«Sex Offender Laws Failed Policies, New Directions ■ Richard G. Wright, PhD NEW YORK Contents Contributors..................... ...»
Sex Offender Laws
■ Richard G. Wright, PhD
Part I - Overview
Chapter 1 Introduction: The Failure of Sex Offender
Policies....................................... 1 Richard G. Wright Chapter 2 The Problem of Sexual Assault.................. 17 Francis M. Williams Chapter 3 A Brief History of Major Sex Offender Laws...... 65 Karen J. Terry & Alissa R. Ackerman
Chapter 4 The Politics of Sex Offender Policies:
An Interview with Patricia Wetterling............ 99 Patricia Wetterling & Richard G. Wright Part II - Sex Offender Policies Chapter 5 Internet Sex Stings........................... 115 Richard G. Wright Chapter 6 Sex Offenders, Mandatory HIV Testing, and Intentional Transmission.................. 159 Cheryl Radeloff & Erica Carnes vi vii Contents Chapter 7 Sex Offender Registration and Community Notification...................... 211 Lisa L. Sample & Mary K. Evans Chapter 8 GPS Monitoring of Sex Offenders............... 243 Michelle L. Meloy & Shareda Coleman Chapter 9 Sex Offender Residence Restrictions............ 267 Jill Levenson Chapter 10 Chemical and Surgical Castration............... 291 Charles Scott, MD, & Elena del Busto, MD Chapter 11 The Civil Commitment of Sexual Predators: A Policy Review..................... 339 Andrew J. Harris Chapter 12 The Death Penalty............................ 373 Corey Rayburn Yung Part III - Policy Alternatives Chapter 13 Leaders in Sex Offender Research and Policy..... 397 Alissa R. Ackerman & Karen J. Terry Chapter 14 The Containment Approach to Managing Sex Offenders..........
The right to control one’s body is one of the most fundamental, meaningful, and important human rights. How to respond when that right is violated by force, coercion, or threats is one of the most critical decisions that a government must make.
In the United States, the sexual violation of children, adolescents, or adults is an all-too-common experience. Millions of women, children, and men have been sexually violated at some point in time. Yet, American policy responses to prevent or address sexual offending, particularly those enacted within the last twenty years, have largely failed. They have
not done any of the following:
■ reduced sex offenders’ recidivism rates;
■ provided safety, healing, or support for victims;
■ reflected the scientific research on sexual victimization, offending, and risk; or ■ provided successful strategies for prevention.
The central thesis of this work is that these policies have failed by choice. Policymakers choose to focus on the most heinous sex offenders while ignoring the most common sexual threats that people face. Policymakers are disproportionately influenced by isolated, high-profile cases of sexual assault committed by strangers, to the neglect of the everyday sexual violence committed by known and familiar family, friends, and acquaintances. This choice gives lawmakers simple and clear political benefits but overall has made the public less safe.
Misguided Policies As is documented throughout this book, policymakers have chosen to allow sex offender laws to be driven by the demonization of offenders, devastating grief experienced by a subset of victims, exaggerated claims by law enforcement, and media depictions of the most extreme and heinous sexual assaults. As a result of this choice, a tremendously expensive criminal justice apparatus has been created, victims have been deprived of resources that could aid their recovery, and efforts to treat and manage offenders have been undermined.
A dominant factor in the passage of these inefficacious sex offender laws is the impact of the tragic, high-profile, stranger-predator sexual assault. Thirty years’ worth of research has shown that sexual victimization occurs primarily in the context of a preexisting relationship. This research, described thoroughly in chapter 2, shows that the greatest risk of sexual violation comes from one’s partner, mother, father, sister, brother, family member, or family friend. As horrific as stranger-predator assaults are, they are far less common than violence committed by an intimate assailant. To the detriment of society, stranger-predator assaults are the guiding force behind today’s ineffective sex offender laws.
As discussed throughout this text, although the details vary, a common script can be found in the enactment of these laws. Typically, the process begins with an Introduction: The Failure of Sex Offender Policies influential criminal case involving the horrific abduction of a child or woman by a previously convicted sex offender, who then rapes, brutalizes, and murders the victim. Local and national media—particularly television— sensationalize the case and demonize the alleged offender.
Once the identity of the perpetrator is known and proven, law enforcement officials, prosecutors, and legislators state definitively that new and amended laws would have prevented the murder from occurring. Authoritative claims are made that with legislative action, no child will be harmed in the future and offenders will be severely punished and prevented from further offenses. Grieving parents and survivors are asked to support the legislation, and many channel their trauma into the cause. New and amended sex offender laws are introduced with minimal debate, and no effective opposition is voiced, with those who do promote moderation dismissed as being soft on pedophiles. Federal and state laws are then enacted, memorialized by the name of the victim of the originating tragedy.
Cases such as the sexualized murders and abductions of Jessica Lunsford, Sarah Lunde, Polly Klaas, Megan Kanka, Alexandra Zapp, and Jetseta Gage involved all or portions of this pattern. There can be no doubt that these stranger-predator sexual attacks are horrific, tragic, and devastating. Yet in the face of such pain, the government has a responsibility to enact the laws that have the greatest chance of success.
Unlike our current approach, these laws must balance grief with evidence, pain with fairness, anger with reason, and the desire for vengeance with a plan for prevention.
The Need for Effective Leadership The government plays a critical role in defining, detecting, and punishing sexual deviance. Legislative efforts at controlling sexual behavior, scholars have noted, are strongly correlated with the mores, ethics, politics, and social conventions of each era (D’Emilio & Freedman, 1998; Jenkins, 2001). Although laws aimed at sex offenders can be traced back to the origin of the nation, the modern effort at identification of those deemed sexually dangerous began in earnest in the 1930s and ’40s (Leib, 2003; Meloy, Saleh, & Wolff, 2007).
6 Chapter 1Some scholars have argued that there have been three waves of sex offender laws (Lieb, Quinsey, & Berliner, 1998).
The current era of these laws began in 1994, when the Violent Crime Control and Law Enforcement Act included the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (Windlesham, 1998). This was the first federal law upon which sex offender registration and notification programs were established. The Wetterling Act was amended a number of times to include mandatory community notification provisions, a national database of registered sex offenders, and a requirement that appropriate college students register (Wright, 2004).
The Wetterling Act was superseded in 2006 by the Adam Walsh Child Protection and Safety Act, Public Law 109-248.
Although the scholarly literature on the Walsh Act is scant due its newness, some authors have argued that it is a tremendously harmful expansion of federal power (Chaffin, 2008; Young, 2008; Wright, 2008). Among the numerous points
within the Walsh Act are these:
■ a federal requirement that states register juveniles over the age of 14 adjudicated for a sex offense;
■ a conviction-based scheme distinguishing low, medium, and high-risk offenders;
■ an expansion of mandatory sentences for federal sex offenders;
■ an increasing role for the federal government, specifically the U.S. Marshals, in locating unregistered sex offenders (109th Congress, 2006).
According to Levinson and D’Amaro, the most common sex offender policies in use include registration, community notification, civil commitment, residence restrictions, and electronic surveillance (Levenson & D’Amaro, 2007). Meloy et al. (2007) concur with the assessment that civil commitment, registration, and notification have become common legislative responses. Yet states have gone well beyond that package of tools. States have also enacted laws requiring mandatory HIV testing of (in some cases, alleged) sex offenders; laws permitting chemical and surgical castration; and, as of July 2008, unconstitutional laws authorizing the execution of sex offenders. The scope of sex offender legislation has also reached through the Internet. As discussed in Chapter Introduction: The Failure of Sex Offender Policies Five, the federal government’s creation of an “enticement” charge allows for proactive undercover policing to prevent sex offenders from recruiting children online. Additionally, the government has begun to use preventive detention to arrest alleged offenders before they commit a crime. With all these laws dedicated exclusively to sex offenders, this book seeks to answer one question: Are they effective?
Choosing Sensationalism Over Substance Legislators often accept inaccurate depictions of the causes and motivations of sex offenders. In their examination of Illinois legislators’ views of sex offender laws, Sample and Kadleck (2008) reported that much of legislators’ understanding of sex offenders comes from mainstream media depictions, particularly those reported in the news. Their findings are consistent with Wright’s interviews with Massachusetts policymakers on their sex offender laws (Wright, 2004). Levenson and D’Amaro (2007) also noted the critical role that media play in the construction, framing, and understanding of sexual offending, as did Wright’s chapter on Internet sex stings.
In his commentary on juvenile sex offender laws, Chaffin (2008) argued that policymakers routinely choose to ignore empirical evidence in pursuit of punitive, simplistic policies designed to win political points. Chaffin argued that the enactment of the Walsh Act’s requirement that states subject juveniles over the age of 14 to the same registration and notification mandates as adults is directly contradictory to the research findings, which point to improvements in treatments and recidivism of juvenile sex offenders. Chaffin argued that policymakers’ motivations may include satisfying a public desire for revenge, or simply using these punishments as a general deterrent. He concluded his analysis with the belief that these policies have ostracized children and made their rehabilitation and recovery much more difficult.
Even with the enormous disconnect between public policy and sexual assault research, many of those who must implement these sex offender laws are trying to make them work. Meloy and colleagues (2007) noted that since this era of sex offender laws, states have varied significantly in their approaches. In their examination of eight states, Meloy et al.
8 Chapter 1reported that Vermont, Washington, Colorado, and Texas have distinguished themselves in numerous ways. Most importantly, several of these states rely on risk-assessment analysis in delineating sex offenders’ dangerousness, and they integrate clinical and empirical research continually in the policy process. Terry and Ackerman’s examination of Colorado, Minnesota, and Washington State in chapter 13 provides a discussion of how some states have used this era of big-government sex offender laws to incorporate critically and thoughtfully the issues of dangerousness, recidivism, and treatment.
Narrative and Structure of This Volume This book is divided into three sections. Part 1 provides an overview of sexual assault’s prevalence, incidence, and patterns; and empirical findings of the last twenty years of research on sexual assault. Specifically in chapter 1, Wright discusses the tragic and powerful impacts of sexual assault, the critical need for effective government response, and the major flaws with contemporary sex offender policies.
Wright identifies several common factors influencing the passage of sex offender laws. These include an overreliance on less common, high-profile, stranger-initiated sexual assaults and murders; quick legislative action; and exaggerated claims from law enforcement about the preventive aspects of future legislation. Additionally, Wright discusses how the unmitigated pain and grief of survivors affect the policy-making process and policymakers’ selective use of often-inaccurate statistics to enact and justify strangerbased sexual assault laws.
In chapter 2, Williams summarizes what researchers know about sexual assault and victimization. He looks at the national data provided by the Uniform Crime Reports, the National Crime Victimization Survey, and the National Violence Against Women Survey. Through Williams’s analysis of sexual assault data and seminal studies, one of the fundamental flaws of sex offender legislation becomes apparent. His review, consistent with numerous other studies, finds that most sexual assaults are committed by someone who had a pre-existing relationship with the victim. In essence, most sexual assaults occur within a context of a Introduction: The Failure of Sex Offender Policies relationship. The stranger-based sexual assault is a tragic, devastating, but low-frequency event. The data show that husbands, boyfriends, uncles, aunts, mothers, family friends, and dating partners represent a greater threat of sexual violence than do the stranger-predator for whom legislation is developed.