Variance in Sexual Violence Definitions: How These Differences Impact Our Work

It has long been recognized that the true rate of sexual violence is unknown due to difficulties arising from underreporting to law enforcement; inconsistencies in the investigation, prosecution, and follow-up of the incidents that are reported to the authorities; and societal stigmas related to attitudes and beliefs about sexual abuse.  In an attempt to address this issue, the National Academy of Sciences released a 2013 report on Estimating the Incidence of Rape and Sexual Assault (http://www.nap.edu/catalog.php?record_id=18605&utm_source=Twitter&utm_medium=napsm&utm_campaign=Hootsuite). This report addresses the current measurement of victimization rates by the National Crime Victimization Survey (NCVS), as well as concerns that the NCVS appears to be undercounting rape and sexual assault. The NCVS was first developed to provide another source of crime statistics beyond law enforcement data. It is a national household survey that collects information on a broad set of criminal victimizations (including rape and sexual assault) from victims rather than law enforcement. As users of the NCVS data expressed concern about potential underestimation of rape and sexual assault on the NCVS, the current report was requested by the Bureau of Justice Statics (BJS) to identify the reasons for this possible underestimation and provide best practice recommendations for measuring rape and sexual assault in the future.

While the report encompasses an intensive exploration of the strengths and weaknesses of the current structure of the NCVS, it begins by identifying numerous definitional problems when discussing rape and sexual assault as there are two quite different perspectives on the measurement of these behaviors – the criminal justice perspective, which focuses on “point-in-time” events that are judged to be criminal, and the public health perspective, which looks at victimization as a condition that endures over a period of time and may not necessarily be criminal.  Additional issues identified were the considerable differences on the legal definitions of rape, sexual assault, force, lack of consent, etc., as well as variance in the manner in which measurement of rape and sexual assault is implemented, across different jurisdictions.  These differences were also reflected on the existing body of independent surveys investigating rape and sexual violence (i.e., National Women’s Study [1989-1991], National Violence Against Women Study [1995-1996], National College Women Sexual Victimization Study [1996], National Intimate Partner and Sexual Violence Study [2010]).

These definitional differences caught my attention, especially due to recent dialogue in the media and on several professional listservs related to refining or changing the label of “child pornography” to “child sexual abuse images” (see http://sajrt.blogspot.com/2013/11/bearing-witness-to-child-sexual-abuse_19.html).  There are many different disciplines involved in the prevention of sexual violence (e.g., law enforcement, victim advocates, parole/probation officers, sexual offender treatment providers, community groups) and we frequently work collaboratively on varying issues related to offender management, victim safety, and policy development.  Yet, when we engage in cross-disciplinary discussion, how often do we begin these discussions with a conversation about how we each define rape, sexual abuse, sexual violence, and other related topics? 

I would assert that we often engage in these discussions with the assumption that everyone involved is coming from the same definitional understanding.  This likely occurs because we view each other as partners working on the same issues, but it may also occur because it can be difficult to step outside one’s own discipline or area of expertise.  We may sometimes forget that there are varying theories about the etiology of sexual violence, varying disciplines involved in addressing sexual abuse, and varying perspectives about how to effectively target the myriad of resulting issues stemming from sexual violence.  When we approach the table with only our own perspective in mind, this may inhibit or limit our ability to engage effectively in these multi-disciplinary discussions, as well as limit our ability to provide educational information to our communities.

A lack of common definitions about sexual violence is also readily apparent in our communities, as demonstrated by the recent debates in the media and popular culture about sexual assault on college campuses, whether or not “rape culture” exists (http://www.huffingtonpost.com/2013/11/07/rape-culture-exists-david-hookstead_n_4235955.html), the development of strategies like “anti-rape underwear” (What Are We to Make of This "Anti-Rape" Underwear?), and similar topics.  A stark light has also been focused on the struggles experienced internationally with respect to sexual violence prevention and the oppression of women, with frequent contradictory views regarding the definitions within these cultures (girl whose rape changed a country; Child Sex Abuse Steps Out Of The Shadows In Pakistan; 'Statutory rape isn't romantic,' says rape crisis centers head; South Africa's rape problem: why the crime remains under-reported).

There are many factors involved in the development and prevention of sexual violence that are reflected by the numerous disciplines who address this public health issue. I do not propose that we will solve all of these issues by reaching unilateral definitions about the different types of sexual abuse.  I am proposing, however, that it is imperative for us to remember that our own perspectives and disciplines are exactly that…our own…and when we sometimes forget that, we potentially obstruct or impede the beneficial work that can be accomplished through the respectful multi-disciplinary collaboration and community engagement that would otherwise occur.  Although we may work with different populations, have different ideas or philosophies about the etiology of sexual violence, or provide different types of services from direct treatment to policy development, when we approach these discussions and collaborations with an open mind and acknowledgement of our differences, we only become stronger and more effective in aspiring to our shared goal of No More Victims.

Katie Gotch, M.A.

Coordinator of Public Affairs 

Association for the Treatment of Sexual Abusers

Bearing witness to child sexual abuse: What do we call it? How should we understand it?

A recent sting operation resulting in hundreds of arrests on child pornography charges around the world has been in the news in recent days. At the center of an investigation that involved 90 countries was a distributor of “naturist” pictures of children that were not – on the face of it – illegal. Over time, however, it turned out that he was also distributing images of child sexual abuse.

This and related events have been discussed in various social media, including listservs of professionals and interested parties. One sexologist took offense to a recent situation in which a man was arrested for pre-offense behaviors involving a girl who was actually an FBI agent. The logic was apparently that since no one was abused, no one should be punished. Another professional decried that many jurisdictions in the US consider possession of child pornography to be a violent offense. In opposition to this judgment, they stated, “LOOKING at pictures is not violent,” and “Calling it such belongs in some Orwellian ‘1984’ scenario.” Indeed, those of us over a certain age are accustomed to describing violence as overt activity of a hands-on or weapons-based nature. The Internet has caused many to reconsider what stalking, violence, and similar crimes are and how they might be defined. On the other hand, prosecutors can be called “soft on crime” if they elect to prosecute only the most egregious of cases. So what’s violent? What constitutes child pornography (legal definition) and child sexual abuse images?

One place to start might be with definitions of violence. Here’s what the World Health Organization has to say:

Violence is "the intentional use of physical force or power, threatened or actual, against oneself, another person, or against a group or community, which either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment, or deprivation.

My belief is that we should strive to be accurate and truthful in our use of language; I’m sure no one disagrees. Obviously, not all images of children and child sexual abuse are created equal. Elsewhere in the thread there has been discussion of the often-cumbersome nature of language in our field. My hope is that professionals will err on the side of accurate, precise language; they may be “sex offenders” in the eyes of the law, but whenever possible we should still remember and express that they are people who have sexually abused. As humans, they are more than the sum of their worst behaviors. Ultimately, terms like “sex offender” and “child pornography” are heterogeneous and legal, not diagnostic. Likewise, “violent crime” is its own sort of catch-all and, indeed, there are some overtly violent child sexual abuse images on the Internet.

Some friends of mine (who live in Eastern Europe) recently showed off pictures of their toddler-age daughter taking some of her first steps, as captured on an iPhone. No one in their right mind would consider parents taking that picture an act of violence, even though it can and does get classified that way in many jurisdictions. To our knowledge, it would not have been against the law in the country in which the images were taken. Further, one member of the Association for the Treatment of Sexual Abusers also observed privately that just because they downloaded pictures of Nazi war crimes does not make them a Nazi war criminal. This point is well taken.

But at what point in our attempts to counter legal over-reach are we missing more fundamental issues? When people say that a broad category of activities is either violent or non-violent, isn’t that a particularly black-and-white way of thinking? Are these really our only options? Without meaning to cause offense to some of those in this discussion, isn’t trying to “classify” a broad range of heterogeneous images (images of child sexual abuse as well as pictures of naked children in bathtubs) an exercise in futility? Can’t we do better?

Whatever lawmakers and prosecutors use to classify crimes (e.g., violent/nonviolent), where does our professional obligation to tell the truth begin and end? Prosecutors are obviously not going to classify “child pornography” as a drug offense or moving violation. The problem isn’t that looking at images of child sexual abuse has nothing to do with violent acts, it has to do with the legal definitions … and lawmakers are typically less concerned with the precise nature of language than we typically are.

However, there is a real question about how much masturbating to images of violence against children actually does become an act of violence in itself. I don’t have the answers, but I do have some questions:

• At what point does watching images of children being sexually abused become an act of violence regardless of legal definitions? To use some analogies, at what point is receiving stolen goods akin to the actual theft? And, at a time when we can buy goods made by American corporations in countries where they may exploit child labor, at what point do we all need to consider our actions?

• Isn’t the act of looking at pictures on the internet somehow different from how violent someone might be elsewhere in their lives? Or their risk to become violent? Do we minimize peoples’ actions because they’re less likely to be violent in the future?

• Setting aside looking at imagery on computers, how would we understand someone who is present at a sexual crime, observes, and perhaps masturbates during it, and does nothing? 

• Before we assume that it is or is not its own form of violence, abuse, etc., maybe we should ask the young people in the images themselves? Or their caregivers and guardians?

• Maybe we should consider that the notions of many interested persons about what is and isn’t violence came about before the current state of electronic communications and social media?

• Given that society has changed (e.g., social media and its prevalence in the lives of people) is it time to revise our definitions of what is and isn’t an act of violence? Or is it time for us as professionals to be more aware of the potential for violence within communications?

• When we look at the results of cyber-bullying (e.g., Rehteah Parsons’ suicide in Nova Scotia), at what point do we agree that Internet-based imagery and statements *do* become an act of violence? 

• At what point do silent observers become collaborators in violent processes? Isn’t this a question that western societies have asked many times since the start of World War II?

• Are we as professionals simply asking the wrong questions when we rely on legal definitions to shape our language? Granted, most of us need to work within legal frameworks and understand the relevant terminology. Should we have higher standards in our own reports? In other words, whether an images “meets criteria” for a legal standard or not, shouldn’t we be clear in our communications about what we do and don’t know about the clinical implications? 

• If we say that laws considering it are “Orwellian” and make comparisons to the fantasy writings of Lewis Carroll, are we not engaging in the same kind of overstatement that we’re accusing our lawmakers of?

• There is a saying that “all that is necessary for evil to triumph is that good men do nothing.” Personally, I have little use for the word “evil.” Just the same, how might that phrase apply to people who view images of child sexual abuse? Is it possible that lawmakers are recognizing the harm to children and using the first words that come to mind? Is that really “Orwellian”?

David S. Prescott, LICSW

A Guest Editorial from ATSA Executive Director, Maia Christopher

Recent media reports have questioned the effectiveness of Florida's sexual offender civil commitment (SOCC) program, which allows for the preventive detention of particularly high risk sexual offenders following completion of their prison terms so that they may complete treatment in a secure facility before returning to the community.

The consequences of sexual offenses can be devastating, and it is understandable that lawmakers, victims and their families, and members of the public seek expedient solutions. In reality, however, preventing sexual abuse is a complex issue. When news media call into question current sexual offender management practices, it is important that members of the community have sufficient information to understand the issues.

The Association for the Treatment of Sexual Abusers (ATSA, and its Florida chapter FATSA) is an international, multi-disciplinary membership organization dedicated to preventing sexual abuse.  Our members are researchers, clinicians, law enforcement professionals, and victim advocates. ATSA members have contributed to the development of treatment and risk management strategies that reduce reoffending. We also work to promote social policies that will increase community safety and ensure that services are available to victims and their families.  

ATSA recognizes that the reoffenses highlighted by the Sun Sentinel were truly tragic, and that discussions about recidivism rates and risk assessment ring hollow in the wake of a heinous crime. Any victim is one too many.

Over the last 30 years, we have learned a lot about the dynamics of sexual assault. Most victims are abused by someone they know and trust. We also know that not all sexual offenders pose the same degree of risk to the community. Civil commitment is designed for those at highest risk.

The U.S. Supreme Court ruled that states with SOCC statutes must adhere to specific criteria, and individuals may be civilly committed only when (1) they can be diagnosed as having a mental disorder predisposing them to sexual violence, and (2) they are "likely to reoffend" according to a psychological risk assessment. The court emphasized that SOCC requires thoughtful consideration of the need to balance public safety with offender civil liberties, and that quality treatment is what distinguishes civil commitment from incarceration.

Since 1999, over 30,000 incarcerated offenders have been assessed for possible civil commitment in Florida, and over 700 are currently detained. A recent independent review of the program found that of the sexual offenders released to the community, 95% have not been rearrested for a new sex crime. The risk assessment procedures used in Florida are grounded in research to ensure the highest degree of accuracy; however, these methods are not foolproof. Nonetheless, evidence based assessment, treatment, and community reintegration strategies for offenders are vital in our efforts to ensure community safety.

As compelling as it may seem, the simple answer of “locking them all up” would be in violation of the Supreme Court’s rulings. Such a practice would also direct crucial resources away sexual abuse prevention efforts, as well as treatment services for victims.

So, what should we do? First, we must ensure that research guides us in identifying those at highest risk to reoffend. Second, we must target resources toward those most likely to reoffend. Third, we must ensure that sexual offenders returning to the community have both accountability and effective treatment services. This requires close collaboration between law enforcement, probation and parole, victim advocates, and sexual offender treatment providers. 

ATSA members are committed to making society safer. In addition to sexual offender risk management, we believe that lawmakers must make it a priority to prevent sexual abuse from occurring in the first place, to ensure the availability of effective and compassionate services to victims, to facilitate effective child protection programs, and to provide prevention services to at-risk families. No More Victims is our shared goal.

For additional information sexual offenders and sexual violence prevention, visit www.atsa.com.

Maia Christopher

Executive Director

Association for the Treatment of Sexual Abusers

Federal Courts Advance “Liberty Interests” of Sexual Offenders

Separate Rulings on PPG and “No contact” Orders

 

Two separate federal appeals courts have said lower courts have gone too far in depriving sexual offenders of essential civil liberties without substantive due process or just cause.

 

In the first case, a federal court of appeals was asked to determine whether the government has a compelling interest in mandating the use of the penile plethysmograph (PPG), and in this case a three judge federal panel said, “No.”

 

“…we hold that the plethysmographic condition does not bear adequate relation to the statutory goals of sentencing to outweigh the harm it inflicts, that it involves a greater deprivation of liberty than is reasonably necessary to serve any of those statutory goals, and that it may not, consistent with substantive due process, be imposed on McLaurin.” [1]

 

On October 3, 2013, in US v. McLaurin the US Court of Appeals for the Second Circuit (New York) [1] vacated a lower court ruling compelling David McLaurin, a sexual offender, to cooperate with PPG. The “Discussion” section of the ruling begins with, “A person, even if convicted of a crime, retains his humanity.”  What is rather noteworthy about this statement is that the federal appeals court is not only putting some back pressure on the public’s antipathy toward sexual offenders, but would seem to suggest that corrections officials and treatment providers cannot compromise basic human dignity under the auspices of “treatment” and public safety. The three judge panel went on to say…

 

He also retains his right to substantive due process, even if it is sharply diminished in many respects … Substantive due process prohibits the government from invading personal immunities that are “implicit in the concept of ordered liberty” and “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

The appellate court went on to challenge the basis for the compulsory use of the plethysmograph before summarily dismantling the government’s legal arguments. Their conclusion, in part, states…

 

The condition of supervised release at issue is a sufficiently serious invasion of liberty such that it could be justified only if it is narrowly tailored to serve a compelling government interest. Because the Government has proffered no such justification, we agree with Judge Noonan of the Ninth Circuit that, even when dealing with convicted felons, “[t]here is a line at which the government must stop. Penile plethysmography testing crosses it.”

 

The ruling seems to question, but not fully dismiss, the potential therapeutic benefit of PPG; but appears to determine that, in the absence of truly voluntary consent, or substantive due process, the cost-benefit ratio of PPG is not sufficient for PPG to be compelled by government.

 

The use of PPG for the “treatment” of sexual offenders (presumably for the benefit of the offender) is just one of many examples of how the treatment of SO’s has been progressively compromised by the management of SO’s (presumably in the interests of public safety). Perhaps this is a reminder that, especially with involuntary clients, treatment is still intended to be done with clients, not to clients.

 

The Wolf Child decision [2] from a year ago seems to have received little attention, but is equally compelling. The United States Court of Appeals for the Ninth Circuit in Montana was asked to review whether a district judge erred in determining that Timothy Wolf Child categorically presented a danger to all children, including his own daughters. The federal appeals court appears to have concluded that, in the absence of evidence to the contrary, broad contact restrictions placed on Mr. Wolf Child were a violation of his civil liberties. The federal appeals court reversed the lower court restriction and remanded the case to the district court with the directive to review…

 

“conditions relating to Wolf Child’s being in the company of other minors … [subject to] only suitably narrow conditions that will comply with the applicable legal requirements … Should the district judge decide to impose such narrowly drawn restrictions they must be reasonably related to the statutory goals of supervised release and involve no greater deprivation of Wolf Child’s liberty than reasonably necessary to accomplish those goals given the facts, circumstances, and legal requirements set forth in this opinion.”

 

It is beyond the expertise of this blogger to know the reach of these federal decisions. It appears that federal appeals court rulings are binding on federal district courts in their district, but not in other courts; however rulings may be persuasive in other courts, especially if decisions were on constitutional (rather than procedural) grounds.[3]  In overturning lower court decisions, the message from these federal courts might not be intended just for the judiciary. Perhaps, the courts also intend that professionals, including corrections agents, treatment providers, and social workers be more mindful of the civil liberties of sexual offenders.

 

Sexual offenders typically do not challenge onerous conditions of probation or terms of treatment because of the perceived risk – they can make things worse for themselves. Clients not only have to reconcile what Jeslyn Miller [4] describes as the “treatment paradox”, but failures to cooperate with treatment or civil requirements typically carry severe penalties. Perhaps, clinicians also believe we cannot challenge probation or treatment requirements that seem unwarranted. To the contrary, these federal decisions would seem to suggest professionals might indeed be complicit in violations of clients’ civil liberties.

 

The civil regulation of sexual offenders has been progressively creeping into treatment, resulting in what Astrid Birgden and Heather Cucolo have called “treatment by management.”[5] In addition to intrusive PPG testing and unwarranted contact restrictions, perhaps other examples of overreaching regulatory (i.e., civil as opposed to criminal) requirements include sex offender registries, residence restrictions, polygraph requirements and, in the extreme, sexual offender civil commitment. When such civil regulations are unreasonably intrusive, overregulation not only infringes on civil liberties, but may actually be counterproductive for treatment and recovery of offenders and their families.

 

When professionals commingle the healing arts of psychotherapy with the blurry interests of management and supervision, without good empirical evidence or unambiguous justification, we may not just be interfering with clients’ civil liberties, we might be entering the realm of professional ethics. Such professional actions or omissions may be subject to review by professional licensing boards.

 

Whether or not these two federal decisions reach beyond the Second and Ninth Circuits, the strong opinions issued by unanimous panels of federal judges amount to something of a rebuke. Prudent rebalancing may have to come from some combination of two sources: From district courts, whose domain IS the balance between public interests and individual rights, and professionals who are most informed about the efficacious treatment and equitable management of sexual offenders. Concerned sexual offender service providers can play a vital role with our allied professionals toward informed policies, appropriate vigilance for prevention, and best practices applied uniquely to clients and their families.

 

Jon Brandt, MSW, LICSW

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[1] United States Court of Appeals for the Second Circuit

Docket No. 12-3514-cr 9; US v. McLaurin

Argued: June 18, 2013; Decided: October 3, 2013

 

The full McLaurin decision:

http://www.ca2.uscourts.gov/decisions/isysquery/c1aaee69-7cdc-4326-9229-0a5edf4cc7b4/1/doc/12-3514_opn.pdf

 

A short summary of the McLaurin decision by the American Bar Association:

http://apps.americanbar.org/ababoards/blog/blogpost.cfm?threadid=29062&catid=14909

 

[2] United States Court of Appeals for the Ninth Circuit

Docket No. 11-30241, D.C. No. 4:11-cr-00012-SEH-1

USA, Plaintiff-Appellee, v. Timothy Eric Wolf Child, Defendant-Appellant.

Appeal from the United States District Court for the District of Montana

Argued and Submitted July 12, 2012 - Seattle, Washington; Filed October 23, 2012

 

The full Wolf Child decision:

http://cdn.ca9.uscourts.gov/datastore/opinions/2012/10/23/11-30241.pdf

 

[3] http://www.law.georgetown.edu/academics/academic-programs/legal-writing-scholarship/writing-center/upload/WHICH_COURT_IS_BINDING_Painter-and-Mayer-FINAL.pdf

 

[4] Miller, J. A. (2010). The Treatment Paradox. The California Law Review, 98, 2093-2128. Retrieved from http://www.californialawreview.org/assets/pdfs/98-6/Miller.FINAL.pdf

 

[5] Birgden, A., & Cucolo, H. (2011, September). The Treatment of Sexual Offenders: Evidence, Ethics, and Human Rights. Sexual Abuse: a Journal of Research and Treatment, 295-313. http://sax.sagepub.com/content/23/3/295.abstract