A note about sajrt.blogspot.com, Minnesota Sex Offender Program (MSOP), and Robin Wilson

As many sajrt.blogspot.com readers may be aware, class action lawsuit proceedings are ongoing regarding Minnesota's civil commitment program, known as the Minnesota Sex Offender Program (or MSOP). In the past, sajrt.blogspot.com has included posts about both sexual offender civil commitment, generally, and the MSOP, specifically.

Civil proceedings in Minnesota continue to evolve, and Federal Judge Donovan Frank recently announced the appointment of four sexual offender treatment experts retained to guide the court in the weeks and months ahead. The experts are Naomi Freeman, Deb McCulloch, Mike Miner, and Robin Wilson. 

As our readers are aware, Robin Wilson is the Chief Blogger for sajrt.blogspot.com. Given his new role, and in the interest of limiting potential conflict of interest concerns, no policy-related posts will be made on this site regarding sexual offender civil commitment or the MSOP until such time as Robin's retainer to the court has been terminated. Posts on these topics of a more purely research nature will be managed by SAJRT Editor-in-Chief Dr. James Cantor.

Age of Consent in the UK: A guest post by Dr. Kieran McCartan

The issue of what the age of consent to sexual activity should be was recently raised in the UK. On this occasion it was not in the context of an offence, nor was it in the context of punishment. Rather, it was raised in the context of prevention, as well as public health. It was suggested that the age of consent in the UK (which is 16) should be reviewed, reportedly in an attempt to prevent teenage pregnancy, poor and problematic teenage sexual relationships, and to allow for appropriate and realistic engagement between practitioners and children.

Ideas around consent, puberty, sexual engagement, child protection, and public health are at the heart of work with persons who have sexually offended. Indeed, we only have to look at James Cantor’s talk at the November 2013 annual conference of the Association for the Treatment of Sexual Abusers. So, when Professor John Ashton called for a national debate on lowering the age of consent from 16, it was clear that we really need to consider the implications of this proposal. Professor Ashton suggested that lowering the age of consent would help better educate children about engagement in sexual behaviour and, therefore, protect them more fully. He cited as examples of best practice other European countries with a lower consent age, indicating that these countries generally have lower teenage pregnancy rates, lower infant mortality, and lower levels of sexual transmitted diseases. Professor Ashton’s suggestion was dismissed out of hand by UK Prime Minister David Cameron as damaging, irresponsible, and insulting.

Age of Consent varies internationally, and sometimes nationally, as demonstrated in the following table:

Regardless of your opinion as to what the age of consent should be, there are real issues relating to sexual abuse and child protection caught up in this debate, including:

• What impact would a change in age of consent have on children below the current age of consent who are having sexual relations? It would hopefully open up possibilities for more education on sex, a greater discussion of appropriate age related sexual interactions; open up more possibilities for greater sexual health help (e.g., condoms, protection, counselling, etc.), potentially reduced use of the internet for sexual advice and, perhaps, less use of pornography. However there is a counter-agreement that lower the age of consent will lead to more teenage/adolescent sexual behaviour, increased victimisation, and a weakening of the state’s ability to prosecute inappropriate offenders as well as offences.
• Experimentation vs. abuse? Often the reason why certain persons engage in certain activities is not as simple as simply considering issues of age. For example, we may need to distinguish between children and childlike behaviour. In the cases of both perpetrators and victims learning difficulties (e.g., Intellectual Disability) and/or mental illness, how do we evaluate the impact that their condition has on consent, especially when those conditions cause them to understand things on a level pertinent to age of consent in non-disabled persons? This also highlights the balancing act we must be mindful of when distinguishing between child-on-child sexual abuse versus childhood experimentation, a distinction that is not always easy to make (Human Rights Watch’s 2013 publication Raised on the Registry is pertinent to this discussion).
• What is consent? Age of consent is based on the notion that there is a line of best fit (and, a socially constructed and morally defined line at that) that indicates a point at which we are best able to appropriately understand sexual relations and their impact. This raises many questions, especially regarding who determines this and how? Additionally, how does this relate to persons with special needs (intellectual or cognitive disabilities, mental health conditions)? How are people educated about consent and does this match up to their peer interactions and life experiences? This argument is also confused by the fact that some countries have the equivalent of statutory rape laws, meaning that below a certain age you cannot legally give consent. For instance, in the UK all sexual relationships with anyone under 13 are automatically considered to be rape because teens below that age are not thought of as being able to give consent. However, there is a odd 3-year gap in the middle between the statutory rape age and the age of consent. How do we explain the three years teens will have to wait before they can give the informed consent that the law seems to think is possible post-13? As you can see, the idea of consent is difficult in a legal, moral and psychological sense, which means that consent laws are the product of historical compromise.
• Social and Cultural practices relating to sex and consent? With all modern western societies being so culturally diverse, this means that additional cultural practices have to be incorporated into policy (for example, how do we manage immigrants coming from nations with such practices as forced marriage, child brides, female genital mutilation). Similarly, do we need to revisit some currently established practices in light of this new cultural integration? Even though age of consent may be different internationally, new immigrants and members of minorities will have to fall in line with policies in their host country and not their country of origin. However, has enough be done to educate newcomers on such issues?
• Technology, new media and old media? We have started to see an increase in sexting and image sharing between children. In public health terms, this has got to the point where we are on the verge of calling it an epidemic. However, contextually, all these devices, technologies, and formats are new; therefore, can we really compare them to 20 years ago when they did not exist? On one level, children are potentially no more sexualised and sexually active than previously, we just have more ways of uncovering it now. Previously, children may have shown each other their bodies, been sexually engaged, or looked at images offline and in private. Now, they are doing it online and in public. This is further complicated by children’s (lack of?) understanding of what it means to engage in such sexually charged activities in online interactions (e.g., sexting, sending inappropriate images, etc.). A recent study of young adults showed that their understanding of sexual politics and legalities are often quite limited (Fenton et al., 2013, ATSA Forum, available via the Comments section).

So, should the age of consent be lowered? I’m not sure anyone has a good or conclusive answer to that question, and I am no different. Should changes to age of consent and their implications be debated?  On this, I would say “yes”. Consent and understanding of sexual behaviour should be framed as an issue important in child protection, over and above how they pertain to  childhood development and sexual exploration. Maybe the place to start is in considering the social harms versus social benefits that may result from different standards of age of consent. Further, it will be important to assess the impact of age of consent on child vulnerability and the sometimes inevitable negative social consequences that come with breaking the “social contract” of the age of consent, which appears to be different from the actual “social norm” of childhood sexuality. This suggests that Professor Ashton is correct, in that childhood sexual behaviour is a public health issue that needs to be framed in a preventive/educational dialogue that helps protect children. Community engagement is at the forefront of this perspective.

Dr. Kieran McCartan

Associate Professor in Criminology

Programme Manager in Criminology

University of the West of England, Bristol UK

kieran.mccartan@uwe.ac.uk

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

---

[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

 

A Guest Post by Katie Gotch and Joan Tabachnick

Sexual Violence Perpetrators are Common Among Adolescents…or Are They? The Power of Language When Discussing Sexual Violence

A recently published study entitled The Prevalence Rates of Male and Female Sexual Violence Perpetrators in a National Sample of Adolescents (Ybarra & Mitchell, 2013) has generated quite a response from both professionals and the mainstream media.  This response is not surprising as the article is one of the first investigations into the prevalence of sexual violence among adolescents who are not involved in the criminal justice system.

The study utilized data from a longitudinal self-report survey (Growing Up with Media) which focused on the possible associations between exposure to violent media and violent behavior.  Information was obtained from youth-caregiver pairs in 2010 and 2011 through questions about forced sexual contact, coercive sex, attempted rape, and completed rape. Key to the question about consent was the phrase “when I knew they did not want to.”  The results of the study indicated 9% of the sample reported some type of sexual violence perpetration in their lifetime, which included:

• 8% (n = 84) who kissed, touched or made someone else do something sexual when the youth knew the other person did not want to do (defined by the researchers as forced sexual contact)
• 3% (n = 33) got someone to give in to sex when he or she knew the other person did not want to have sex  (defined as coercive sex)
• 3% (n = 43) attempted, but were not able to force someone to have sex (defined as attempted rape)
• 2% (n = 18) forced someone to have sex with him or her (defined as completed rape)
• Overlap between the categories was noted and, among perpetrators, 12% reported two different behaviors, 11% reported three different behaviors, and 9% reported all four types of behavior

Other critical information noted by the authors was:

• “…consumption of X-rated material significantly differed for perpetrators and nonperpetrators of all types of sexual violence.  Differences were almost entirely explained by whether the material was violent in nature.” 
• “Youth living in low income households were less likely to report attempted rape than youth in higher income households.”  

And, the most controversial of the findings:

·       “By ages 18 or 19 years, the split of male to female perpetrators was nearly equivalent.  More females reported older victims, and more males reported younger victims.” 

This research is invaluable and we applaud the researchers for investigating such a difficult topic and providing some important baseline information about national rates of sexual violence in adolescence. However, the conclusions made from the data and even the title selected for this article have been problematic and, in many ways, represent a lost important opportunity for deeper discussion about this issue.

Despite the authors’ identification of sexual violence as a public health problem and numerous recommendations about the need to develop comprehensive education and bystander intervention strategies to prevent sexual violence, the title of the article labeled all of these children and youth as perpetrators and the text continued this labeling of children and teens.  Included in this perpetrator label was the 2% who completed rape as well as kids as young as 12 who “kissed, touched, or made someone else do something sexual when the youth knew the other person did not want to.”  The authors also noted that “few perpetrators experience consequences:  only 2 percent reported being arrested,” and then continued to describe the need to enhance detection and investigation of sexual violence cases.  By their own definition, many of these cases, even if reported, would not be legally considered sexual violence and these children and adolescents would not be considered perpetrators.  In our opinion, this speaks to the need to include other forms of intervention and accountability when speaking about children and young teens who cannot be reported for their sexual decisions.  These teens clearly need to be accountable for their actions and require instruction about the importance of consent and how to negotiate these sexual questions with peers. 

Since the publication of the article just over a week ago, the media latched onto the descriptions of these youth as “perpetrators” with article titles such as 10 Percent of U.S. Youths Cause Sexual Violence:  Females are just as likely to be perpetrators as males; 1 in 10 Young People Have Perpetrated Sexual Violence; and Sexual Violence Common Among Adolescents (e.g. http://www.medicaldaily.com/nearly-one-10-american-youth-has-committed-sexual-violence-greater-prevalence-among-whites-upper; http://news.nationalgeographic.com/news/2013/10/131007-sexual-violence-rape-teenagers-sociology/; http://www.slate.com/blogs/xx_factor/2013/10/08/one_in_10_young_americans_has_committed_sexual_violence_new_study_finds.html).  

Not only does the media response reinforce the incorrect focus on these youth as “perpetrators,” there was blatant misinterpretation of the data which was then communicated to the public as fact.  One of the more egregious examples of this was the statement that “females are just as likely to be perpetrators as males” – this conclusion was taken from the discussion about age of first perpetration which indicated that, prior to age 18 or 19, the majority of perpetrators were male and it was not until age 18 or 19 that the split between male to female perpetrators was nearly equivalent.  This does NOT translate that females are just as likely to commit rape as males. Rather, it indicates that, when a female in this sample first “engaged in perpetration”, the female was more often 18 or 19 at the time rather than the younger ages of 12 to 17.  And, for these females, the “victim” was also most likely to be older, which again speaks to the concern about whether these young women understand the concept of consent, victimization, and power in sexual relationships.  The data also clearly indicated that females engaged in perpetration behavior at a lower rate than males (attempted rape: n = 43, 35 were male; completed rape: n = 18, 13 were male), not that they are “just as likely to be perpetrators as males.”

The language used by the authors significantly impacted the message they provided and/or how it was perceived by others.  If our intent is to prevent sexual violence, then our words need to be framed in a way that allows people to begin a conversation about the behaviors we are trying to stop.  In our writing and our publications we need to begin to describe the behaviors that children and teens may engage in, rather than label these youth as “perpetrators.”  In a popular publication of the Association for the Treatment of Sexual Abusers, an overview of children with sexual behavior problems is labeled by the behaviors and not “child perpetrators.” If the focus is on behavior rather than the label, those in a position to intervene will be much more likely to say something or do something when they see behaviors that concern them.  Imagine if this article and others that follow were to use a true public health approach that focuses on and describes behavior – the media will then be unable to respond just with shock, but will instead need to begin to ask: what is the responsibility of adults, and society, to stop the first time perpetration of these behaviors. 

Katie Gotch, M.A.
Coordinator of Public Affairs 
Association for the Treatment of Sexual Abusers

Joan Tabachnick, M.A.
DSM Consulting
Chair, ATSA Prevention Committee

SVP Risk: Challenging “Likely to Reoffend"

“…existing research indicates the vast majority of sex offenders, including those with a relatively high sexual recidivism risk, can be safely managed in the community.”

Dr. Grant Duwe

Research Director, MN DOC

With those words and supporting research, Grant Duwe has made it more difficult to justify sexual offender civil commitment (SOCC). Duwe is the Research Director of the Minnesota Department of Corrections – the source of most of the SVP clients at the Minnesota Sex Offender Program (MSOP). This new research [1] might provide the strongest empirical evidence to date that the gateway into SOCC should be a little tighter, and the exits out could safely be a little wider.

Duwe’s research briefly stated: Duwe administered the MnSOST-3 to 105 men under SOCC at MSOP (about 15% of the census). He applied the results to data from other recidivism studies to arrive at an estimated rate of future reoffending (assuming SVPs were immediately and unconditionally discharged). The outcome projected that, after four years, about one in ten men would reoffend. Using extrapolation and the more sensitive measure of arrests, rather than convictions, Duwe estimated that over ten years (an additional six years) one more SVP in ten would reoffend. When he extended his estimates out over 50 years (effectively the lifetime for most offenders), he determined that in the subsequent 40 years another 10% would reoffend, for a total 50-year recidivism rate of 30%. Duwe concluded that, in their lifetime, seven in ten released SVPs would not reoffend.

When he applied the same data to the higher threshold of conviction (rather than arrest) rate, he determined, in their lifetime, four out of five (82.4%) SVPs would not reoffend. He went further in making adjustments for guys[2] who had reoffended but not been arrested, and still determined the overwhelming majority of SVPs in the sample would not reoffend.

Duwe’s research projects lifetime recidivism (re-arrests) of 28%, but notes that with estimation error and a CI of 95%, 50-year (lifetime) recidivism has a lower bound of 21.4% and an upper bound of 35.7%. With some measure of successful treatment, applications of RNR principles, and prudent post-release monitoring and supervision, Duwe’s research supports a lower actuarial risk of SVP reoffending than widely believed. On an individual basis, some dynamic variables may be mitigating, while others could be aggravating. Still, at face value, this outcome calls into question one of the fundamental criteria for SOCC: establishing “likely” or “highly likely” to reoffend.[3] This question of semantics was at issue in a recent case before the Minnesota Court of Appeals. [4]

With the controversies swirling around the use of certain diagnoses to establish the “mental disorder” requirement for SOCC, concerns about the dynamic nature of “volition,” and indications that most actuarial risk tools tolerate a high level of false positives, Duwe’s research further confounds efforts to sustain a sound empirical basis for SOCC.

Other recent research supports the contention that actual recidivism for SVPs is much lower than public perception or other actuarial predictions. In 2012, Robin Wilson, Jan Looman, and their colleagues published research [5] reporting 3.2% - 5.5% recidivisms for recently released SVPs. The study had a short follow-up period (2.5 years), but in that time, 14 of 253 (5.5%) men released from the Regional Treatment Centre [6]had reoffended, and only one out of 31 guys released from the Florida Civil Commitment Center had reoffended. The offenders in the Wilson et al. (2012) study were selected for their completion of treatment, but the results indicate that reoffending for these SVPs are consistent with low rates of sexual reoffending found in other studies.

There are some SVP recidivism data published in the annual surveys of the Sexual Offender Civil Commitment Programs Network (SOCCPN). Not all SOCCPN members contribute data to the annual survey, and the compiled results have an anecdotal quality to them, but with about 17 of 20 SVP states reporting outcomes, the annual surveys of programs have some empirical basis. The 2011 Annual Survey reports that 75 more men had been fully released and there was no reported sexual or non-sexual recidivism. The 2012 Annual Survey reported that four clients were known to have sexually reoffended out of an apparent total of 159 discharges. The latter survey did not indicate the time period for which those four clients had been released.

In a 2011 review of SOCC in the state of Virginia, it was reported that, of the 78 clients on conditional release since the program’s inception in 2003, three (4%) have reoffended.[7] The same report cites SVP recidivism rates ranging from zero to five percent in six other states. The Virginia report indicates that some reoffending was of a technical nature, further illustrating some of the problems with recidivism data. Even with some ambiguity around outcome data, it would seem reasonable to conclude from these studies that there is a low incidence of sexual recidivism, even among SVP clients.

In the interests of accuracy, there is research reporting much higher rates of sexual reoffending among certain groups of sexual offenders, but if it is older research, it may simply be outdated. From 1990 to 2002 the three year reconviction rate for sexual offenders in MN dropped from over 16% to under 3%. [1]   More recent research from the MN DOC reveals a four-year reconviction rate of 2.8%,[8] which is consistent with data from other states.[9]  With some actuarial risk tools able to distinguish risk factors that correlate to reoffending, some sexual offenders can be determined to be at higher actuarial risk for reoffending, but the point remains that sexual offending and reoffending has dramatically declined in the last two decades,[10] and the data herein indicates that trend appears to also hold for high-risk sexual offenders.

Duwe raises important questions about public polices with regard to sexual offending and the cost of crime control. Actuarially, if ten guys were released from MSOP today, four years from now nine of them will have not reoffended. Is that acceptable risk management? Some would argue that reducing sexual abuse at any cost is in the public interest, but public officials have a responsibility for cost-effective public safety. With the 2013 cost of SOCC in Minnesota, Duwe’s research supports the contention that actuarially, the public cost of preventing one in ten SVPs from reoffending over four years is $4,750,000. [11]

With 95% of all sexual offenses being committed by first time offenders [12], sexual abuse professionals agree that we need to do a lot more on the side of preventing first time offenders. Is it a good allocation of public funds to spend $4.75M to try to stop one known offender from possibly reoffending?  It seems investing $4.75M in broad sexual abuse prevention efforts might save a great many more future victims from harm.

Given public intolerance for any incidence of sexual offending, a prediction of one in ten guys reoffending over four years will not sit well with many. Duwe’s estimate of “only” three in ten SVP clients reconvicted over 50 years may be of little comfort to the general public, but the courts, in their need to reconcile “likely” to reoffend, may take another view of this research.

Those that have been following the MSOP saga know that there has been only one guy that has remained conditionally released out of almost 700 clients over nearly 20 years. No one has ever completed the treatment program and, if current conditions hold, clients are far more likely to die at MSOP than be released. [13]  This description is not to lay blame on the doorstep of MSOP, but rather to illustrate the overwhelming sense of hopelessness faced by MSOP clients, and a mandate for MSOP staff made ineffectual by unresolved competing interests. SVP programs elsewhere in the US face comparable challenges.

The oldest SVP program in the US, in the state of Washington, was under federal oversight from 1994-2007.  In 2012 the federal courts also intervened in Minnesota, certified all clients at MSOP to be part of a class-action lawsuit, and signaled that immediate changes are needed.  Some changes are in the works, but the executive and legislative branches of Minnesota’s state government would be wise to recognize the opportunity to take stock of Duwe’s research.

Duwe has provided empirical support for a more effective balance between prudent public safety and effective management of SVPs. His report is consistent with recommendations found in the 2011 report from the MN Office of the Legislative Auditor, and with the December, 2012 report from the MN SOCC Advisory Task Force. To be sure, not all the clients at MSOP should be immediately released into the community, but Duwe has documented that there is every reason to believe that the low base rates for sexual offending broadly, would also inure to SVP programs.

Principles of Risk-Need-Responsivity have empirical support for guiding the treatment and management of sexual offenders; there’s every reason to believe it would also be useful to guide SOCC. Courts might be able to use the option of a judicial stay of commitment or order less restrictive alternatives, when appropriate - perhaps community-based residential programs or outpatient programs as in Texas and other states. Outpatient or aftercare programs can track SVPs with active GPS, to help ensure public safety. Good supervision and monitoring combined with proven support programs such as Circles of Support and Accountability offer alternatives to secure detention for SVPs.

Duwe has quite credibly documented that a majority of the clients at MSOP could be safely managed in the community. If those who currently control SOCC in Minnesota and other states ignore the relevance of Duwe’s compelling research, it is quite likely that the state and federal courts will not.

Jon Brandt, MSW, LICSW

Note: Dr. Duwe has given permission to publish his email address if readers have questions about his study or would like a copy of his research: grant.duwe@state.mn.us

 

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[1] Duwe, G. (in press). To what extent does civil commitment reduce sexual recidivism? Estimating the selective incapacitation effects in Minnesota. Journal of Criminal Justice; online 7/5/2013. http://www.sciencedirect.com/science/article/pii/S0047235213000482

Abstract: This study examines the selective incapacitation effects of civil commitment on sexual reoffending among 105 Minnesota sex offenders who were civilly committed between 2004 and 2006. The Minnesota Sex Offender Screening Tool-3, a sexual recidivism risk assessment instrument, was used to estimate what the four-year sexual recidivism rate would have been for these offenders had they been released to the community. Integration of Survival with Quality of Life (iSQoL) software was used to extrapolate the survival curves over a 50-year period to develop a lifetime sexual recidivism estimate. If the 105 civilly committed sex offenders had been released to the community, an estimated nine percent would have been reconvicted of a new sex offense within four years. Civilly committing these offenders therefore likely reduced the overall four-year sexual recidivism rate by 12 percent. The results further suggest that if these offenders had been released to the community, an estimated 28 percent would be rearrested for another sex offense within their lifetime. To better align the costs of civil commitment with its public safety benefits, states operating these programs should emphasize the use of intermediate alternatives in the community for a more positive return on investment.

[2] There are over 4,200 men in SVP programs in the US and appear to be fewer than ten females (SOCCPN, 2012); male pronouns and references are not only appropriate, but because virtually all sex offender studies have male cohorts, some studies may not be valid with females. Some guys enter SOCC directly from the juvenile system, before they get a chance to be “men.” More than 50 guys at MSOP do not have an adult sexual offense.

[3] Assuming statutory recidivism risk estimates are intended to be absolute (rather than relative).

[4] In Re: the Civil Commitment of Cedrick Scott Ince. http://mn.gov/lawlib/archive/ctapun/1303/opa121691-031813.pdf

[5] Wilson, R. J., Looman, J., Abracen, J., & Pake, D. R. (2012). Comparing sexual offenders at the Regional Treatment Centre (Ontario) and the Florida Civil Commitment Center. International Journal of Offender Therapy and Comparative Criminology XX(X) 1–19.

[6] Canada does not have SOCC; the Regional Treatment Centre is for treating higher risk offenders.

[7] Review of the Civil Commitment of Sexually Violent Predators (2011). Joint Legislative Audit and Review Commission, Commonwealth of Virginia; November 14, 2011. http://jlarc.virginia.gov/meetings/November11/SVP.pdf

[8] Of the 1,653 sex offenders released from Minnesota Prisons between 2004 and 2006, 47 (2.8 percent) had been reconvicted of a new sex offense within four years of their release from prison. (Duwe, 2013) at p. 14.  Among the 220 sex offenders released from prison during the 1990s, by the end of 2010, 41 (18.6 percent) had been reconvicted of a new sex offense. Among the 261 referred offenders who were not committed, 17 (6.5%) were reconvicted of a new sex crime within four years. Of the 1,392 offenders who were reviewed but not referred, 30 (2.2%) reoffended within four years. (Duwe, 2013) at p. 15.

[9] Recidivism among sex offenders in Connecticut, State of Connecticut, Office of Policy and Management, Criminal Justice Policy & Planning Division, February 15, 2012; at p. 5.

http://www.ct.gov/opm/lib/opm/cjppd/cjresearch/recidivismstudy/sex_offender_recidivism_2012_final.pdf
In 2005, 746 offenders who had served a prison sentence for a least one sex-related offense were released or discharged from prison. Over the next five years:

· 27 (3.6%) of these men were arrested and charged with a new sex crime.

· 20 (2.7%) were convicted for new sex offense, and

· 13 (1.7%) were returned to prison to serve a sentence for a new sex crime.

[10] Jones, L.M., Finkelhor, D., & Halter, S. (2006). Child maltreatment trends in the 1990s: Why does neglect differ from sexual and physical abuse? Child Maltreatment, 11, 107-120.

[11] Duwe estimates one SVP in ten would reoffend in four years. The cost of keeping ten SVPs at MSOP for four years at a per diem of $326, for FY 2013 (https://edocs.dhs.state.mn.us/lfserver/Public/DHS-5939-ENG), would be calculated at: $326 x 365 x four years x 10 SVPs = $4,759,600.

[12] Sandler, J.C., Freeman, N. J., & Socia, K. M. (2008) DOES A WATCHED POT BOIL? A Time-Series Analysis of New York State’s Sex Offender Registration and Notification Law; Psychology, Public Policy, and Law, 2008, Vol. 14, No. 4, 284–302.

[13] At least 24 guys have died at MSOP (SOCCNP, 2012), furthering clients’ perception of endless therapeutic goals that don’t credibly lead to release.