Growing Media and Legal Attention to Sex Offenders: More Safety or More Injustice
Originally published in â€œThe Journal of the Institute of Justice & International Studies,” Number 7, 2007
164 The Journal of the Institute of Justice & International Studies
Growing Media and Legal Attention to Sex Offenders: More Safety or More Injustice
St. Francis College
Proposed new legislation addressed at policing sex offenders continues to spread throughout the United States. The fear of releasing convicted sex offenders from prison back into society without supervision has captured the attention of the state and public. The mainstream media, together with politicians in both parties, is pressing for these measures and the public generally supports these efforts. Politicians are aware that when a paroled offender commits a crime, particularly a paroled sex offender, the media blames legislators responsible for their release. Elected officials seen as “soft on perverts” will inevitably pay a political price. This paper provides evidence that the United States is in the grip of a media fixation and collective moral panic about sex offenders, and argues that many of the new legal remedies emerging from false fears, false assumptions, and hysteria are ineffective, costly, and an affront to civil liberties. Most troublingly, this context sets the stage for future miscarriages of justice, as individuals (including juveniles) accused of even minor sex crimes are subject to a rush to judgment, an inability to get a fair trial, and harsh, long-term penalties that can be disproportionate to the severity of the crime.
Growing Media and Legal Attention to Sex Offenders: More Safety or More Injustice
Research Questions, Hypotheses, and Methods
This paper asks the research questions of whether media coverage of sex offenses is excessive relative to their incidence, and whether newly enacted sex offender legislation is politically motivated rather than data-driven. To address the first research question, I examine the frequency of major newspaper coverage of sex offenders in the context of incident-based and self-reported sex offenses over the past two decades. Using the LexisNexis (2007) news database, I examine the frequency of news headlines with the terms “sex offender” and “sex predator” between 1996 and 2006. In order to analyze the rate trends of both reports and self-reports of rape, sexual assault, and child sexual abuse, I present crime statistics and survey data from the Federal Bureau of Investigation, the Bureau of Justice Statistics, and the Crimes against Children Research Center.
To address the second research question, I analyze the policies and the accompanying political context of legal remedies aimed at addressing sex offenses and punishing sex offenders. The legal initiatives studied in this paper are state civil commitment laws, focusing on the debate surrounding the passage of the 2007 New York law, and the 2006 federal Adam Walsh Act requiring community notification and website registration for all types of sex offenders. This paper hypothesizes that an intensified and increasing focus by the media allows for the easy passage of problematic new legislation that challenges basic civil liberties and democratic principles as well as sound criminal justice research about sex offenders. This paper seeks to assess and disaggregate the complex relationship between political interests and research findings and data about sex offenders, public safety, and civil rights.
History and Context of Sex Offender Hysteria
A number of journalists and academics have recognized that sex offenders are the victims of hysteria in the United States. Journalist Debbie Nathan has detailed a concerning pattern of wrongful convictions for sex crimes against children during the 1980s hysteria about sexual abuse in daycare centers. She explains that the current ideology of the child protection movement emerged around 1970 because of fear that children were at increasing risk for perversity and abuse:
In 1970, The New York Times reported that the “plump red apple that Junior gets from a kindly old woman down the block…may have a razor blade hidden inside.” By 1972, many kids were not allowed to trick-or-treat; three years later Newsweek warned that several children were dead and hundreds more injured by viciously doctored Halloween candy. A few years later, kiddie porn was the new threat. In 1977, NBC reported that “as many as two million American youngsters are involved in the fast-growing, multi-million dollar child pornography business…” and “police say the number of boy prostitutes may be as high as half a million” (some 10 percent of all male adolescents in the entire country). Then, in the early 1980s, following the New York City disappearance of Etan Patz, the kidnapping and slaying of Adam Walsh, and the murders of 28 Atlanta schoolchildren, the missing children’s movement emerged. Crusaders began describing a stranger abduction problem of astonishing proportion: U.S. Representative Paul Simon offered House members a “conservative estimate…50,000 children abducted by strangers annually,” and a leading child-search organization said 5000 of these children were murdered each year. (Nathan, 1990, p. 156).
Nathan points out that research and data have undermined these reports–there was no threat from Halloween candy (only one child was ever killed by Halloween candy, and that was by his own father), little threat of kiddie-porn (even before the 1978 federal law making it illegal, between 5000 and 7000 kids were involved in the industry–after 1978, the number dropped even more dramatically), the majority of missing children are runaways and throwaways and most kidnappings are committed by a non-custodial parent. Nathan notes that despite the reality of these statistics, “[M]uch of the American public is convinced that molesters, sadists, kidnappers, and pornographers are major threats to our kids” (Nathan, 1990).
Since 1990, fears and anxieties about child safety and sex offenders have continued to grip the public imagination and have been closely followed in the media. One of the most detailed and closest socio-historical analyses of the subject is Moral Panic: Changing Concepts of the Child Molester in Modern America, by Philip Jenkins (1998). A professor of history and religious studies at Pennsylvania State University, Jenkins argues that a paralyzing, exaggerated fear of pedophiles has surfaced in the last decade, and places it in a more lengthy social and historical context, noting that
images of the sex offender have changed dramatically and cyclically over time…originating in the Progressive era, the imagery of the malignant sex fiend reached new heights after World War II, only to be succeeded by a liberal model over the next quarter century…We can see that the stereotypical sex offender who provided a nightmare image in the 1940s had become a semi-humorous figure two or three decades later (1998, p. 2-3).
Jenkins also discusses how in the 1960s, sex offenders were viewed as mild-mannered misfits and losers rather than cause for profound terror and fear.
Other theorists, such as John Pratt, also assert that since the 1970s, in the U.S. and other English-speaking countries, child sexual abuse emerged as a serious social problem and a “normative feature in the lives of many” rather than a series of small and isolated incidents (Pratt, 2005, p. 263). Pratt (2005) points out that there are a number of significant changes contributing to the construction of child sexual abuse as a profound social problem, including a greater sense of long-term damage resulting from abuse, new types of abuse, professionals defining and treating the problem, and a sense that it can happen to any child, at any place, and at any time. Pratt (2005) concludes that the primary reason that child sexual abuse is viewed as being so serious and pervasive in the current period is because of a changing perception of children and purity in an culture of fear, writing, “children have come to have an exceptional value which continually seems under threat from a series of dangers triggered by the fears and insecurities characteristic of the age of anxiety” (p. 266).
Jenkins (1998) explains that waves of hysteria and irrationality concerning child molesters work to the benefit of politicians, who reap rewards when they are perceived to be fighting an evil and widespread threat. Legislation, he argues, also reflects shifting public attitudes about sex offenders. He points out that extreme laws were passed during earlier panics, noting that legislation passed during panic about sex offenders is likely to prompt Constitutional concerns and backlash:
Once the initial furor passed, numerous cases demonstrated the absurd or unjust effects of the laws. Mounting opposition from legal, judicial, and libertarian sources resulted in the acts being overturned or becoming inoperative. The panic atmosphere surrounding the passage of the laws itself produced a reaction, and rhetoric that once sounded plausible came to seem overblown even ludicrous (Jenkins, 1998, p. 12).
I examine here how media coverage of sex offenses relates to the most recent cycle of state and federal sex offender laws, and attempt to disaggregate the extent to which these new laws are the result of moral panic and political opportunism, as in earlier periods, or if they are rooted in the realities of sex offender research.
Media Coverage of Sex Offenders and Rates of Sex Offenses
This paper hypothesizes that there has been an increase in media coverage of sex offenders during the past decade unrelated to a corresponding increase in sex offenses. An analysis of news headlines from the LexisNexis database shows that media coverage of sex offenders and sex offenses has been increasing since the early 1990s and shows no sign of decline. The data in Table 1 show that news stories with “sex offender” or “sexual predator” in the title increased seven-fold between 1991 and 2006. These terms indicate that the news article most likely relates to either a crime or law relating to a sex offender or sexual predator, and, additionally, because these terms can prompt fear and panic because they are associated with predatory behavior. An analysis of these particular terms also relates to the hypothesis that the public sees these terms in newspapers with increasing frequency, and in turn becomes convinced that sex offenders and sexual predators are a growing threat.
Frequency of “sexual predator” and “sex offender” in headlines, lead paragraphs, or terms of U.S. newspapers, 1991—2006
|Year||Frequency of “Sexual Predator”||Frequency of “Sex Offender”|
|Source: LexisNexis, 2007.|
This analysis finds that the number of all news stories with the term “sex offender” or “sexual predator” in the headline, lead paragraph or terms in U.S. newspapers increased from 107 in 1991 to 5,006 (a factor of almost 50) in 2006. Table 1 also shows that the number of all news stories with the term “sexual predator” in the headline have also increased substantially, growing from 536 to 15,558 (or thirty times) in 2006.
This table indicates that stories about sex offenders and sexual predators have been increasing substantially since 1991. One obvious explanation for the dramatic increase in media coverage in sex offenders and sexual predators is a corresponding increase in instances of sex offenses. However, Table 2 illustrates that survey and incident-based reports of rape and child sexual abuse declined significantly during this same period.
Columns 1 and 2 in Table 2 show that rates of rape, according to both official and self-report data, declined between 1990 and 2005 (self-report and incident-based data for rape is only available through 2005). Self-reports of rape decreased from 1.7 per 1000 individuals 12 and over to .5 per 1000 (a decrease of over 30%), and reported instances of forcible rape decreased from 41.2 per 100,000 individuals of all ages to 31.7 (a decrease of over 25%) (Bureau of Justice Statistics, 2007). Column 3 shows that rates of child sexual abuse decreased from 2.3 per 1,000 children to 1.2 (a decrease of almost 50%) between 1991 and 2003 (rates of child sexual abuse in this report are reported only through 2003) (Crimes Against Children Research Center, 2004).
Rates of sex offenses in the United States, 1991—2005
|Year||Self-Reports of Rape (Rate per 1,000, age 12 and over)||Reported Incidents of Rape (Rate per 100,000, all ages)||Reported Incidents of Child Sexual Abuse (Rate per 1,000 children)|
|Source Bureau of Justice Statistics, 2007; Crimes Against Children Research Center, 2004.|
The increasing frequency of news stories and legislation relating to sex offenders, and the corresponding decrease in sex offenses, makes it clear that the national news media has increasingly focused on this topic for reasons other than an increase in incidents. News stories are thus not a response to more sex offenses but rather to increasing public interest (because stories about sex offenders are interesting or titillating) and/or to increasing political or legislative attention. The relationship is cyclical, because political figures respond to the media interest in sex offenders with new and innovative legal responses, and at the same time, the media responds to legal initiatives with further media coverage.
Increasing Legislative and Political Attention to Sex Offenders
As media coverage of sex offenders has increased and sex offense incidents have decreased, advocates have pushed for new and more extreme policy responses and new and extreme statements and assertions about sex offenders. Advocates such as John Walsh, the father of abducted and murdered child Adam Walsh and the founder of the National Center for Missing and Exploited Children, has made passing sex offender laws his life mission. In July 2006, the Senate passed the Adam Walsh Child Protection and Safety Act. George Bush held a press conference to announce the bill and appeared with John Walsh. The bill creates a national sex offender registry closing loopholes in the current system. Walsh has been an articulate and outspoken advocate of increasing legislation aimed at sex offenders. He has said he believes all sex offenders should be put in prison for life without the possibility of parole. In 2005, Walsh issued a press release urging legislators to pass new sex offender legislation. It warned that, “legislators must revamp our current laws in order to provide a more comprehensive way of tracking down the hundreds of thousands of child sexual predators who live among us” (Walsh, 2005, ¶ 3). Statements like this suggest that predatory sex offenders saturate our communities, and that the public is at imminent risk without new and tough legislation.
Currently, many states are extremely aggressive in their efforts to monitor those convicted of any type of sex offense and have initiated programs such as global tracking systems to locate sex offenders on parole or probation. Residence restrictions for sex offenders are on the books in many states and cities. In Florida, legislation requires sex offenders seeking emergency shelter during a hurricane to notify shelter operators of their sex-crime history. The rhetoric that lawmakers and advocates use to promote these laws is frightening. They imply that sex offender registries, public notification, and civil commitment legislation will directly result in a decrease in violent sex offenses. In Texas, some elected officials, including the current Republican Lieutenant Governor, have proposed the death penalty for repeat sex offenders. A Texas housing developer is building “sex offender free subdivisions, and a national website lists homes for sale that have no registered sex offenders living within a half-mile radius” (Axtman, 2006, p. 1). A proposed law would require sex offenders to have green florescent license plates (Reuters, 2007).
Nicholas Lehmann notes that popular conservative talk-show host Bill O’Reilly routinely devotes entire programs to the crimes of sex offenders-or those who are not tough enough on them. Most statements made by politicians or advocates about extreme sex offender policies are presented without criticism or question, though occasionally the rhetoric reaches a point where even the mainstream media cannot help but respond. In July 2006, according to the Washington Post, John Walsh told a FOX-TV news photographer at a gathering of TV critics that “people who molest children should have chips embedded in the rectum that would explode if they violate their parole” (de Moraes, 2006, ¶ 1). The author of the piece observes that when Walsh said this, “a couple dozen speechless TV critics looked on,” and that the FOX-TV news photographer
was relieved of his responsibilities for the rest of the day for monopolizing Walsh’s onstage time with their interesting exchange about child-tracking technology, sex-offender-tracking technology—“pervert alert,” the photographer called it—and a comparison of repeat molesters to rabid dogs that need to be put down (de Moraes, 2006, ¶ 4).
Statistics about sex offenders are often exaggerated by those in public office to gain support for new laws, and terms such as “growing problem” are used to suggest that the problem is worsening. Former Attorney General Alberto Gonzalez announced a new policy aimed at targeting internet sex predators. He claimed that 50,000 child sex predators are online at any given moment—a statistic that cannot be confirmed or documented, yet which is commonly used: 50,000 was the same number cited as the number of children abducted by strangers each year in the 1970s. There is evidence that the number of children being solicited online is declining (McCollam, 2007).
The Politics of a New York State Initiative
In New York State, local and state legislators have responded to the national climate of sex offender hysteria by proposing numerous new legal initiatives targeting sex offenders, including the passage of controversial civil commitment legislation, approved by the state legislature in March 2007. Currently, 19 state legislatures and the District of Columbia have civil commitment laws for post-prison confinement of sex offenders. These laws are relatively new: the first civil commitment law was passed in 1990, in Washington State. The impetus for many of these laws was the inability of parole boards to detain sex offenders once they served full sentences, even if the offenders were deemed by psychologists and therapists as being “highly likely” to re-offend. New York State legislators passed a bill similar to the laws existing in these other states. Political officials in New York and elsewhere have been making sex offender legislation a key focus of criminal justice platforms, and versions of a New York civil commitment law for sex offenders have been proposed since 1993.
Like many laws rooted in the victim rights movement, the most recent push for civil commitment legislation in New York was partially motivated by a high-profile, extremely disturbing violent crime. A convicted rapist, released after serving his full sentence, murdered a woman in a mall parking garage in Westchester in June 2005. He claimed to have killed the woman because she was white, and he was subsequently convicted of murder as a hate-crime. This incident generated enormous media coverage for understandable reasons, including the involvement of a paroled, racist defendant with obvious mental disorders. The New York civil commitment bill is popularly called “Connie’s Law,” after the woman murdered in this incident, and advocates for such laws cited her murder as evidence of the immediate need for civil commitment legislation.
There have been other substantial efforts in New York to promote additional legislation designed to limit sexual re-offenses. For example, in July 2006, the Governor’s office announced that henceforth, Level II sex offenders (in addition to those categorized in the higher Level III category) will appear on the searchable NYS sex offender registry website. This website allows those using it to find out if they are living near anyone convicted of a serious sex offense. Level I offenders, classified at low-risk for re-offense, must also register for a period of 20 years and are subject to public-notification provisions, but they are not currently searchable on the NYS Sex Offender Registry website (although one can learn details about all levels of sex offenders via a 1-800 number posted on the website). Additionally, local law enforcement agencies in New York State are entitled (though not required) to release information on sex offenders of all levels (including Level I) residing in the community to “entities with vulnerable populations related to the nature of the offense” (New York State Division of Criminal Justice Services, p.1). In spite of the already strict laws in New York State regarding policies for convicted sex offenders, and policies that regulate every aspect of the offender’s post-carceral life, politicians in New York recently passed a civil commitment bill. Governor Spitzer, a Democrat, claims the New York bill will become a national model, because it includes mental health treatment and supervised release for sex offenders. However, as a New York Times examination of civil commitment policies noted, following the passage of the New York bill, that most such laws emerge after high-profile crimes, there is little evidence that the programs work, that they apply to only the most violent offenders, or that they are cost-effective (Davey & Goodnough, 2007).
Political officials and candidates are often outspoken on the issue of sex-offender legislation. In an analysis of the politicization of sex crimes, Ingrid Drake (2007) observes that, “it is hard to find a campaign anywhere—for Attorney General, Senate, or School Board—where one candidate is not pronouncing that another candidate has been too soft on pedophiles” (¶ 2). Jeanne Pirro, for example, is a New York politician who has focused her career and her 2006 campaign for Attorney General on the problem of sex offenders, emphasizing the need for increased laws to catch and convict them. She cites the protection of innocent victims as her main concern. As one New York political blogger, Jason Horowitz (2007) notes, “Jeanine Pirro talks a lot, and we mean a lot, about all the sex offenders and pedophiles she locked up in her days as Westchester District Attorney” (¶ 1). On her campaign website, a statement of her qualifications highlighted her role as a fighter for civil commitment legislation in Albany, noting that the legislation will control “violent sexual predators predisposed to molest, rape, or kill again”, and states that she has been “an unrelenting proponent of civil confinement legislation” (Pirro, 2006). In September, 2006, Pirro referred to civil confinement for sex offenders as “the most important public safety issue of our time.” Asked whether it is more important than terrorism, she replied, “Terrorism, obviously, is an overwhelmingly important issue for safety in New York. But as it concerns families, there isn’t a family that I come across that isn’t concerned about children going to school and possibly being abducted or confronting a sexual predator” (Cooper, 2006, ¶ 1).
Comments by former New York Governor Pataki also reveal the passion and rhetoric underlying sex-offender legislation. After his successful extension of the sex offender registration laws, he noted:
…we must do even more to give every parent and family the tools to protect their children and families. This most recent expansion is certainly another step in the right direction, but there is still much work to be done. We have strengthened Megan’s Law significantly, but I would still like to see every single sex offender searchable on the Internet, so that parents can have the peace of mind to find out if anyone who has been designated a sex offender lives in their area (Pataki, 2006, ¶ 3).
Chauncey Parker, former New York State Director of Criminal Justice Services, uses the same argument when he asks:
Are we supposed to wait and see if they go back and molest another child and then put them back into prison? I think government needs to have a reasonable response in these circumstances,” and “If there is a sexually violent predator who is such a risk to others that they are going to molest or rape again, what do the people expect government to do (Vlahos, 2006, ¶ 9).
Headlines also encourage an attitude of fear and hysteria, using words like “perverts” and “predators” to characterize sex offenders. Newsday, a New York paper primarily serving Long Island’s Nassau County, calls the civil commitment program an obviously sound policy requiring little analysis, and like other papers uses the incendiary term “sexual predator” to describe all types of sex offenses. Headlines in a local paper announce: “NY is putting 8,000 more pervs on the web.” The story explains:
New Yorkers will be able to get photos and home addresses of thousands more Megan’s Law sex fiends on the Internet as a result of a deal struck yesterday by lawmakers. The legislation, passed last night as lawmakers scrambled to close this year’s session, adds more than 8,000 “moderate-risk” perverts. Another key feature of the measure is that police will now be able to tell neighbors about “low risk” creeps – branded as Level 1s – living near them (Mahoney, 2006, ¶ 1 – 3).
In other states, local media also characterize sex offenders as “pervs;” for example, a Boston Herald headline similarly announced “Lawmaker’s bill to better track pervs languishes” (Heslan, 2006, p. 18).
Facts and Research about Sex Offenders and Sex Offender Treatment
An immediately troubling aspect of all legislative bills aimed at decreasing sex offenses is the dearth of research or data to support their suppositions. The laws cover all varieties of sex offenders, including sex offenders accused of non-contact crimes (e.g. viewing pornography or engaging in sexually explicit conversations on the internet), consensual sex between minors, and statutory rape. Statutes implicitly assume that all sex offenses are the same, and registries and websites frequently do not provide specific details about offenses. The provisions of the Adam Walsh Act apply to offenders aged 14 and over, meaning that sex offenders who committed their crimes as minors are also subject to lifetime consequences. Sex offenses committed by youths are a growing concern in the United States, yet these young offenders often have unique needs and can be quite responsive to treatment. In fact, the majority of those who sexually abuse children are juveniles and individuals under 30 (Chaffin, Bonner, & Pierce, 2003). However, these new laws ignore their special status as minors, and could place them in facilities, for lengthy periods, with the most violent adult offenders. In states such as Texas, the crime that used to be called statutory rape, and often involved consensual sex between a minor and a young adult, is now called “sexual assault of a child” and is punished by 2 to 20 years and lifetime registration as a sex offender.
Most research shows that recidivism rates for sex offenders vary from 3% to 13%, rates that are much lower than for most other offenses (Lotke, 2006). The majority of sex offender legislation focuses on limiting so-called “stranger danger,” yet most perpetrators of child sexual abuse are not strangers to their victims. Studies demonstrate that the percentage of strangers convicted of sex offenses against juveniles is only 7% per year; thus, over 90% of juvenile victims know their abusers (U.S. Department of Justice, 2000).
Most of the new policies are also expensive, and one civil commitment proposal in New York includes the need to build a $130-million, 500-bed specialized, secure facility upstate to house sex offenders after release from prison. On the other hand, intensive supervision and community treatment programs, shown to be effective ways to treat and manage sex offenders, cost only $5,000 to $15,000 per year. Further, research shows that sex offenders can be treated and rehabilitated, but that leaving them in costly mental health facilities for long periods is not efficient mental health treatment. In Virginia, not one civilly committed offender has ever been released, although each inmate goes through an annual review process—suggesting that treatment and rehabilitation are not the goal of civil confinement programs. Despite evidence that sex offender treatment can result in rehabilitation without high costs, civil confinement programs focus not on the potential for treatment and cure, but merely on permanent removal from society. One New York-based coalition, opposing civil commitment, including the New York Civil Liberties Union (NYCLU) notes that the legislation “will lead to a flawed approach to preventing sex crimes, the NYCLU argues, but would embrace as a matter of public policy the mistaken idea that individuals with psychiatric disabilities are sexually dangerous” (NYCLU, 2007, ¶ 4).
Jonathan Gradess, Executive Director of the New York State Defenders Association, points out that the civil commitment bill “threatens an enormous diversion of state funds while undermining more successful proven techniques to protect public safety” (NYCLU, 2006, ¶ 8). The New York City Bar Association also issued a statement questioning the Senate version of the bill, noting that it appears to have been development without “careful legal analysis,” warning “politicians who legislate only with the sensational TV news stories in mind will err in locking away individuals with no mental illness or propensity for violence” (Plevan, 2006, ¶ 11).
Legislation often focuses on keeping convicted sex offenders away from schools and playgrounds, even though one important study found that residence restrictions do not prevent crimes or increase public safety (Levenson and Cotter, 2005). Judith Levine, a journalist, explains in an editorial responding to Vermont’s sex offender policies, “Offender websites and community notification of neighbors, landlords and employers, coupled with requirements that registrants report their every move to the police, do the opposite. The U.S. Justice Department names ‘lifestyle instability’ as a big contributor to re-offending.” Levine quotes Robert Longo, a therapist and former director of Vermont’s Safer Society Program, who points out, “You ban somebody from the community, he has no friends, he feels bad about himself, and you reinforce the very problems that contribute to the sex abuse behavior in the first place. You make him a better sex offender.” Levine notes that Vermont’s low recidivism rate is due to current policies involving sex offender treatment rather to harsh prison sentences (Levine, 2006, ¶ 19). Currently, New York has the fewest roadblocks of any state for parolees, but the existing re-entry network for offenders will be challenged by increases in post-release restrictions.
Grassroots groups working to prevent child sex abuse are also critical of draconian legislation aimed at sex offenders. These groups, according to an analysis by Ingrid Drake (2006), often focus on community organizing and education campaigns to encourage prevention and reporting of child sex offenses. They find these approaches more effective than criminal justice responses. Drake (2006) notes that in Virginia, a $6 million initiative by the Attorney General will fund mandatory minimum sentences, GPS technology for offender monitoring, improvements in the online sex offender database, and residence restrictions—yet the initiative includes no funding for community-based and grassroots organizations working on sex offense prevention, or for public education. Additionally, Drake (2006) interviewed advocates who worry that increasing criminalization decreases the likelihood of reporting, because it is most often friends or family members who discover (and experience) sex abuse. Thus, they fear that if they report sex abuse will their loved ones will receive long prison terms rather than treatment and rehabilitation .
Former Governor Pataki was a main proponent of much New York sex-offender legislation; he regularly noted that New York achieved enormous reductions in crime since his taking office, and, that New York was the “safest large state in the nation.” In 2007, data shows fewer sex offenders per capita in New York than in Wisconsin (National Center for Missing and Exploited Children, 2007), suggesting that current treatment programs and criminal justice policies in New York are working.
Currently, New York and many other states offer no treatment to sex offenders in prison. The American Psychiatric Association recommends in-prison treatment for sex offenders suffering from a diagnosable sexual disorder, because research shows that treatment is linked to lower recidivism rates. For politicians concerned about recidivism rates for sex offenders, providing funding for in-prison psychiatric treatment policies makes sense. However, advocating funding for mental health or social service treatment of any kind for prisoners elicits negative responses from the public, who view prisoners as unworthy of limited public funds.
Civil Liberties and New Sex Offender Legislation
Profound Constitutional concerns also emerge from civil commitment, long-term and lifetime registration, and community notification laws. Most obviously, these laws mandate control of sex offenders after they have served full prison sentences. This undermines core principles of the jury, trial, and sentencing system, because it reassesses punishment meted out in an earlier and finalized court decision. Civil commitment, registration, and community notification laws suggest that sentences given to sex offenders are lenient, thoughtless, and qualitatively different from sentences given to other offenders. In their analysis of pending New York State civil commitment legislation, Katsavdakis and colleagues (2006) call for legislators to focus on existing research instead of pandering to politics and fear. They note that political rhetoric and scare tactics have resulted in the passage of problematic legislation such as the New York Rockefeller Drug Laws, explaining that these laws,
first enacted in 1973 ostensibly to target drug dealing kingpins. . . ensnared low level sellers/users and paved the way for a bevy of other mandatory sentences for other crimes. Despite evidence of the efficacy of drug treatment, and despite a shift in public opinion that supported treatment over incarceration, it was not until 2004, that even modest reform of these harsh and ineffective laws were enacted. The lesson of the Rockefeller Drug Laws—the relative ease of enacting these laws and the incredible challenge in undoing them—dictates that caution be used in the creation of civil commitment and other draconian “one size fits all” approaches to people who commit sex offenses in New York State (Katsavdakis, Weissman, & Rosenthal, 2006, p. 5).
The most problematic effect of these laws is their undermining of fundamental civil liberties. In 2002, the Supreme Court ruled that in order to justify civil commitment, states must prove that offenders remain dangerous and likely to re-offend, and that they also have a psychological diagnosis indicating that a “serious difficulty in controlling behavior” contributed to the original crime and persists (Kansas v. Crane, 2002). This Constitutional limit on civil commitment places the burden on the states, and critics of the ruling note that this gives the states more power, enabling them to freely pass civil commitment legislation. Legal scholars argue that this ruling is problematic because it implies that the person is not responsible for his or her behavior because he or she is mentally ill, and, as Ellen Byers notes, “the court has not explained why psychiatric evidence, which is distrusted in general, should serve as a justification for the death penalty or preventive commitment when there is abundant evidence of its unreliability” (Byers, 2004, p. 460).
Others have argued that these laws place the defendant in double jeopardy and violate due process, since the defendant has already completed state-sanctioned punishment for the very crime that is now the justification for civil commitment (Price, 2005).
Even community-notification laws are considered by some legal analysts to be cruel and unusual punishment because they single out sex offenders for stigma and shame. Those convicted of arson, manslaughter, and drug trafficking do not trigger community notification, even though recidivism rates for those crimes are significantly higher than for sexual offenses. Again, though, these laws are directed at sex offenders, and thus do not prompt criticism or close analysis, arguably because the public views these criminals with fear and revulsion that may not be justified by the facts. In one case, an 18-year-old convicted of second-degree rape after having sex with a 13-year-old girl (whom he believed to be 16), now must register as a child sex offender for life and is subject to community-notification laws. Charles Carpenter (2006) uses this case to highlight the unconstitutionality of community-notification laws. He notes that a plan to protect the community in fact undermines due process and functions as a “punitive scheme” that is “designed to shame.”
Mental-health treatment can prevent recidivism, and advocates for therapeutic jurisprudence argue that treating sex offenders in specialized courts or outpatient programs can be immensely effective and Constitutionally sound. Other alternative policy options include specialized sex offender re-entry courts, which can evaluate risk, manage treatment, and closely monitor sex offenders upon release. These courts are significantly cheaper than inpatient psychiatric facilities (La Fond & Winnick, 2003). Other studies have found that cognitive-behavioral treatment reduces sex offender recidivism (Hanson, Gordon, Harris, Marques, Murphy, Quinsey, & Seto, 2002; Losel & Schmucker, 2005). Delivering longer minimum sentences, or lifetime probation or parole, are obvious ways to avoid the dilemmas created by civil-commitment laws.
Civil policies aimed at sex offenders are emerging in other states, suggesting an unprecedented crossover of criminal and civil punishment. In one particularly disturbing policy development, a 2006 Ohio law creates a “civil registry” for sex offenders, allowing suspected sex offenders to be publicly identified and tracked even if there are no criminal charges involved (Coolidge, 2006). This law passed in the Ohio State Legislature with almost no national media coverage or public outrage. The law allows attorneys or alleged victims to seek to place an alleged offender on the registry, and present evidence and testimony to a judge. If the judge determines beyond a preponderance of the evidence that abuse happened (rather than beyond a reasonable doubt, as in a criminal case), the alleged offender is placed on the civil registry, which lists the abuser’s name, address, and photograph online. The alleged offender is also subject to the same registration, notification and residency restrictions of sex offender with a criminal conviction. An alleged sex offender is subject to placement on the civil registry even if the statute of limitations for facing charges or a lawsuit has passed.
Most victims do not report sex offenses, and most sex offenders never wind up in prison. Extreme policies like the Adam Walsh Act and civil commitment, which are very costly, discourage the exploration or implementation of interventions aimed at detecting and preventing sexual abuse. Such policies also allow politicians to ignore other social policies that might decrease incidents of sexual abuse, because they are already invested in supporting expensive, dramatic initiatives that seem comprehensive and hard-hitting. As noted earlier, it can be difficult and often impossible to overturn legislation passed during times of moral panic, even when it is viewed by the majority as being absurd and unjust. The new laws are particularly frightening in light of the legal realities of increasing restrictions and time limits for defendants to appeal convictions, implemented in recent decades with the intent to decrease lengthy death penalty appeals.
Civil libertarians are currently overwhelmed with a range of issues, including the unlawful detainment of prisoners at Guantánamo, the unauthorized wire-tapping of American citizens, the P.A.T.R.I.O.T. Act’s revision of accepted Constitutional limitations, the President’s arrogation of new executive privileges, and so on. In comparison, the rights of convicted sex offenders, a thoroughly despised group, are not of great concern. However, psychiatric detention bears a close resemblance to preventive detention. Both originate in the flawed idea that we can calculate with reasonable confidence the probability that someone will commit a crime in the future. Leaving aside the ethical and legal problems of detaining people for crimes they might commit, there are no reliable methods for determining future criminality.
The mainstream media considers sex offenders and suspected terrorists as unworthy of rational response or individual consideration, and both are similarly subject to violations of due process and civil rights. Those who defend the rights of these two populations are often dismissed as traitors, perverts, un-American, and anti-family. Yet protecting the rights of the accused is the very basis of the Constitution and the rule of law.
In some cases, sex offender registries have encouraged violence—in Maine in 2006, a troubled young man used the registry to find the addresses of convicted sex offenders, then shot and killed two in their homes. One of the men shot was a 17-year-old who had a relationship with his 15-year-old girlfriend, which had resulted in his publication as a sex offender. Among prison populations, sex offenders are often kept in protective custody because they are at high risk of being attacked by other inmates. Sex offenders are aware that being a murderer is a much less threatening and offensive crime among prison populations. In a Massachusetts prison in 2003, defrocked priest John J. Geoghan, an elderly convicted child molester, was beaten to death by another inmate while in protective custody (Butterfield, 2003). Such cases highlight the unwillingness of the state to protect this population.
Politicians are paralyzed by the media hysteria surrounding sex offenders, and cannot question any initiatives that appear aimed at protecting the public from these “monsters.” Only a small number of media outlets, including The New York Times, have suggested that these policies are Constitutionally questionable and of little or no real benefit. It is thus crucial for criminologists, social scientists, researchers and legal scholars to focus on the question of how best to protect the public from sex offenders while respecting Constitutional rights. The relentless coverage of sex offenders creates conditions ripe for false allegations, because the American public believes that violent and predatory sex offenders lurk on every corner. An ongoing study funded by the National Institute of Justice, one of the few ever conducted on the impact of community-notification, unsurprisingly finds that the decline of sex offenses in New Jersey started in 1991, three years before the much-heralded passage of the very expensive and widely adopted community-notification policy also known as Megan’s Law (Wood, 1994). It will be interesting to see if this recent study (still unpublished) will deter politicians from proposing new and more comprehensive community-notification law policies, even in the face of evidence that they do not lower the incidence of sex offenses, but instead scare any parent who receives notice that a sex offender lives nearby.
The question of public safety cannot overwhelm the right to due process. The examination of policies aimed at sex offenders must not elicit rage, hysteria, and condemnation. Only through research, analysis, and debate can sound criminal justice policy emerge. Fear is an effective but dangerous tool used by the media and politicians to win audiences, readers and votes. Yet researchers and analysts must be able to ask and answer questions without fear of retribution. Our collective goal is to stop the persistent and widespread social problem of sexual abuse. It is therefore crucial to study what works and what does not, and to make policy recommendations and enact laws based on sound data and research.
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© 2007 Emily Horowitz. Published here by permission
The Journal of the Institute of Justice & International Studies Vol 7