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«Sex Offender Laws Failed Policies, New Directions ■ Richard G. Wright, PhD NEW YORK Contents Contributors..................... ...»

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Williams also summarizes recent research on the efficacy of treatment and on specific issues associated with sexual offenses committed by juveniles and female offenders.

In doing so, he provides an overview of a central issue in the sex offender debate: the question of differences among sex offenders. Critics of sex offender laws often argue that the laws are overly broad and make poor, if any, distinctions amongst sex offenders, thus overinflating the dangerousness of most (Lieb, Quinsey, & Berliner, 1998; Meloy et al., 2007;

Levenson & D’Amaro, 2007; Wright, 2008; Chaffin, 2008).

In chapter 3, Terry and Ackerman analyze the evolution of major sex offender laws. They provide the historical context with an examination of early sexual psychopath laws and continue their analysis up to the 2006 passage of the Walsh Act. With their review of the voluminous literature, they provide a comprehensive understanding of the general lack of empirical support for these policies. As Welchans noted in her 2005 article on evaluations of twelve state sex offender registries, there is a disconnect between public perception and empirical efficacy. She noted that although the general public approves of the laws, there is little to no evidence of their impact in reducing recidivism. Terry and Ackerman expand on Welchans’s assessments.

As with the formation of all criminal justice policies, there is an appropriate and important place for the stories, words, and experiences of victims. A common criticism of sex offender laws, however, is that policymakers have allowed a subset of victims and their tragic, heartbreaking cases to define national policy (Wright, 2004; Zgoba, 2004; Sample & Kadleck, 2008). Effective policy should balance the stories and pain of the victims with empirical evidence and evaluated best practices.

One of the most important voices in the recent sex offender debate has been Patricia (Patty) Wetterling, who, with her husband Jerry, went through the tragic and devastating experience of having their 11-year-old son, Jacob, abducted near their home in Minnesota in 1989. With their son still

10 Chapter 1

missing, Patty Wetterling has spent the last twenty years of her life working to end sexual violence. Chapter 4 represents Patty Wetterling in her own words. In a question-and-answer interview with this volume’s editor, Ms. Wetterling discusses why these laws are enacted despite their focus on the lowerfrequency stranger assault, the interface between distraught victims and policymakers, her and her family’s experiences during the trauma and recovery from Jacob’s disappearance, and her current work in sexual assault prevention.

Part 2 of this volume presents the evidence—the controversial, legal, and policy issues associated with specific sex offender laws. This section expands the current literature in several areas. Wright’s exploratory examination of Internet sex stings in chapter 5 presents a thorough assessment of a new and complex investigative and policy tool. As he discusses, the federal government and the states created a crime known as “enticement” to allow police agencies to prevent sex offenders from using the Internet to meet and potentially assault children. Because of this legislation, law enforcement officials have utilized their undercover expertise to identify and arrest would-be sex offenders. This approach, Wright notes, is fraught with ethical problems. He argues that this strategy, well-meaning though it is, represents a form of preventive detention and net widening justified by the heinous actions of a few.

In chapter 6, Radeloff and Carnes examine an oftenignored set of sex offender laws: mandatory HIV testing and intentional transmission of HIV. With 46 of 50 states passing statutes that require those accused (or convicted) of sex crimes to undergo an HIV test, it is clear that this is a commonly used sex offender policy. Radeloff and Carnes’s examination is, to the editor’s knowledge, one of the first to appear in the criminological and sociological literature. They frame this issue with a review of other policy efforts at mandatory HIV testing, with an analytic look at the experiences of pregnant women and sex workers. Radeloff and Carnes raise the numerous privacy concerns of mandatory HIV testing. Turning their attention to sex offenders, they examine the issues of victim notification, due process, and the conflict between solid public health practices and the criminal justice approach. Through Radeloff and Carnes’s chapter, it is apparent that this widespread policy deserves further empirical and analytic evaluation.

Introduction: The Failure of Sex Offender Policies As previously mentioned, federal sex offender laws were expanded with the 2006 passage of the Walsh Act. Sample and Evans’s chapter 7 takes a detailed look at one major provision of the new law: the Sex Offender Registration & Notification Act (SORNA). They include a discussion on the final SORNA guidelines published by Attorney General Michael Mukasey in July 2008. Sample and Evans also discuss the numerous studies on the limited and sometimes negative impact of sex offender registration and notification.

A relatively recent trend in state-level policy initiatives has been the passage of laws requiring offenders to be electronically monitored upon their probationary or parole release. In chapter 8, Meloy and Coleman review the findings about the impact of electronic monitoring, also known as GPS (Global Positioning Satellite) monitoring. They report that there are still significant issues with GPS monitoring, including public misperception, exaggerated promises from law enforcement, probation and parole, lag time, and overutilization. They conclude that, within the appropriate probation and parole settings, GPS monitoring can be an effective tool in sex offender management.





Perhaps the most popular and empirically ineffective sex offender policy is that of residence restrictions. These laws, which have been enacted at the city, county and state level, restrict where sex offenders may live. Although they vary in their specific range, these statues generally limit offenders to living outside 1,000 feet from a school, park, public pool, or other place children may congregate. In chapter 9, Levenson provides a candid discussion of residence restrictions, their efficacy, and their unintended consequences. Examining numerous local, county, and state efforts, Levenson provides the reader with a well-documented conclusion that despite their growing popularity, these laws are divisive and counterproductive. Levenson also examines the impact of these laws on offenders’ ability to reintegrate and on their attempts at living an offense-free life.

As noted earlier, reliable evidence exists that another controversial set of sex offender laws may be appropriate for select offenders but is overutilized in its current form. In chapter 10, Scott and del Busto discuss state laws on chemical and surgical castration. The authors review the historical role of castration in sexual assault prevention, the biological basis for the laws, the biochemical impact on offenders, and the

12 Chapter 1

associated legal issues. Similar to the issues raised in Radeloff and Carnes’s chapter on mandatory HIV testing, Scott and del Busto discuss the conflicts that exist between the medical community’s views on the role of castration and the demands of public safety policies. Their assessment concludes that in select conditions, with a defined subgroup of offenders, castration may be an effective management strategy.

In chapter 11, Harris provides a comprehensive analysis of civil commitment legislation. Initiated in 1990 in Washington State, these laws provide for the perpetual detention of sex offenders after their criminal sentence has been completed.

With the 1997 Supreme Court ruling in Kansas v. Hendricks upholding the constitutionality of these laws, numerous states enacted statutes focusing on the most dangerous sex offenders. As Harris notes, these states have varying criteria to determine what constitutes a “sexually violent predator” eligible for civil commitment. Harris also examines the conflict between the treatment goals of the psychiatric community and the detention demands of the criminal justice apparatus. Harris concludes his analysis with a discussion of the costs of civil commitment and the long-term viability of the policy.

In the final chapter of Part 2, Rayburn Yung discusses the timely and recent issue of the execution of sex offenders.

As of 2008, six states had expanded their capital punishment statues to allow for the execution of those convicted of child rape. This policy trend was an apparent direct challenge to the Supreme Court’s 1977 ruling in Coker v. Georgia that such laws were an unconstitutionally disproportionate punishment. Rayburn Yung discusses the Supreme Court’s 2008 ruling in Kennedy v. Louisiana, upholding its previous decision, that these existing state statutes are unconstitutional. Rayburn Yung also discusses why many victims and victim advocates oppose expanding the death penalty to include sex offenders.

Having documented the generally poor efficacy of sex offender laws, the book examines policy alternatives in its final section. Specifically, it examines state leaders in sexual offense management, the viability of the containment model, preliminary assessments of if and how restorative justice may fit in sex offender management, and the still-unmet needs of sexual assault victims.

Introduction: The Failure of Sex Offender Policies Terry and Ackerman return in chapter 13 to examine a handful of visionary states and programs. The authors demonstrate that Washington State, Minnesota, and Colorado turned the demands of the federal mandate into a push for empirically driven laws balanced with victim input. Since some of their efforts predated the 1994 Wetterling Act, these states have also demonstrated leadership and vision in sexual assault prevention, offending, and treatment.

The authors do not limit their discussions to state efforts.

They examine the Center for Sex Offender Management, an initiative of the federal government. This training and technical assistance center utilizes research and evaluation in helping communities implement thoughtful sex offender management programs. Additionally, Terry and Ackerman profile Stop It Now!, a sexual abuse prevention program based in a public health framework. Summarizing the evaluative literature on this approach, they demonstrate that in the face of punitive, overreaching laws, some communities are implementing and evaluating risk-based clinically and legally sound alternatives.

In chapter 14, English discusses the containment model, a policy approach in use in select communities. This approach focuses on victim safety, interagency collaboration, and risk assessment. English provides the reader with evaluative evidence that the containment model does reduce offender recidivism.

Given the numerous problems with today’s legislative onslaught, Della Giustina examines if, why, and how restorative justice can be used in addressing sexual violence. Chapter 15’s examination of restorative justice and sex offending begins with an overview of the restorative justice model and its approach. The author provides insight into how reintegrative shaming may impact victims’ recovery and enhance offender accountability. Given the numerous practical and ethical limits in using restorative justice in sexual offending, Della Giustina provides an interesting template for practitioners and researchers to develop and assess.

As noted earlier in discussion of chapter 4’s interview with Patty Wetterling, the voices of sexual assault victims and their families are critically important in policy planning and implementation. Effective policy making includes victims and their advocates and seeks to balance their hurt and needs

14 Chapter 1

with constitutional limits, empirical evidence, budgetary constraints, and the input of law enforcement and the criminal justice community. In the concluding chapter, 16, Bandy provides an illuminative discussion of the unmet needs of sexual assault victims. Through interviews with advocates, victims, and victim service agencies, Bandy documents that many of those directly affected by sex offender laws do not find the laws particularly helpful. Bandy provides evidence that victims and victim advocates find sex offender laws a distraction from the dominant issues of intimate-partner and familial sexual assault. Bandy’s chapter reminds the reader of the needs sexual assault victims still have and the critical importance of evidence-based policy.

It is the authors’ hope that this volume of essays will help improve the United States’ ability to prevent and respond to sexual assault. Given how tragic rape and molestation are, it is critical that government efforts become more effective. We believe that by incorporating the empirical evidence and the voices of all victims, and balancing those with constitutional protections, budgetary constraints, and a long-term holistic approach, sexual violence can be reduced and prevented.

The U.S. government has a responsibility to make victims, their families, and their allies safer.

References Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No.

109-248. 64.

Chaffin, M. (2008). Our minds are made up—don’t confuse us with the facts: Commentary on policies concerning children with sexual behavior problems and juvenile sex offenders. Child Maltreatment, 13 (2), 110–121.

D’Emilio, J., & Freedman, E. B. (1998). Intimate Matters: A History of Sexuality in America (2nd ed.). Chicago: University of Chicago Press.

Jenkins, P (2001). Beyond Tolerance: Child Pornography on the Internet.

.

New York: New York University Press.

Leib, R. (2003). State policy perspectives on sexual predator laws. In B. J. Winick & J. Q. LaFond (Eds.), Protecting Society From Sexually Dangerous Offenders (pp. 41–60). Washington, DC: American Psychological Association.

Levenson, J. S., & D’Amaro, D. A. (2007). Social policies designed to prevent sexual violence: The emperors’ new clothes. Criminal Justice Policy Review, 18 (2), 168–199.

Lieb, R., Quinsey, R., & Berliner, L. (1998). Sexual predators and social policy (M. Tonry, Ed.). Crime and Justice: A Review of Research, 23, 43–114.

Introduction: The Failure of Sex Offender Policies

Meloy, M. L., Saleh, Y., & Wolff, N. (2007). Sex offender laws in America:



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