Sexual Predators

Society, Risk, and the Law

Robert A. Prentky, Howard E. Barbaree, Eric S. Janus

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781136016721
• Edition: 1
• Topic: Psychology
• Subtopic: Forensic Psychology
• Index: Psychology

Convicted sex offenders released from custody at the end of their criminal sentences pose a risk for re-offense. In many US states, Sexually Violent Predator (SVP) laws have been enacted that allow for the post-prison preventive detention of high risk sex offenders. SVP laws require the courts to make dispositions that protect the public from harm while at the same time respecting the civil rights of the offender. This book describes these SVP laws, their constitutionality, and aspects of their operation. Courts hear expert risk testimony based heavily on the results of actuarial risk assessment. Problems associated with this testimony include the lack of a theory of recidivism risk, bias due to human decision-making, and the insularity of scholarship and practice along developmental lines. The authors propose changes in legal standards, as well as a unified developmental model that treats sexual violence as an "evolving" condition, with roots traceable to childhood and paths that extend into adolescence and adulthood.

1

HUMAN DANGEROUSNESS AND THE LEGACY OF FEAR MANAGEMENT

Dr. Elizabeth Sinskey, Dan Brown’s fictional Director-General of the World Health Organization in Inferno, observes that, “Only one form of contagion travels faster than a virus and that’s fear.”

Sexual violence is a national scourge. Indeed, for a country that champions human rights, it is a disgrace. The National Violence against Women Survey reported that close to one-fifth of all women report that they have been the victim of an attempted or completed rape at some point in their lives. More than half of that group reported that the sexual violence had occurred before age 18 (Patricia Tjaden and Nancy Thoennes, Full Report of the Prevalence, Incidence, and Consequences of Violence Against Women: Findings from the National Violence against Women Survey). These estimates do not begin to reflect the untold number of unreported and thus “unknown” child and adult victims of sexual violence.

In commenting on the unalienable rights set forth in our Constitution, the Honorable Charles Gill (2005) observed that:

The truths, the rights, justice and the blessings of liberty were not extended to all people by our fundamental documents. Slaves, children, and, to a large degree, women were excluded. They were property, mere chattel, in varying degrees. Slaves had no rights, since they were property, and the child-citizens, similarly, had no rights except to someday succeed to the rights of their fathers.

(p. 4)

Like the original Constitution, our country’s laws have historically failed to extend their writ to the protection of women and children, especially from sexual violence. In this and the following two chapters, we address the laws and policies that have been adopted over the last two decades to remedy this historic failure. We return at the end of the book to a discussion of the efficacy of those laws and policies. Our ultimate goal is to enable the power of good law uniformly and consistently applied to mitigate sexual violence in all sectors of society. Primary prevention is instrumental, and law lies at the heart of primary prevention. Law itself, however, can be the victim of fear. When legitimate fear about sexual violence is magnified through the media, resulting laws and policies all too often lack the sober judgment and empirical grounding necessary for a comprehensive and systematic program of sexual violence prevention.

In this chapter, we seek to illuminate the way in which fear, often whipped up by the media, can distort public policy and sabotage the most constructive laws. We turn to historical examples of such “moral panics” to illustrate the power of fear and its potentially treacherous effects. But we caution our readers not to misinterpret this historical discussion. We do not equate sex offenders with the innocent victims of many prior fear-inspired waves of legislation. Nor do we mean to demean or minimize the fear that sexual violence engenders. That fear is real and legitimate. Rather, our point is that fear, especially when magnified by the political process, can hamper our efforts to make good public policy. When fear trumps science, when it silences good faith discussion of policy, it is prevention that suffers, in the present case, prevention of sexual violence.

Unfortunately, the law has not guided the development of comprehensive and systematic approaches to the prevention of sexual violence. Instead of identifying root causes and best-practice responses, our public policy has been reactive, driven by fear and the political exploitation of fear. Instead of encouraging robust accountability for effectiveness of our laws, all too often policy-makers ridicule or ignore science, resulting in countless resources allocated to reactive legislation that is rarely held to account for its effectiveness in preventing sexual violence.

It is time to conform our prevention policies to the reality of sexual violence, not the tabloid version. Policy-makers need the more accurate facts from the best science on the root causes of sexual violence, what perpetuates it, and what can mitigate it; to the point, policy-makers must be apprised of the most effective tools for combating rape and sexual assault. Good science must drive good public policy. Only in that way can we achieve the maximum prevention, not merely the maximum votes.

Though the science and law are admittedly an odd couple with occasional strains in their marriage, our primary point in the first three chapters is simple. Science and law must partner to markedly reduce sexual violence. But the partnership requires vigilance. Fear, politics, and the heuristics of the imperfect human brain can readily undermine this goal. Insisting on empiricism and illuminating the role of fear do not diminish the importance of prevention, they advance it.

Like all other physical assaults, rape is a battery offense. Unlike most other nonsexual battery offenses, rape is uniquely and profoundly violative (Moor, Ben-Meir, Golan-Shapira, & Farchi, 2013; Perilloux, Duntley, & Buss, 2012). It is at once both frightening—as all assault would be—and humiliating and demeaning. Almost 40 years ago, John Gunn (1976) noted that “rape is frequently a humiliating, terrifying, dangerous, and painful business for the victim” (p. 58). Moor and her colleagues referred to “a trauma of paralyzing dehumanization” (p. 1051), noting that “dehumanization and humiliation [are] highly prevalent and almost invariably predictive of a freeze response in rape” (p. 1051). The sequelae of nonsexual assault—cuts, bruises, black eye, bloody nose, broken bones, perhaps a concussion—heal with time and generally leave the victim with few serious long-term physical or emotional scars. By contrast, rape frequently leaves its victims with interminable emotional scars that are resistive to time and treatment. Moreover, although all crime instills, in varying degrees, feelings of vulnerability, there is no other crime that creates so profound a sense of vulnerability as rape. Rape crosses all boundaries of civil human interaction, ceding safety, undermining trust, and crippling future intimacy. It is in this way that rape is a very different “kind” of crime.

Rape is different in one other respect. It targets two segments of the population—women and children. Although, yes, there are adult male victims of rape (Turchik & Edwards, 2012), the overwhelming majority of adult victims are women. Controlling legislation, enacted predominantly by men, has been precipitated, with minor exceptions, by heinous sexual crimes against children, not women. Although our assertion may appear cynical, the essential point is that the threat of sexual violence sweeps across the entire population, frightening women, parents, and those who care for and about women and children. There is no other crime that casts so long and pervasive a shadow over society. In response, we have devised a variety of mechanisms for countering the perceived threat posed by sex offenders. All of these mechanisms require a determination of the “amount of threat” posed by individual sex offenders. This determination is, in essence, the subject of this book.

It is for this reason—to place sex offender legislation and risk analysis in context—we begin first by highlighting three historical instances in which fear precipitated untold injustice and irrational laws. We follow with an overview of the horrific sex crimes that precipitated the first wave of sex offender civil commitment legislation (Sexually Dangerous Person laws) beginning in the late 1930s, and conclude with a discussion of the “cycle” of events, beginning with a widely publicized crime, typically a sexual homicide, and the ensuing fear that leads to a legislative response. This cycle, first articulated by Donald Sutherland in 1950, appears very much in evidence today.

A Laconic Historical Perspective of Social Fear

Some 2,500 years ago Sophocles wrote three plays dealing with Acrisius, the mythical king of Argos. Very little remains of these plays, save a few fragments. One such fragment is widely quoted as: “To him who is in fear, everything rustles.” Fear is a deeply ingrained, hard-wired protective response to mortal threats when the earliest hominids lived in trees or caves and had ample to fear. Our preservation instinct remains alive and well. Indeed, our fascination with psychopathy may be attributable, in part, to the relative absence of this intrinsic feature of the human condition. Civilized human history, certainly since the time of Sophocles, is littered with the remnants of fear gone awry. Although fear may go awry by peculiar and uncertain biogenetic circumstance (e.g., psychopathy), the most frequent and far-reaching cause is humans, intentionally manipulating fear, typically for some social, political, or religious gain, occasionally resulting in witch hunts, vigilantism, and punitive statutory or ecclesiastic regulation of the feared objects.

“Witches” in Puritan New England

17th-century Puritan New England brings to mind images of pillories, stocks, and the infamous witch trials. In its report on Psychiatry and Sex Psychopath Legislation: The 30s to the 80s, the Group for the Advancement of Psychiatry (GAP) (1977) observed:

Colonial Massachusetts during the 17th century can be taken as a prototype for illustration…. In early colonial days and continuing up to the late 18th century, Puritan criminal law was heavily infused with Mosaic law. Sin and crime tended to be equated, and hence the sinner was a criminal. Criminal law was the worldly application of the law of God. No separate ecclesiastical courts were required because religious notions involving sex were incorporated into the application of the civil law. In a broad sense, the primary goal of criminal law was the enforcement of the morals and religion of the people….

Whippings administered to secure reform were not paltry affairs. These punishments were carried out in the stern conviction that they were being administered with the ultimate goal of reforming wayward persons. By way of excluding sadistic elements, specific directions were given to set limits on the selection of those administering such punishments. Hence, no one who was “cruel or barbarous” would be permitted to do the whipping, and the number of lashes to be “laid on” was specified—usually 15 or 20. Even a “detestable offense” did not get more than the Biblical, 39, citing the authority of Paul’s “second letter to the Corinthians.” Whipping was also the chosen punishment for adulterers and for girls who delivered illegitimate children…. Old Testament language is still used, as witnessed in the current statutory definition of sodomy in Massachusetts as “the abominable and detestable crime against nature either with mankind or with a beast.”

(p. 847–849)

Offenses of a sexual nature continued to be punished by whipping well into the late 18th century. From 1692 until 1780, the crime of adultery was punished with 40 lashes and sitting in the gallows for one hour with a rope around one’s neck as a reminder that the offense was “deadly serious” (GAP, 1977). Although initially the Puritans were reluctant to impose capital punishment without “scriptural authority” (GAP, 1977), by 1648 rape became a capital crime. In fact, rape was the only capital offense without Biblical justification (GAP, 1977). Adultery involving a married woman was a capital crime for both parties, but sexual relations between a married man and a single woman was mere fornication (GAP, 1977).

The crime for which Puritan New England, and Massachusetts in particular, was far more readily known—witchcraft—extended over a very brief period, about 14 months (February 1692–April 1693). During this period of a little over one year, roughly 160 people were accused of witchcraft and about 100 were imprisoned. Of that number, 20 were executed in 1692 by hanging (not by burning at the stake). Those accused of witchcraft were often social outcasts (e.g., Tituba was a slave, Sarah Good was a homeless beggar, and Sarah Osborne was a sickly, elderly woman). The Puritans feared Satan and believed that witchcraft was endemic. Prevailing wisdom was that Satan relied on the “weakest” among us—children, women, and the “insane”—to achieve his evil end. The sign of Satan was witchcraft, and the community, frightened by the dire warnings issuing from the theology of the “purified” (Puritan) Church of England, responded with hysteria. To be fair, European belief in witchcraft was centuries old. At its height, witches were actively “hunted” for a period of about 100 years, coinciding with the Reformation (1560–1660). Accused witches were treated equally (often torture) by the Protestant and Catholic Churches. Protestant beliefs (and solutions) on these matters are clearly articulated in Malleus Maleficarum, a treatise on witchcraft and the prosecution of witches, written in 1486 by a German Catholic clergyman (Heinrich Kramer). What occurred in New England was a predictable response to the strict code of Puritan doctrine, the intense fear of Satan (or the Devil) and his servants on Earth, and the “ways” and powers of Satan, all reinforced by the elders and ministers of the Church.

Slavery

Slavery in the United States, on a vastly larger scale than the brief episode of witchcraft, defined an entire class of humans as sub-human solely by virtue of skin color. In characterizing slavery as “The Negro Holocaust,” Gibson (1979) stated,

Immediately following the end of Reconstruction (1865–1877), the Federal Government of the United States restored White supremacist control to the South and adopted a laissez-faire policy in regard to the Negro. The Negro was betrayed by his country. This policy resulted in Negro disfranchisement, social, educational and employment discrimination, and peonage. Deprived of their civil and human rights, Blacks were reduced to a status of quasi-slavery or second-class citizenship. A tense atmosphere of racial hatred, ignorance and fear bred lawless mass violence, murder and lynching.

Slavery effectively lasted in the United States for almost 250 years, from 1619 until the Thirteenth Amendment formally outlawed the institution of slavery in 1865. One year later, in 1866, the Ku Klux Klan was founded, and two years later (1868) the Opelousas Massacre or Opelousas Riot took place when African Americans sought to join a political group of the Democratic Party in the neighboring town of Washington (Louisiana); a local unit of the White supremacist group Knights of the White Camellia went to Washington to insure that that didn’t happen. Lynchings took place in the United States for another 100 years after the passage of the Thirteenth Amendment.

Gibson (1979) stated,

Most of the lynchings were by hanging or shooting, or both. However, many were of a more hideous nature, burning at the stake, maiming, dismemberment, castration, and other brutal methods of physical torture. Lynching therefore was a cruel combination of racism and sadism, which was utilized primarily to sustain the caste system in the South. Many White people believed that Negroes could only be controlled by fear. To them, lynching was seen as the most effective means of control.

Gibson described lynchings as an institutionalized method of terrorizing Blacks to maintain White supremacy, fueled by “deep-seated and all-pervading hatred and fear of the Negro.” For 60 years, from 1880 to 1940, lynchings were a primary means of social control.

The root of terrorism according to Gibson was fear of Black social and economic advancement. Gibson quoted W. E. B. DuBois as saying in 1915 that “There was one thing that the White South feared more than Negro dishonesty, ignorance and incompetency, and that was Negro honesty, knowledge, and efficiency” (White, 1929, p. 97; cf. DuBois, 2008). As with the mythology that drove witchcraft hysteria, so too a deeply entrenched narrative enforced slavery and its violence (e.g., all Black men want to rape White women, Blacks, primarily Black men, are indolent, deficient in mentality, or criminals by nature). The narrative has been so reinforced over so many generations that it remains an endemic feature of American society. The same shrill racist narrative exists today; today, however, it is likely to be condemned as, if nothing else, politically incorrect. The original driving force, however, as articulated by W. E. B. DuBois and the many scholars that followed him, was fear of competition in the social and economic marketplace. Parenthetically, a very similar narrative was heard in Nazi Germany regarding the Jews. Although condemned as inferior, the fear reportedly stemmed from the dominance of Jews in systems of commerce and the news media.

McCarthyism and the McCarthy Era

The “Attorney General’s List of Subversive Organizations” was a centerpiece of President Truman’s “loyalty program,” initiated in 1947, well before the “rise” of Senator McCarthy. The chief architects of McCarthyism were Senator Joseph McCarthy (Republican, Wisconsin), first elected in 1947, and J. Edgar Hoover, Director of the FBI. Senator McCarthy came to prominence in 1950 when he publicly asserted during a speech that he held a list of 205 card-carrying Communists in the U.S. State Department. He further claimed that Communists had infiltrated the U.S. Army and President Truman’s Administration.

The House Committee on Un-American Ac...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Series Foreword
• Preface
• Acknowledgments
• 1 Human Dangerousness and the Legacy of Fear Management
• 2 Dangerousness, Risk, and the Law
• 3 The Interface between the Law and Science: Harmonizing the Rule of Law With Good Science
• 4 An Introduction to Violence Risk Assessment with Sex Offenders
• 5 The Development and Evaluation of Actuarial Risk Assessment Instruments
• 6 Using Actuarial Risk Assessment Instruments to Estimate Absolute Risk
• 7 The Importance of Theory in Assessing Risk
• 8 Risk Judgments under Conditions of Uncertainty: Heuristics and Biases
• 9 Policy, Law, and Cost Benefits of Management
• 10 Science and Forensic Practice: Recommendations
• References
• Author Index
• Subject Index