The Scarlet Letters :SUV

The voice-over at the beginning of the TV program Law and Order: Special Victims Unit states: “In the American criminal justice system, sexual offenses are considered particularly heinous.” That is very true, but why? What makes indecent exposure, obscene telephone calls or, for that matter, downloading photos of naked children onto your computer more heinous than murder or kidnapping?

You’re probably thinking, “That’s not what we mean by heinous sexual crimes.” Think again. As an article in The Economist on the punishment of sex crimes in the United States (“Unjust and ineffective” 8/09, unsigned) informs us:

“Every American state keeps a register of sex offenders. [...] Many people assume that anyone listed on a sex-offender registry must be a rapist or a child molester. But most states spread the net much more widely. A report by Sarah Tofte of Human Rights Watch, a pressure group, found that at least five states required men to register if they were caught visiting prostitutes. At least 13 required it for urinating in public (in two of which, only if a child was present). No fewer than 29 states required registration for teenagers who had consensual sex with another teenager. And 32 states registered flashers and streakers.”

Also, the Law and Order scripts repeatedly say that people who commit sex crimes are almost certain to reoffend. Do statistics justify that statement? No. Ask anyone at random what the recidivism rate is for sex offenders. (I have – over a hundred.) Most will answer somewhere between 65 and 90 percent, and nearly all will say that sex crimes have a higher recidivism rate than other felonies. As a matter of fact, car theft has that honor, followed by convenience store hold-ups. Driving while intoxicated with its near 100% recidivism would top the list if it were a felony in the United States, but it is a misdemeanor. Sexual offenses occur very close to the bottom of the list, with a paltry 5% recidivism.

Admittedly, the actual rate is probably higher. Many sex crimes go unreported, and incest, which is among the most likely to be repeated (flashing is another), is also the most under-reported. On the other hand, while burglary, armed robbery, car theft, etc., are considered different crimes so that a bank robber who commits burglary does not appear on the recidivist lists, any offense involving sex (or non-sexual nudity, for that matter) counts as a sex crime. A person caught urinating in public is considered a repeat offender if he has a prior conviction for obscene phone calls. Similarly, someone who has committed a non-violent sexual offense and has a non-sexual violent crime on his record (say, aggravated assault in a barroom brawl) is classified as a potentially violent sex offender.

(Incidentally, if you have ever been tempted to dial one of those numbers on a public lavatory stall that promises “Sheri” will show you a good time, don’t. Sheri certainly did not go into the men’s restroom to graffiti it; probably some boy in her high school put it there as a malicious joke. In other words, Sheri is most likely a minor, and the police, public prosecutor and eventual jury will assume you knew it. That’s child molestation.)

In the United States the sex offender registry is available to the public, and except for the offender’s stats and photo, the information on it is often misleading. For example, the offenses of someone who had sex with a sixteen-year-old when he was eighteen and is later convicted of fondling a six-year-old (perhaps wrongly – the prior conviction is enough to convince a jury of his guilt) will be described something like “statutory rape, penetration, six-year-old female.” These people are shunned and have a hard time finding jobs and housing. If they are guilty, it makes rehabilitation more difficult.

This raises at least three questions: How likely are people to find out that someone is a sex offender? How many innocent people have been convicted of a sex crime? Can sexual offenders be rehabilitated?

1) How likely are people to find out that someone is a sex offender?

Most States have three or four classifications of sex offenders based on their likelihood to reoffend. The seriousness of the crime is not taken into account. (Hence the high number of flashers in the most dangerous category.) Here are the statistics from Georgia, according to the Economist article cited above:

“Georgia has more than 17,000 registered sex offenders. Some are highly dangerous. But many are not. And it is fiendishly hard for anyone browsing the registry to tell the one from the other. The Georgia Sex Offender Registration Review Board [...] assessed a sample [...] and concluded that 65% of them posed little threat. Another 30% were potentially threatening, and 5% were clearly dangerous. [...] A very small number, ‘just over 100’, are classified as ‘predators’, which means they have a compulsion to commit sex offences.”

Now, who decides who is more likely to reoffend? In many States it is the Department of Corrections. They look at the offenses, assign them numbers, and add them up. The result is that in practice 8% of people at the mid-level reoffend as opposed to 4% one level higher. But why bother reassessing the criteria when it’s all guesswork anyway?

More and more States require community notification within a four-block to one-mile radius if a Level 3 offender (which includes a small number of predators among the flashers and Peeping Toms) moves into a neighborhood, registers in a vocational training program, or takes a job there. In some States this means residents, fellow students and co-workers receive a notice that a sex offender will be living or working near them. Others supply his photo and/or have an open meeting for local residents led by the police or DOC. In poor neighborhoods nobody takes much notice, and this is where most offenders end up living. But the media know what interests the public. In middle-class neighborhoods, the offender’s photo and an ambiguous list of his convictions very often show up in the newspapers or on the TV news, along with opinions solicited from passers-by. So much for your four-block radius.

Furthermore, many States restrict how close to a school, park, church, etc., an offender may live or work, whether or not his crime involves minors. I have read statistic-based arguments that most sexual crimes occur within six blocks of the offender’s residence. Looking more closely, I discovered that the vast majority occurred within his family. If you discount those, most commit their crimes further away.

Does community notification protect anyone? No, it only frightens them. The near impossibility of finding a place to live given these restrictions and of securing work when your prospective employer knows you have committed a sex crime has driven hundreds of offenders underground, so the police no longer know where they are. These laws put you in greater danger. Most police oppose them.

2) How many innocent people have been convicted of a sex crime?

We have no way of knowing this, just as we have no way of knowing how many innocent men are on Death Row. We may fairly assume that the numbers are about the same. A number of convicted rapists identified by their supposed victim in the absence of forensic evidence have been exonerated by DNA. If a grown woman’s testimony is not reliable, how can we credit what a child tells us?

Yet we do. Self-declared “experts” routinely testify that they have extensively interviewed a very young child victim using the latest “scientific” methods (although they will admit that another interviewer might get different results), and their evidence is generally damning. They conduct and tape several interviews, but the jury only sees one, which is not necessarily the last when in subsequent interviews the child’s story becomes so exaggerated no one would believe it. The State has unlimited funds to pay expert witnesses; a person represented by a public defender cannot afford any.

If a child under ten identifies someone s/he saw climbing in the window of a burglarized house, there would not be a case without supporting evidence. If the child claims s/he was molested, there is, and the accused person is nearly always convicted. From the Middle Ages through the 18th century, the unsubstantiated testimony of a child thirteen and under was allowable for only one crime – witchcraft. Of course, an “expert” on witches had to determine if the child was, in fact, possessed. I am not comparing child molestation to witchcraft; I am comparing how we react irrationally to these accusations. Both speak to our most deep-seated fears. Politicians, journalists and writers of TV and movie scripts all know that. Hence a public outcry, and our repressive, exaggerated, unjust and counter-productive laws.

3) Can sexual offenders be rehabilitated?

Again, we don’t know. We are told that treatment of repeat offenders is most often ineffective. We have tried the same treatment on thousands of offenders with meager results. One would think one would have stopped after three failures. I say, try a dozen or more different treatments on one offender before you declare him untreatable. Moreover, the likelihood that one treatment will work for everyone is less than nil.

People who commit the same crime again and again need intensive one-on-one therapy if they are to be cured, and they need to be assured of confidentiality unless the psychiatrist determines that they pose an immediate threat. Psychoanalysis may not work, of course. However, the sex offender treatment prescribed most often (if not always) consists of six months to a year of group therapy conducted by a psychologist or reformed offender or some other “expert”. The DOC assigns them to such a program while they are on probation, and everything they say or write is available for inspection. So much for confidentiality. And after their probation ends, they can seldom afford treatment.

In any case, group therapy has been shown time and again to be minimally effective. This is not surprising. It seems we assume that sex crimes are an addiction. They seldom are. Sexual offenders are usually acting out anger or subconscious problems that date back for decades. Group therapy will not get at the root cause. It is at best a band-aid.

Should we lock them up forever, then? Perhaps yes, if they are truly dangerous. But what should be clear is that unless a person’s offenses fall into a pattern we cannot consider him a recidivist, and if subsequent offenses are less serious than the first, it means he is becoming less dangerous. Reoffending does not necessarily mean he poses more of a threat.

Sexual predators need to be closely monitored, but for God’s sake, let’s give the others a break. High school girls who sent pictures of their naked breasts on their cell phones have been indicted for distributing child pornography. So was a woman whose grown son showed some people a naked photo she had taken of him as an infant (and she was convicted). A man found guilty of the statutory rape of his girlfriend just a few months younger than him – her father waited till he turned eighteen before pressing charges – spent several years in prison and is now on the sex offender registry although he is happily married to the woman in question, who has broken off all contact with her father. Owners of day care centers have been convicted of child molestation (and even Satanism) only to be cleared afterward. They were neither granted damages for false convictions, nor have they been able to obtain a license to open another center. And the list goes on.

Are we nuts? In America laws against oral sex between spouses were not struck down until 1996. How long ago was it that homosexual relations between consenting adults was a crime? It still is in some countries. No babysitter is safe from an accusation of “bad touch” – as if a child of two or five or even eight knows exactly what that means. Don’t rely on the “experts” to exculpate you.

(Just for the record, I have never been accused or convicted of a sexual offense. I was lucky not to be caught when I burned a few large holes in my jeans by spilling battery acid on them, and drove over fifty miles down public roads without realizing my dick was sticking out. Okay, it was hanging out.)

[For The Economist article: http://www.economist.com/displaystory.cfm?story_id=14164614. While it is no longer available except to subscribers, you may read people’s very telling reactions to it: http://www.economist.com/user/Anonymous%2Bin%2BAmerica/comments?page=2. Also see http://constitutionalfights.wordpress.com/2009/08/06/unjust-and-ineffective/ for other arguments against our sex crime laws, and be sure to click on the links.]

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