clause; FFR had at least a de minimis effect on interstate travel, since it regulated sex offenders who traveled across state lines. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 433(2)
Failing to register as a sex offender, pursuant to the Sex Offender Registration and Notification Act (SORNA), was a continuing offense, and therefore venue was proper, in prosecution for traveling in interstate commerce and failing to register as a sex offender, in either Virginia, the state in which defendant’s travel originated, or in Tennessee, the place to which defendant changed his residency and in which he failed to register; failure to register involved an element of interstate or foreign travel. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Criminal Law 113
Sex Offender Registration and Notification Act’s (SORNA) requirement that sex offenders register and update their registration did not apply to defendants at the time of their indictments where their convictions pre-dated SORNA and they were indicted after SORNA’s effective date, but before the Attorney General exercised his authority under SORNA and issued an interim rule that made it clear that SORNA applied to sex offenders regardless of when they were convicted; the indictments occurred in the brief window during which SORNA’s scope remained undefined as to past offenders, and the statute required the Attorney General to animate SORNA’s provisions to previously convicted offenders. U.S. v. Kapp, M.D.Pa.2007, 487 F.Supp.2d 536. Statutes 278.29
2. Ex post facto
Defendant’s failure to register as a sex offender, as required by the Sex Offender Registration Notification Act (SORNA), occurred before issuance of Interim Rules making SORNA’s criminal provision applicable to persons convicted before its effective date, and therefore his indictment for failing to register violated Ex Post Facto Clause. U.S. v. Gill, D.Utah 2007, 2007 WL 3018909. Mental Health 433(2)
Congress did not violate ex post facto law clause of Constitution by passing Sex Offender Registration and Notification Act (SORNA), on grounds that registration requirements were additional punishment inflicted upon offender after he committed sexual offense; purpose of SORNA was civil, assurance of public safety, rather than penal, and ex post facto prohibition applied only to penal provisions. U.S. v. Madera, M.D.Fla.2007, 474 F.Supp.2d 1257. Constitutional Law 203; Mental Health 433(2)
Although Sex Offender Registration and Notification Act (SORNA) required sex offenders to provide detailed personal information and appear in person so that the jurisdiction could take a current photograph and verify their information, there was insufficient evidence to transform SORNA from a civil scheme into a criminal penalty, for purposes of the ex post facto clause. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923. Mental Health 433(2)
Ex Post Facto Clause precluded defendant’s conviction for failing to register or update his registration as a sex offender, as required by the Sex Offender Registration and Notification Act (SORNA), where the defendant was covered by an interim rule making SORNA applicable to him, but had traveled in interstate commerce, without registering, before that interim rule was issued; the defendant did not commit the elements of the offense after the statute became applicable to him, and a retroactive application of the statute would have resulted in an enhanced penalty. U.S. v. Stinson, S.D.W.Va.2007, 507 F.Supp.2d 560. Mental Health 469(7)
Sex Offender Registration and Notification Act (SORNA), and the federal offense it created, of failing to register as a sex offender (FFR), did not violate the Ex Post Facto Clause by inflicting greater punishment on defendant, a previously-convicted sex offender, than was provided by law when he was convicted; Act’s legislative history indicated that Congress’s concern was with public safety rather than with a desire to further punish sex offenders, and the registration requirements were not so punitive as to negate Congress’s intent that they be nonpunitive. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 433(2)
3. Procedural due process
Even if the sex offender registration requirements under the Sex Offender Registration and Notification Act (SORNA) were unclear prior to the issuance of the Attorney General’s interim rule on February 28, 2007 making the registration requirements of SORNA applicable to individuals who had been convicted of a sex offense before the enactment of SORNA, defendant had sufficient time between that date and June 2007, the end date of his charged conduct in failing to register and update a registration required by SORNA, to apprise himself of the new federal registration requirements, and defendant was fully aware of his responsibility to register as a sex offender under North Dakota law, and thus, defendant’s due process rights were not violated by his prosecution for failing to register. U.S. v. Lovejoy, D.N.D.2007, 2007 WL 2812681. Constitutional Law 4509(1); Mental Health 469(7)
Sex Offender Registration and Notification Act (SORNA) did not violate procedural due process rights of convicted sex offender, by not providing for notice and hearing prior to publication of his name on offender registry or prior to being compelled to register as offender; since all convicted offenders were required to register, there was no need for hearings to consider circumstances of individual cases. U.S. v. Madera, M.D.Fla.2007, 474 F.Supp.2d 1257. Constitutional Law 255(5); Mental Health 433(2)
Defendant’s potential for recidivism or current dangerousness were not material to Sex Offender Registration and Notification Act (SORNA) and, thus, principles of procedural due process did not require a hearing for defendant to argue these issues before he was compelled to comply with SORNA’s registration requirements. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923. Mental Health 469(4)
Sex Offender Registration and Notification Act (SORNA) did not violate the procedural due process rights of defendant, a previously-convicted sex offender, by failing to give him actual notice that travel across state lines subjected him to criminal penalties; defendant had sufficient notice that failing to register was illegal. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 433(2)
4. Substantive due process
Substantive due process rights of convicted sex offenders was not violated by Sex Offender Registration and Notification Act (SORNA), requiring that they register and disclose their whereabouts following release. U.S. v. Madera, M.D.Fla.2007, 474 F.Supp.2d 1257. Constitutional Law 255(5); Mental Health 433(2)
Sex Offender Registration and Notification Act (SORNA) was rationally related to legitimate government interests and, thus, did not violate the substantive due process component of the Fifth Amendment. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923. Mental Health 433(2)
Sex Offender Registration and Notification Act (SORNA) did not, by subjecting to the Act’s requirements persons who were not in fact convicted of an offense listed as a qualifying sex offense, or whose conviction was set aside, violate the substantive due process rights of defendant, a previously-convicted sex offender; defendant fell squarely within the category of persons required to register, and his conviction had not been set aside. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 433(2)
5. Continuing violation
Violation of the registration requirement of the Sex Offender Registration and Notification Act (SORNA) was not a continuing offense for purposes of the Ex Post Facto Clause, but rather, was complete when the defendant traveled in interstate commerce and then failed to register within the prescribed time period. U.S. v. Stinson, S.D.W.Va.2007, 507 F.Supp.2d 560. Mental Health 469(7)
6. Retroactive application
Sex Offender Registration and Notification Act (SORNA) was not being applied retroactively to defendant and his prosecution under Act, for failure to register as a convicted sex offender, was not premature, where defendant clearly was advised that he fell within the purview of SORNA on the basis of his New York conviction for second-degree sexual assault, he was specifically told by New York law enforcement personnel that he needed to register as a sex offender in Florida if he chose to move there, and he traveled to Florida where he established residence, secured a driver’s license, and was employed after SORNA went into effect, but failed to register. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923.
Defendant was required to register as a sex offender, pursuant to the Sex Offender Registration and Notification Act (SORNA), regardless of whether the Attorney General had adopted required rule specifying the applicability of the Act to sex offenders convicted before its enactment; defendant was required to register or update his registration under the existing state law of his residence. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 469(2)
Sex Offender Registration and Notification Act’s (SORNA) requirement that sex offenders register and update their registration did not apply to defendants at the time of their indictments where their convictions pre-dated SORNA and they were indicted after SORNA’s effective date, but before the Attorney General exercised his authority under SORNA and issued an interim rule that made it clear that SORNA applied to sex offenders regardless of when they were convicted; the indictments occurred in the brief window during which SORNA’s scope remained undefined as to past offenders, and the statute required the Attorney General to animate SORNA’s provisions to previously convicted offenders. U.S. v. Kapp, M.D.Pa.2007, 487 F.Supp.2d 536. Statutes 278.29
7. Policy safety regulation
There was rational public safety basis for regulation of interstate commerce, underlying Sex Offender Registration and Notification Act (SORNA) requirements that released offenders report address changes to authorities, precluding claim that SORNA violated Commerce Clause. U.S. v. Madera, M.D.Fla.2007, 474 F.Supp.2d 1257. Mental Health 433(2)
8. Commerce clause
Sex Offender Registration and Notification Act (SORNA), which imposed registration requirements on convicted sex offenders who traveled in interstate commerce, had a jurisdictional nexus, as was required to satisfy Commerce Clause. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923. Mental Health 433(2)
Sex Offender Registration and Notification Act (SORNA), and the federal offense it created, of failing to register as a sex offender (FFR), was a proper exercise of Congressional authority under the Commerce Clause; FFR had at least a de minimis effect on interstate travel, since it regulated sex offenders who traveled across state lines. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 433(2)
9. Venue
Failing to register as a sex offender, pursuant to the Sex Offender Registration and Notification Act (SORNA), was a continuing offense, and therefore venue was proper, in prosecution for traveling in interstate commerce and failing to register as a sex offender, in either Virginia, the state in which defendant’s travel originated, or in Tennessee, the place to which defendant changed his residency and in which he failed to register; failure to register involved an element of interstate or foreign travel. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Criminal Law 113
10. Standing
Previously-convicted sex offender who could allege no injuries traceable to the Sex Offender Registration and Notification Act’s (SORNA) alleged violations of procedural and substantive due process did not have standing to challenge the constitutionality of the Act on such grounds. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Constitutional Law 885
11. Constitutional delegation of authority
Fact that Congress delegated the ability to specify applicability of registration requirements to sex offenders convicted before enactment of Sex Offender Registration and Notification Act (SORNA), or its implementation in certain jurisdictions, or granted Attorney General the power to promulgate regulations to ensure registration of individuals outside the purview of statutory language, did not allow Attorney General to decide if the statute would have retroactive application, in violation of non-delegation doctrine; rather, the statutory language was indicative of a gap-filling provision to insure SORNA’s clearly articulated purpose was effectuated when sex offenders fell outside the purview of statutory language. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923. Constitutional Law 2422(3)
Provision of Sex Offender Registration and Notification Act (SORNA) which gave Attorney General authority to decide whether persons classified as sex offenders, who were unable to register, should be subject to the registration requirements, was not unconstitutional, in violation of the non-delegation doctrine, as applied to defendant, a previously-convicted sex offender; the delegation of authority to the Attorney General was not so broad as to be violative of the non-delegation doctrine, and defendant was not a person who was unable to register within the meaning of the provision. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 433(2)
B. Civil Commitment Statute Annotations:
1/2 . Constitutionality
Civil commitment of those already in federal custody who, as result of mental condition, likely would commit sexually violent crimes had rational relation to congressional authority to proscribe and prevent such conduct, for purpose of Necessary and Proper Clause challenge. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. United States 22
Congress lacked authority, under either the Commerce Clause or the Necessary and Proper Clause, to enact the Adam Walsh Child Protection and Safety Act section permitting the civil commitment of sexually dangerous persons as it pertained to individuals previously committed due to mental incompetence to stand trial, to prisoners whose sentences were about to expire, or to people in federal custody against whom all criminal charges were dropped based on mental condition; the section at issue was aimed at preventing sexually violent conduct underlying various federal sex crimes, but it was the purview of the states to deal with such underlying conduct, and the federal government had no broad power generally to criminalize sexually dangerous conduct and child molestation. U.S. v. Comstock, E.D.N.C.2007, 507 F.Supp.2d 522. United States 22
Scope of Congress’s auxiliary power to Necessary and Proper Clause authority extended so far as to allow Congress to prevent the release of federal inmates, whose sentences had expired, due to their sexually dangerous propensities, and thus statute providing for the civil commitment of such inmates was a valid exercise of Congress’s legislative power and was not facially invalid, where Congress had rationally set up a process for determining which individuals were likely to commit further acts of sexual violence proscribed under Congress’s Commerce Clause authority. U.S. v. Carta, D.Mass.2007, 503 F.Supp.2d 405. United States 22
1. Due process
Failure of statute governing civil commitment of sexually dangerous persons to require finding of proof beyond reasonable doubt that person had engaged or attempted to engage in sexually violent conduct or child molestation prior to allowing that person’s potentially indefinite commitment as sexually dangerous person constituted violation of due process. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. Mental Health 433(2)
2. Equal protection
Government did not violate equal protection clause by designating certain federal prisoners whose terms were expiring as sexually dangerous persons and subjecting them to civil commitment procedures, although federal prison population contained relatively few sexually violent offenders and child molesters. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. Mental Health 433(2)
3. Vagueness
Terms, “serious mental illness,” “serious difficulty,” “sexually violent conduct,” and “child molestation,” in Adam Walsh Act for civil commitment of sexually dangerous persons, provided sufficiently explicit standards to defeat vagueness challenge. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. Mental Health 433(2)
4. Unreasonable seizure of person
To avoid serious questions under Fourth Amendment and Due Process Clause, provision under Adam Walsh Act for civil commitment of sexually dangerous persons would be construed to contain implicit requirement that opportunity for probable cause hearing before neutral decision maker had to be afforded within reasonable period of time after any detention resulting from stay of release at end of his prison sentence; except in exigent or extraordinary circumstances, and absent reasonable alternative, hearing had to occur within 48 hours after certified individual was detained beyond his scheduled release date. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. Mental Health 462
5. Construction and application
Violation of due process by statute governing civil commitment of sexually dangerous persons, in not requiring finding of proof beyond reasonable doubt that such person had engaged or attempted to engage in sexually violent conduct or child molestation prior to that person’s indefinite commitment as sexually dangerous person, could be remedied by severing phrase “by clear and convincing evidence” from statute and allowing government to demonstrate that such person previously had been convicted of relevant sex crime. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. Statutes 64(6)
6. Civil nature of commitment
Commitment scheme established by the Adam Walsh Child Protection and Safety Act section permitting the commitment of sexually dangerous persons was properly characterized as a civil scheme, not a criminal proceeding, thus defeating double jeopardy, ex post facto, cruel and unusual punishment, and jury trial claims challenging the scheme, such claims being cognizable only in the criminal or punitive context; the statute did not affix culpability for prior criminal conduct, no finding of scienter was required for commitment, and because the statute was explicitly aimed at confining people who had been found to have serious difficulty controlling their conduct, it could not be said that the it served a deterrent purpose. U.S. v. Comstock, E.D.N.C.2007, 507 F.Supp.2d 522. Sentencing and Punishment 1596
Statute providing for the civil commitment of sexually dangerous inmates whose sentences had been fulfilled was civil, rather than criminal, in nature, and thus statute did not facially violate any constitutional guarantee to those facing criminal charges, even though some effects of the statute were punitive in nature, such as the involuntary detention of the inmates, where statute was not otherwise so punitive in purpose or effect as to negate the intention to deem it civil. U.S. v. Carta, D.Mass.2007, 503 F.Supp.2d 405. Mental Health 456
7. Burden of proof
Use of a clear and convincing burden of proof by the section of the Adam Walsh Child Protection and Safety Act permitting the civil commitment of sexually dangerous persons violated the substantive due process rights of those subject to commitment under that section, despite claim that the clear and convincing standard properly allocated the risk of an erroneous commitment between the parties, and that post-deprivation proceedings existed to cure any erroneous commitment; reasonable doubt standard should have applied to the factual determination that an individual sought to be committed engaged or attempted to engage in sexually violent conduct or child molestation, which determination was a condition precedent to commitment. U.S. v. Comstock, E.D.N.C.2007, 507 F.Supp.2d 522. Constitutional Law 4344
8. Certification of sexually dangerous person
Certificates that were issued to federal prisoners whose terms were expiring designating them as “sexually dangerous persons” under Adam Walsh Act violated due process, since each certification stated only that named individual had been certified based on review of his records and certification did not identify underlying instances of misconduct upon which certification had been made. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. Mental Health 458
9. Standing
Persons in custody of Bureau of Prisons (BOP) who were certified as “sexually dangerous persons” under Adam Walsh Act, as private parties, did not have standing to assert independent constitutional claim alleging that Act violated Tenth Amendment. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. States 4.16(1)
C. Non-annotation cases that nevertheless cite an Adam Walsh Provision
There are several cases that have cited the various provisions of the Adam Walsh Act since you last spoke on the topic. Included here are cases that did not yet appear in the annotations section above to the United States Code Annotated at this point in time, but seem to have some importance. Another observation is that there seemed to be no cases that have made their way to the various courts of appeals yet (at least, there appear to be no opinions from the courts of appeals).
U.S. v. LeTourneau, 534 F.Supp.2d 718, 720+ (S.D.Tex. Jan 09, 2008) – This looks to be the only Texas state or federal case analyzing the Adam Walsh law that we could find.
U.S. v. Thomas, 534 F.Supp.2d 912, 913+ (N.D. Iowa Feb 13, 2008)
U.S. v. Gould, 526 F.Supp.2d 538, 540+ (D.Md. Dec 13, 2007) (NO. CRIM.WDQ-07-0359)
U.S. v. Smith, 481 F.Supp.2d 846, 849 (E.D.Mich. Mar 08, 2007)
U.S. v. Lovejoy, 516 F.Supp.2d 1032, 1034+ (D.N.D. Sep 28, 2007)
Keep in mind, there are several unreported cases, or cases that just have not yet been reported yet. Some of these cases may be fairly important, but it is difficult to tell at this point in time. These cases are probably mostly concern various constitutional challenges to the statute (ex post facto, retroactive effect, commerce clause, due process challenges, etc.). Here are those cites, just in case you want to view them:
- U.S. v. Jorge-Salgado, 2008 WL 860832, *2 (8th Cir.(Minn.) Apr 02, 2008) (NO. 07-1505)
- U.S. v. Kent, 2008 WL 360624, *3+ (S.D.Ala. Feb 08, 2008) (NO. CRIM. 07-00226-CG)
- U.S. v. Bonner, 2007 WL 4372887, *1 (S.D.Ala. Dec 11, 2007) (NO. CRIM A 07-00264-KD)
- U.S. v. Kent, 2007 WL 2746773, *1+ (S.D.Ala. Sep 20, 2007) (NO. CRIM. A. 07-00226-KD)
- U.S. v. Terwilliger, 2008 WL 50075, *1+ (S.D.Cal. Jan 03, 2008) (NO. 07CR1254 BTM)
- U.S. v. Elliott, 2007 WL 4365599, *2+ (S.D.Fla. Dec 13, 2007) (NO. 07-14059-CR)
- U.S. v. Cardenas, 2007 WL 4245913, *1+ (S.D.Fla. Nov 29, 2007) (NO. 07-80108CR)
- U.S. v. Ambert, 2007 WL 2949476, *1 (N.D.Fla. Oct 10, 2007) (NO. 4:07-CR-053-SPM)
- U.S. v. Kelton, 2007 WL 2572204, *1 (M.D.Fla. Sep 05, 2007) (NO. 5:07-CR-30OC10GRJ)
- U.S. v. Gonzales, 2007 WL 2298004, *1 (N.D.Fla. Aug 09, 2007) (NO. 5:07CR27-RS)
- U.S. v. Beasley, 2007 WL 3489999, *1+ (N.D.Ga. Oct 10, 2007) (NO. CRIM.1:07CR115TCB)
- U.S. v. Cole, 2007 WL 2714111, *1+ (S.D.Ill. Sep 17, 2007) (NO. 07-CR-30062-DRH)
- U.S. v. Dixon, 2007 WL 4553720, *1+ (N.D.Ind. Dec 18, 2007) (NO. 3:07-CR-72 01 RM)
- U.S. v. Adkins, 2007 WL 4335457, *4+ (N.D.Ind. Dec 07, 2007) (NO. 1:07-CR-59)
- U.S. v. Howell, 2008 WL 313200, *1+ (N.D.Iowa Feb 01, 2008) (NO. CR07-2013-MWB)
- U.S. v. Howell, 2007 WL 3302547, *4+ (N.D.Iowa Nov 08, 2007) (NO. CR07-2013-MWB)
- U.S. v. May, 2007 WL 2790388, *2+ (S.D.Iowa Sep 24, 2007) (NO. 4:07-CR-00164-JEG, 1:07-CR-00059-JEG)
- U.S. v. Samuels, 2008 WL 169792, *2+ (E.D.Ky. Jan 17, 2008) (NO. CRIM.A. 07-62-DLB)
- U.S. v. Pitts, 2008 WL 474244, *1+ (M.D.La. Feb 14, 2008) (NO. CRIM.A. 07-157JVP-CN)
- U.S. v. Davis, 2008 WL 510599, *1+ (W.D.La. Jan 22, 2008) (NO. CRIM 07-60003)
- U.S. v. Mantia, 2007 WL 4730120, *2+ (W.D.La. Dec 10, 2007) (NO. CRIM. 07-60041)
- U.S. v. Pitts, 2007 WL 3353423, *1+ (M.D.La. Nov 07, 2007) (NO. CRIM.A. 07-157-A)
- U.S. v. Nugent, 2008 WL 413273, *3+ (W.D.Mo. Feb 13, 2008) (NO. 07-5056-01-CRSW-GAF)
- U.S. v. Rich, 2007 WL 4365735, *2+ (W.D.Mo. Oct 31, 2007) (NO. CRA070027401CRWHFS)
- U.S. v. Muzio, 2007 WL 2159462, *1+ (E.D.Mo. Jul 26, 2007) (NO. 4:07CR179 CDP)
- U.S. v. Muzio, 2007 WL 1629836, *1+ (E.D.Mo. Jun 04, 2007) (NO. 407CR179 CDP)
- U.S. v. Aldrich, 2008 WL 427483, *2+ (D.Neb. Feb 14, 2008) (NO. 8:07CR158)
- U.S. v. Hacker, 2008 WL 312689, *1+ (D.Neb. Feb 01, 2008) (NO. 8:07CR243)
- U.S. v. Aldrich, 2007 WL 4924932, *2+ (D.Neb. Dec 14, 2007) (NO. 8:07CR158)
- U.S. v. Patterson, 2007 WL 3376732, *1 (D.Neb. Nov 08, 2007) (NO. 8:07CR159)
- U.S. v. Patterson, 2007 WL 2904099, *3+ (D.Neb. Sep 21, 2007) (NO. 8:07CR159)
- U.S. v. Barnes, 2007 WL 2119895, *1+ (S.D.N.Y. Jul 23, 2007) (NO. 07 CR. 187)
- U.S. v. Deese, 2007 WL 2778362, *2 (W.D.Okla. Sep 21, 2007) (NO. CR-07-167-L)
- U.S. v. Sallee, 2007 WL 3283739, *1 (W.D.Okla. Aug 13, 2007) (NO. CR-07-152-L)
- U.S. v. Templeton, 2007 WL 445481, *2 (W.D.Okla. Feb 07, 2007) (NO. CR-06-291-M)
- U.S. v. Dillenbeck, 2007 WL 2684838, *1+ (D.S.C. Sep 07, 2007) (NO. 4:07-CR-213-RBH)
- U.S. v. Heriot, 2007 WL 2199516, *2 (D.S.C. Jul 27, 2007) (NO. CR 307-323)
- U.S. v. Utesch, 2008 WL 656066, *3+ (E.D.Tenn. Mar 06, 2008) (NO. 2:07-CR-105)
- U.S. v. Sawn, 2007 WL 2344980, *1+ (W.D.Va. Aug 15, 2007) (NO. CRIM 607CR00020)
- U.S. v. Roberts, 2007 WL 2155750, *1+ (W.D.Va. Jul 27, 2007) (NO. 6:07 CR 70031)
David Finn |
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Stranger Danger Not the Issue - Breaking the Silence
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By James Straub, Barbara Schwartz <rickyslife@windstream.net>
Posted on 13.12.2008
Link to this research entry: [002] |
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Comments about this research talk should refer to Research Item No. 002, and be sent to Mary Duval at the above email address, with a copy to me at alexm60@fastmail.fm. We do not have the email addresses for Dr. Schwartz or for James Straub the reporter, but we will try to get them and forward the comments.
SENT TO US BY the Oklahoma RSOL affiliate group - CFCOKLAHOMA.ORG., Mary Duval
Report by Barbara Schwartz, given in a talk at Blue Hill, Maine, Congregational Church, Nov. 27, 2008
Sex Offender Expert Offers Coping Advice
Written by James Straub
Thursday, November 27, 2008
BLUE HILL — Generation after generation of youngsters has ventured from home and into the cruel world with this time-honored parental advice echoing in their minds: “Don’t talk to strangers.”
http://ellsworthmaine.com/site/index.php?option=com_content&task=view&id=18134&Itemid=1
Turns out the well-intentioned words to live by are way off the mark when it comes to protecting our offspring from the horrors of child sexual abuse.
It would be better to admonish our children to beware of Uncle Charlie, the youth choir director, the babysitter and others near and dear to them.
It would be better yet to teach them the value of talking openly to their parents.
Barbara Schwartz, noted expert in the field of sex offender treatment, made those points before an audience of about 100 area residents who packed the Blue Hill Farm Country Inn Nov. 19.
Schwartz’s talk, “No More Victims: Sex Offenders and the Community,” was sponsored by “Breaking the Silence,” a support group for victims of sexual abuse, family members and community.
In introducing Schwartz, host Jim Schatz said that society is marginally effective at taking deviant behavior out of the community, but not at all effective at taking such behavior out of the offender.
Focusing on child molesters, Schwartz spoke for nearly two hours on managing sex offenders in the community.
“Stranger danger is not where we should put our energy,” Schwartz said, adding that children are far more likely to be sexually abused by a family member, babysitter, minister, Scout leader or some other trusted adult.
Despite a media blitz that creates a scary climate through shows such as “CSI” and “Law and Order,” sadistic pedophiles — those who hurt or kill children — are extremely rare, accounting for less than 10 crimes a year in the United States, Schwartz said.
“They’re all about sex and murders,” Schwartz said of popular television fare.
Far more common are fixated pedophiles, those obsessed with prepubescent children.
“A fixated pedophile is the individual we think about when we think of a child molester,” said Schwartz.
Statistically, 90 percent of child sexual abuse victims in the United States are molested by family members, friends and close acquaintances, Schwartz said, adding that more than 50 percent are molested by other children or adolescents.
“We can teach kids to be afraid of strangers,” she said, “but the guy next door that you’ve known for 20 years is the real danger.”
There is a fine line to observe, however.
“If we scare them too much, they become paranoid about all adults,” Schwartz said. “Who are they going to tell?”
When children tend to fear or distrust all adults, sexual crimes against them go unreported.
Schwartz said it is wise to teach children appropriate boundaries, personal distances and the right to privacy.
She said parents should not force their children to kiss or sit on the laps of relatives and friends, and they should teach their children that when an adult tells them “it’s our secret,” that’s a cue to come and tell their parents what is happening.
“Teach them to use their intuition and their instincts,” said Schwartz. “If it seems yucky, it probably is. Tell someone.”
The ultimate goal regarding child sexual abuse is “no more victims,” but until the goal is reached, there will be victims and offenders.
Schwartz, who serves as the director of Maine’s sex offender therapy program with the Department of Corrections, directed many of her remarks at keeping the community safe.
She urged her audience to educate themselves about sexual predators in order to offset the misinformation and the myths surrounding the subject.
Among those myths is the belief that sex offenders always repeat their crime.
“It’s not true,” Schwartz said, adding that the recidivism rate among child molesters is 15 percent across the board, including those who have received treatment and those who have not.
Another myth, she said, is that treatment doesn’t make a difference. Studies refute that and clearly show that treatment reduces recidivism rates.
The popular notion that banning sex offenders from places where children gather will significantly protect children is ill informed, Schwartz said.
“If you want to molest a child, being 2,000 feet from a school isn’t going to keep you from doing that,” she said. “Ninety-three percent occur in our homes. Places frequented by children are the safest places. The isolated kid is at risk.”
Schwartz also labeled as a myth the notion that the only way to deal with child sex offenders is to put them behind bars.
Likewise, the notion that tougher legislation is the only solution is a myth.
“I’m not suggesting we don’t incarcerate sex offenders,” she said, “but, again, don’t paint them with a broad brush.”
Schwartz offered alternatives, such as putting sex offenders on probation, GPS monitoring, strict loitering laws and more.
She said a “containment approach” works well when a team of probation officers, counselors and other support providers surround the offender with supervision.
Shunning offenders from the community is counterproductive, as offenders become unable to find housing or employment.
Schwartz said they end up homeless or in very temporary shelters and drop off the radar screen.
“If they can’t find a job, they can’t pay for therapy,” Schwartz said. “They need appropriate therapy and they need circles of support and accountability to reintegrate back into communities. That’s something communities can organize for little money.”
She said communities can identify appropriate rental housing for offenders, who often make great tenants because they come with probation officers, must not be involved with drugs and must pay their rent on time. Communities also can offer jobs and welcome offenders into a church with appropriate safeguards.
Schwartz works in Maine prisons where she directs the RULE program, a therapy program for sex offenders.
The program is based on the principles of “responsibility” for the impact of their offenses on victims and community, “understanding” their actions, “learning” new patterns of behavior and “experiencing” new skills to live in a community.
“It’s all about no more victims,” said a participant in the RULE program who had come to the talk with Schwartz.
His presence reinforced the responsibility aspect of his prison therapy program as he encountered several audience members who remain victims of sexual offenses.
The audience, too, appeared to benefit from meeting face-to-face with a sex offender.
The “Breaking the Silence” group was formed more than a year ago as victims and families coped with allegations of sexual abuse by a mentor at Liberty School in Blue Hill. Howard Evans was charged last March with unlawful sexual contact and two counts of assault.
In August, he pleaded guilty to the charges.
Several audience members said issues raised by Evans’ unlawful behavior remain unresolved.
“More needs to be done for victims to rehabilitate them back into the community,” said one woman. “It takes a lot to speak out. There is re-entry for victims as well as offenders.”
Schwartz said forming groups to support victims is an excellent community response. She praised the “Breaking the Silence” group for its work.
The local support group will meet more frequently in response to a recent arrest of a Blue Hill man on three counts of unlawful sexual contact stemming from alleged incidents with a 10-year-old girl in 2004.
“Breaking the Silence will meet every other week,” said program organizer Hugh Curran.
The group meets at the Blue Hill Congregational Church. For information, call 667-4580. |
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NACDL analysis of Adam Walsh Act
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By Alex Marbury <alexm60@fastmail.fm>
Posted on 06.12.2008
Link to this research entry: [001] |
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Comments about this Research Article should be sent to the above email address, or to the National Association of Criminal Defense Lawyers (see address and phone below):
The Scarlet Letter of the Law: The Adam Walsh Child Protection and Safety Act of 2006
National Association of Criminal Defense Lawyers
By Kyle O'Dowd
Did you see his name in the local paper?
Stole a tin of beans,
From a cut-priced grocery store.
The judge said he must pay,
So he put him on probation,
And the paper gave his name.
The Kinks, Did You See His Name?
Written by Ray Davies
From the album The Kink Kronikles
(Reprise 1972)
The protagonist in Ray Davies’ cautionary tale goes on to lose his job and take his life, illustrating the intractable conflict between punitive publicity and offender reintegration. From pillory to police blotter, methods for subjecting offenders to public humiliation tend to keep pace with evolving modes of public dissemination. It is not surprising, then, that authorities have harnessed the power of the Internet to disseminate information about lawbreakers. And given public attitudes toward sexual offenders, these individuals were destined to be the primary targets. Still, some states have been more judicious than others in their use of this mechanism, utilizing risk-assessment procedures that provide some modicum of due process and take into account individualized assessment by treatment professionals.
As frequently occurs in the criminal context, federal mandates may now effectively preempt such state diversity and innovation. On July 27, 2006, the 25th anniversary of Adam Walsh’s disappearance, the President signed the Adam Walsh Child Protection and Safety Act. The core provisions of the bill establish minimum requirements for statewide sex offender registration and notification. The law specifies the scope and duration of registration requirements, the information that must be collected and included in the states’ registries, the scope of community notification (including Internet notification), and the procedures for updating and sharing offender information. Leaving very little to the states’ discretion, the law further requires that the states provide a criminal penalty with a maximum sentence greater than one year for failure to comply with the demanding registration requirements.
Inclusion and Classification of Sex Offenders
Much of the legislative debate focused on how wide to cast the net — that is, which “sex offenses” would trigger the law’s registration and notification requirements. The term sex offense has been used to describe a broad range of conduct: consensual and nonconsensual, nonviolent and violent, petty and serious. A related and uniquely troubling debate focused on whether the law’s requirements would apply to juvenile adjudications.
The negotiators settled on a general definition (subject to two exceptions) that covers criminal offenses with an element involving sexual acts or contact. This is supplemented by a list of specified offenses against minors and specified federal offenses. Two types of consensual offenses are excluded: (1) consensual sexual conduct with an adult and (2) consensual conduct with someone at least 13 years old if the offender is not more than four years older.
NACDL, juvenile justice advocates and treatment professionals vigorously opposed measures — such as those approved by the House in an earlier version — to include juvenile adjudications in the registries. Many states exclude juvenile adjudications from their registries, a policy choice that is consistent with youth sex offenders’ responsiveness to treatment and concomitant low recidivism rates (3 to 8 percent). Advocates on the other side used well-publicized assaults to obscure these important distinctions between adult and juvenile sexual abusers. The final compromise requires registration if the youth was at least 14 years old and the offense was comparable to, or more severe than, aggravated sexual abuses (e.g., forcible rape).
While incompatible with the individualized risk assessment employed by some states, the final bill does not adopt a completely one-size-fits-all approach. Registration and notification burdens are determined based solely on the offense, but the array of covered sex offenses is divided into thee tiers based on seriousness: (1) Tier III is the most serious classification and includes felony sex offenses comparable to, or more severe than, aggravated sexual abuse, abusive sexual contact with a minor under age 13, non-parental kidnapping of a minor, and certain second offenses; (2) Tier II includes felony sex offenses against minors that are comparable to, or more severe than, inter alia, sex trafficking, solicitation of child prostitution, production or distribution of child pornography, and certain second offenses; (3) Tier I is the least serious classification and includes all other sex offenses minus the excluded consensual conduct described earlier.
State Registry and Web Site Requirements
Sex offenders must register, and keep their registration current, in their states of residence, school and work; initially, they must also register in their states of conviction. Initial registration is required before completing the prison sentence or, if not imprisoned, within three business days of being sentenced. Before release or after sentencing, states must explain the registration duties, obtain a signed statement of understanding, and ensure that the offender is registered. Herein lies the rub: there is no accommodation for mentally retarded or ill offenders who are incapable of comprehending any such “statement of understanding” or, for that matter, complying with the registration requirements.
The law sets forth a detailed list of offender and offense-related information that the states must collect and include in the registry. States must also make this information available on the Internet, except for victim identity, offender Social Security number, and arrests without convictions. Also established are a national sex offender registry and Web site, to be maintained by the Attorney General, which will include each person in the state sex offender registries.
Three critical variables — the duration of registration, the frequency of verification, and Web site eligibility — depend on the offender’s tier level (as determined by the offense). Tier I offenders must verify their registration in person every year for 15 years (reduced to 10 years for a clean record); Tier II offenders must appear every six months for 25 years without exception; Tier III offenders must appear every three months for life (reduced to 25 years for a juvenile adjudication and a clean record). Covered individuals must appear in at least one jurisdiction to update their registration within three business days of a change in name, residence, employment, or student status. State Web sites may exclude certain Tier I offenders (if the offense was not a specified one against a minor) as well as employer and school names.
Community Notification Program
In addition to this so-called passive notification, the states must implement active community notification programs. Immediately after an individual registers or updates his/her registration, the state must provide the information to various individuals and entities, including: (1) the Attorney General; (2) law enforcement agencies, schools and public housing authorities in each area where the individual resides, works, or attends school, (3) volunteer organizations having contact with minors; and (4) any organization or individual requesting notification.
Effective Date and Retroactivity
You may be wondering when these requirements will impact former and current clients. There is no exact deadline or cutoff. Participating states have until at least July 2009 to substantially implement the law’s requirements, but the ultimate deadline will depend on a number of factors.
First, the Attorney General has two years to develop and make available software that will enable the states to establish and operate the required registries, Web sites, and community notification programs. States must implement the law’s requirements within one year of that software’s availability or within three years of the law’s enactment, whichever is later.
Second, the law prescribes certain funding reductions and establishes grant programs to induce the states to comply, but some states may determine that the costs of compliance outweigh the benefits. In that case, the state’s existing sex offender laws will continue to govern.
Finally, the Attorney General must determine the extent to which the law will apply retroactively to individuals convicted before the law’s enactment or implementation. See Smith v. Doe, 538 U.S. 84 (2002) (holding that retroactive application of the Alaska Sex Offender Registration Act did not violate the ex post facto clause).
The lengthy enactment is replete with other significant provisions, some of which might merit discrete Champion articles (calling volunteer authors). The law establishes several new and enhanced sentences, including mandatory minimums, for various registration-related and sex offenses. It modifies the Federal Rules of Evidence so as to require that child pornography remain in the custody of the government or court and prohibits reproduction by defense counsel as long as reasonable access is provided. It also creates new procedures regarding federal civil commitment of sexually dangerous persons, and establishes a grant program to encourage state civil commitment laws that meet certain federal requirements.
NACDL mobilized a diversity of groups to fight these bills, and we succeeded in ameliorating some of the worst proposals. We were also successful in opposing efforts to attach unrelated crime measures to the final bill. Of course, this is no consolation to the individuals (and their innocent relatives) caught in the ever-tightening grip of sex offender regulations, or the victims of future assaults that might have been avoided if resources had been allocated more wisely. To vindicate these interests, NACDL and its members must continue to be the voices of reason and champions of one of the most unpopular causes of our time.
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National Association of Criminal Defense Lawyers (NACDL)
1660 L St., NW, 12th Floor, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org
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