HOW PRECISION IN LANGUAGE CAN HELP PREVENT SEXUAL ABUSE

Primary prevention of sexual abuse involves targeting root problems to prevent the abuse from occurring in the first place. This article will summarize why I believe it is important to discuss the popular but imprecise belief that someone who holds a sexual interest in children is eventually going to commit a sexual offence against a child.

Virtuous Pedophiles is an organization with the goal to reduce the stigma most pedophiles experience by popularizing one fact that most of the public does not know (or at least acknowledge): that a number of pedophiles do not commit a sexual offence. As I discussed in my Nextgenforensic article, most of us overlook the key distinction between the term ‘pedophile’ and ‘sex offender against children’. That is, pedophiles are those who hold a sexual interest in children whereas sex offenders against children are those who have committed a sexual offence against a child (see here for more information on pedophilia). Not all pedophiles are sex offenders and not all sex offenders against children are pedophiles (for an interesting review, see Seto, 2008).

I recently had the opportunity to speak to the co-founders of Virtuous Pedophiles, Nick Devin and Ethan Edwards (pseudonyms). The Virtuous Pedophiles online forum currently has over 600 members and, as noted in their website their “…highest priority is to help pedophiles never abuse children.” Nick and Ethan were kind enough to answer a few questions on the impact of imprecise language and future directions for clinicians, researchers, and policy makers in this field.

ON THE IMPORTANCE OF LANGUAGE

Labels influence peoples’ views and perceptions (for review, see Harris & Socia, 2014 and Janke et al., 2015). Both Nick and Ethan highlighted several reasons for why it continues to be important to be explicit in distinguishing between pedophiles and sex offenders. For example, Nick pointed out the negative impact of the public’s habit of equating pedophiles to sex offenders: “[m]any pedophiles believe themselves to be evil as a result of attractions that they did not choose, even if they don't act on those attractions.  Many are depressed as a result; some are even suicidal”.

Negative public views not only means pedophiles are stigmatized, but also that some pedophiles do not seek help from professionals because of their fear of being discovered. As Nick pointed out, more precise language can change public perceptions and even laws. “I think the source of the hatred is the failure to distinguish between pedophilia and sex offending.  People just are not aware that a great many pedophiles successfully resist their sexual attractions.  If enough people became aware, I think the hatred would be reduced.  Pedophiles would be more willing to get the help they need, and fewer children would be sexually abused.”

 

IMPLICATIONS FOR KEY STAKEHOLDERS

1) Clinicians and Policy Makers

There are a lot of improvements needed to expand services to pedophiles and, ultimately, to aid in the primary prevention of child sexual abuse. I asked both Nick and Ethan what clinicians and policy makers in the field can do to help pedophiles lead more productive lives without offences. Both had important points, which I provide below.

Ethan: “Clinicians can do several things. One is to learn the true mandated reporting requirements in your jurisdiction... Treat pedophiles as people with a difficult life problem, not just as potential molesters. You have been trained for empathy and respect for your clients, and extend that to pedophiles -- especially those who have done nothing wrong. Do not abruptly terminate therapy without providing a referral. Accept that pedophilia is a sexual attraction that was not chosen. Do not try to eliminate the attraction, but help clients work around it and feel OK about themselves as long as they do not harm others. Often pedophiles have no trouble controlling their behavior, but want help with leading a worthwhile life. Knowing that you will never know sex or love, and knowing that everyone would hate you if you told them who you truly are -- these alone are understandable causes of distress.”

Nick: “With respect to policy makers, they need to look at the mandatory reporting rules.  These rules require therapists to report a patient if they think the patient is a danger is to a child.  The rules are well intentioned.  Of course we want to protect children from abuse.  The problem from the pedophile's perspective is that the rules are vague.  No one knows what a particular therapist will consider dangerous, and the consequences of being reported are so severe (e.g., social ostracism) that many people who need help don't go to therapists due to fear of being reported.  Dr. Fred Berlin of Johns Hopkins University use to see a large number of non-offending pedophiles as part of his practice.  He reports that pedophiles stopped coming in for treatment when Maryland adopted mandatory reporting rules.  Dr. Hans Beier runs a program called Prevention Project Dunkelfeld in Germany, which encourages pedophiles to come forward for treatment.  He has said that the program would not be viable in the United States due to mandatory reporting rules.”

As policy makers, it is important to acknowledge the deleterious effects of mandatory reporting law. Overly restrictive laws results in pedophiles not getting the help that may have preventing them from abusing a child. It is true that as clinicians, we are limited by the mandatory reporting laws in our jurisdictions. If you live in a restrictive jurisdiction, which requires you to refer someone who reports a sexual interest in children, it is important to note that there are an increasing number of anonymous online resources available to your client (which I summarize here). Unfortunately, not all clinicians currently do this, as Ethan pointed out:

 “…some researchers have said that most sex offenders commit their first offense when they are desperate and feel they have nothing to lose. Yet when some explicitly seek help, they are told that no resources are available to them unless they have committed an offense.”

 

2) Researchers

As a researcher, I was particularly interested in what researchers in the field can do to help primary prevention efforts. Here is a summary of interesting projects that hold important implications, as suggested by Nick and Ethan.

• Develop a best practices treatment module and disseminate that information to therapists who see pedophiles.

Nick summarized the state of affairs, which highlighted the current uncertainty in our field. Specifically, some researchers/clinicians believe pedophilia can be changed whereas others believe that, like other sexual orientation, pedophilia cannot be changed and, instead, must be managed.

“We hear from a lot of pedophiles who see therapists and they report different approaches.  Some therapists say you should try very hard not to fantasize about children.  Others say not to worry about that and focus on strengthening strategies to prevent abuse.  Some try to change a pedophile’s sexual interests to make them attracted to adults.  Others say this isn't possible.  Some therapists are right on this and others are wrong.  Who is right?  What is the best way for the therapist to proceed?”

 

A recent article by Müller and colleagues on the subject elicited a number of Letters to the Editor, which highlights the controversial nature of this debate (for those wanting a snapshot of the debate, there is a radio broadcast on the subject). More primary studies are required, and a review article would be useful in providing direction to clinicians.

• More research on non-offending pedophiles.

Ethan noted “it would be great if there was research on non-offending pedophiles. It is very difficult to study us because we have such a strong motivation to stay hidden. Perhaps anonymous surveys could be formulated with enough protections to convince celibate pedophiles that they really are safe in responding. Representative-sample community surveys could include questions about attraction to children -- why don't they?”

Such studies are certainly doable. Online surveys now allow for anonymous participation. That is, surveys can be created to ensure that no identifying information is collected, such as IP addresses. In addition, b4uact provides help to researchers hoping to recruit self-identified pedophiles. Increasing research on non-offending pedophiles (e.g., the Dunkelfeld group) can improve our understanding of this group of individuals. Census data certainly would be the gold standard, but at least in Canada, we are reducing the scope of census questions (though there is an active debate as to why we should not). Countries with more flexibility in their census survey could provide worthwhile contributions to this field with the simple addition of two questions: (1) Have you ever felt sexually attracted to a child under the age of 12? (2) Have you ever had sexual contact with a child under 12 when you were over the age of 16? The answers to these two questions would provide a robust estimate on how many people with a sexual interest in children actually offend.

• Summary of mandatory reporting laws.

As Ethan pointed out “Pedophiles assume the worst about mandated reporter laws, wondering if just admitting an attraction to children will get them reported”.

 

A summary of mandatory laws for Canada and states in the USA (as well as other countries) would be a useful tool for any pedophile seeking help, as well as clinicians wondering about the scope of mandatory reporting laws. Access to these summaries may mean that more pedophiles would seek help and, as such, would be a worthwhile project.

CONCLUSION
Ethan offered a simple way forward: “One simple starting point is for every person who hears "pedophile" to ask: Is this a celibate pedophile or an offending pedophile? And if the allegation is towards a pedophile, treat it with the same skepticism you would if the same allegation is made against a non-pedophile.” As university professors, we can teach this to our undergraduates. As researchers, we can make sure to be explicit in our publications. As clinicians, we need to be aware of the distinctions between those living with pedophilia and sex offenders, as well as provide help to the best of our ability given our respective mandatory reporting laws. As policy makers, we can teach this distinction to politicians, as well as highlight the harmful effects of mandatory reporting laws and other policies on prevention efforts.

 

One final thought: we can better prevent sexual abuse if we provide pedophilic individuals with the necessary support and resources. However, it seems that common stumbling blocks (e.g., mandatory reporting law, fear of self-identifying as a pedophile) are due to the popular but imprecise belief that someone who holds a sexual interest in children is eventually going to commit a sex offence against a child. As highlighted by surveys and research studies now available, being a pedophile does not mean you are bound to commit a sexual offence. Indeed, whereas pedophilia likely is not a choice (e.g., studies here and here), committing a sexual offence is a choice, and one that a number of pedophiles do not make. Of course, we can do much more to prevent child sexual abuse, as highlighted by my conversation with the cofounders of Virtuous Pedophiles. One seemingly simple step has to due with being more precise in our use of language.

Kelly Babchishin, Ph.D. is a Banting postdoctoral fellow (CIHR) at the University of Ottawa’s Institute of Mental Health Research and the Karolinska Instutet in Stockholm, Sweden. Kelly’s doctoral dissertation examined change in acute risk factors of sex offenders; her current research involves identifying causal candidates for the onset of sexual offending. Her other research interests include online sexual offending, pedophilia, and risk assessment.

 

We do not forgive. We do not forget. Expect us.

The above is the partial sign off of the now infamous Anonymous 'hacktivists'. In their early days the group pursued online attacks as a form of non-violent protest, essentially striking back at anyone they perceived to be an enemy of freedom (Poulsen, 2011). These strike backs were usually in the form of distributed denial of service attacks (DDoS) that were designed to disrupt the communications of targeted websites. Whilst the group have been portrayed as an open source brand of radical protesters, their name in recent years has been used in other related ‘causes’, most recently for snuffing out paedophile rings.

The Telegraph, in January 2015 published the headline: "Anonymous hackers turn fire on global paedophile menace" (Telegraph, 2015). However, this is not the first time that this vigilante brand of online activism has turned its attention to indecent images of children. Operation DarkNet was the group’s first campaign against online paedophilia in October 2011.  The group recognised that child sex offenders (CSA) were becoming increasingly Internet savvy and had begun to mask their online identity through ToR. Anonymous used the same technology to shut them down. Additionally, they targeted the web host ‘Freedom Hosting’ accusing it of knowingly hosting indecent images of children. 

In 2011 a discussion ensued as to whether Anonymous were now a force for good, a champion to sanitise our online space. In fact, a poll commissioned by naked security revealed that just over 81% of voters believed Anonymous did the right thing by shutting down websites that hosted indecent images of children (nakedsecurity, 2011). However, the implications of such unsolicited action did not receive support from law enforcement and child protection experts who criticised them for compromising existing investigations by preventing police from gathering the necessary evidence for successful prosecutions and by inadvertently putting more children at risk.

The new mission of 2015, named “Operation DeathEaters” is designed to expose international paedophile networks in the wake of the Westminster child abuse scandal and allegations of institutional cover-ups. Anonymous states the objective of Op DeathEaters is to achieve an independent, internationally linked, victim-led tribunal or inquiry into the trafficking and “paedosadism industry” (Telegraph, 2015). This could in fact garner greater public support than its predecessor because evidence reveals that when Anonymous activists expose the shadowy workings of the state they tend to make the most impact on wider society (Coleman, 2012).

There is no doubt that sexual offending is a devastating crime and one that is currently capturing worldwide media attention, with an almost daily digest of tales of historical child abuse involving celebrities, or institutional abuse that has taken place in a range of settings. Sexual offending behaviour results in a magnitude of complex issues not only for the victim and the offender, but also for wider society as a whole. What media reports like that in the Telegraph don't tell the public is that there is no 'usual' or standard pathway whereby someone will 'become' a sexual offender. We have no idea how many people access child abuse images, but what evidence from convicted offenders does reveal is that they are heterogeneous group (Quayle, 2004).

Child abuse images online and also chat groups/forums may have removed some of the barriers that previously discouraged some people from pursuing their sexual interest in children. However, the function of abuse images and their relationship to contact offending remains unclear.  Therefore, we need to question whether crusades like the one instigated by Anonymous actually do anything to prevent child sexual abuse from occurring in the first place. In debating this issue what we need to be careful of is not to lose sight of the victim in the imagery - the child who has been abused. Essentially, what must be remembered is that the computer is the tool. Sexual offending against children predates the evolution of Internet technology. What we must address is the behaviour, it is by addressing offending behaviour in an evidence based way that children will be protected.

For the general public, child sex abuse is a highly emotive topic with 'knowledge' and misinformation usually emanating from the media. The simplistic undifferentiated approach to sexual offending that is presented is a risky strategy and could in fact dissuade those who want to seek help for their behaviour coming forward to support organisations. Undoubtedly though sexual offending is an issue that the media will continue to pay attention to and, one that society expects will be dealt with. The impact and repercussions of "OpDeathEaters" remains to be seen. What we can be certain of at this stage is that these net vigilantes will not prevent child sex abuse, they will not protect children, nor will this vendetta address offending behaviour. If the ultimate goal is to make society safer and to protect children then it is evidence based practice that must be adopted, rather than vigilantes developing their own crusades which will ultimately be detrimental for the whole community.

Ruth McAlister, Ph.D

University of Ulster, UK

References

Coleman, G. (2012) Beacons of Freedom. Available online at:

http://www.indexoncensorship.org/2012/12/beacons-freedom-hacking-anonymous/

(accessed 3/2/15)

Naked Security (2011) Did Anonymous hackers do the right thing? https://nakedsecurity.sophos.com/2011/10/24/lolita-city-and-other-alleged-child-porn-websites-attacked-by-anonymous/ (accessed 31/1/15)

Poulsen, K. (2011) Anonymous  raids, feds work from list of top 1,000 protesters. Avialable online at:

http://www.wired.com/threatlevel/2011/07/op_payback/ (accessed 27/1/15)

Quayle, E. (2004) The Internet: Potential problems and pathways to hands-on sexual offending, in M. Calder (ed.) Child Sexual Abuse and the Internet: Tackling the New Frontier. Dorset: Russell House Publishing

Telegraph (2015) Anonymous hackers turn fire on global paedophile menace. Available online at:

http://www.telegraph.co.uk/news/worldnews/northamerica/usa/11363303/Anonymous-hackers-turn-fire-on-global-paedophile-menace.html (accessed 31/1/15)

Q&A with Andrew J. Harris, co-author of “What’s in a Name? Evaluating the Effects of the ‘Sex Offender’ Label on Public Opinions and Beliefs”

Harris, A. J., & Socia, K. (2015) What’s in a Name? Evaluating the Effects of the “Sex Offender” Label on Public Opinions and Beliefs. Sexual Abuse: A Journal of Research and Treatment. ifirst http://sax.sagepub.com/content/early/2014/12/24/1079063214564391.abstract

Abstract

Particularly over the past two decades, the terms sex offender and juvenile sex offender (JSO) have attained increasingly common usage in media and public policy discourse. Although often applied as factual descriptors, the labels may evoke strong subconscious associations with a population commonly presumed to be compulsive, at high risk of re-offense, and resistant to rehabilitation. Such associations, in turn, may exert considerable impact on expressions of support for certain policies as well as public beliefs and opinions about adults and youth who have perpetrated sexual offenses. The current study systematically evaluated the impact of the “sex offender” and “JSO” labels through series of items administered to a nationally stratified and matched sample from across the United States. The study employed an experimental design, in which one group of participants (n = 498) ranked their levels of agreement with a series of statements utilizing these labels, and a control group (n = 502) responded to a matched set of statements substituting the labels with more neutral descriptive language. Findings support the hypothesis that use of the “sex offender” label strengthens public support for policies directed at those who have perpetrated sexual crimes, including public Internet disclosure, residency restrictions, and social networking bans. The “JSO” label is demonstrated to produce particularly robust effects, enhancing support for policies that subject youth to public Internet notification and affecting beliefs about youths’ propensity to re-offend as adults. Implications for public policy, media communication, and research are explored and discussed.

Could you talk us through where the idea for the research came from?

It was a product of a fortuitous opportunity, some general concepts we had kicking around, and a few magical pints of Guinness.  

The opportunity came from the UMass Lowell Center for Public Opinion, which fields an annual internet panel survey of U.S. adults and solicits faculty proposals for submit question batteries to be included in the survey. When the 2014 RFP came out, Kelly Socia and I started brainstorming survey ideas related to sex offender management policy. We met up one evening at the Old Court, an Irish bar in downtown Lowell, with our colleague Josh Dyck, a political scientist who co-directs the Center.  At some point, the conversation shifted to the use of survey experiments in public opinion research - we began thinking that some sort of experimental manipulation might contribute to the literature on public perceptions toward those who have committed sex offenses.  I’m not completely certain, but I think the idea of focusing the experiment specifically on the effects of the “sex offender” label ultimately came to me the next morning in the shower.

The survey has produced some great data — beyond the items we developed for the experiment, we have collected survey data related to citizen perceptions of sex crimes, registry usage, beliefs about policy, and trust of research evidence.  We hope to have analyses from some of those results published over the next year.   

What kinds of challenges did you face throughout the process?

Methodologically, this project was fairly straightforward - we were very fortunate to have a turn-key method of data collection and a reasonably clean and manageable dataset that required minimal recoding.   We were also able to meet our analytic goals without employing terribly complex methods.   Our biggest challenge, I think, related to developing a cohesive explanatory framework to ground the study.  Our hypotheses concerning the possible effects of the “sex offender” label were mostly driven by gut intuition — our challenge was to identify the relevant strands of research and theory to support these hypotheses and to ultimately frame our results in the context of the broader literature.  We ended up drawing on insights from psychology and behavioral economics related to heuristic processing, and from political science and public opinion research focused on framing effects.  Our reviewers and our action editor Michael Seto offered some very helpful feedback that was instrumental in refining our thinking related to our theoretical assumptions and our explanations of our results.  

What kinds of things did you learn about co-authorship as a result of producing this article?

Although Kelly and I have done some work together and exchanged ideas over the past couple of years, this was our first significant collaborative effort.  As I mentioned, this study is just one part of a larger undertaking, and we have adopted a kind of “divide and conquer” approach.  I think we each bring something unique to a project such as this. I’ve been analyzing and thinking about public policy issues for a long time, and am pretty comfortable with mixed methods research - sort of in a “jack of all trades, master of none” kind of way. Kelly is light years ahead of me in terms of methodological sophistication - there is stuff that we are working on that there is no way I conceivably do only own.  We also have been working with Josh Dyck on some of the follow-up research, and it’s been particularly exciting to be able to draw upon his expertise and alternative theoretical perspectives he brings as a political scientist as a scholar of public opinion.   

What do you believe to be the main things that you have learnt about the labeling of sex offenders, and what are some implications for practitioners?

It’s no great revelation that labels carry significant weight in how we think about certain groups - and there’s been some really interesting work done related to the language and narratives of sex offender legislation.  Some commonly employed terms, such as “sexual predator,” carry strong metaphorical overtones - their use in political and media discourse is designed to evoke fear and dread, and their overuse can produce some less-than-optimal policies.   Most of us in the research and practice communities implicitly recognize the power of such labels, and we bristle when we hear them broadly applied to the universe of people who have committed sexual offenses.   

The term “sex offender” is different -- we have come to treat it as a value-neutral descriptive term for a person who has committed a sexual offense.  We use it all the time in the context of research and practice, often without giving it second thought.  Yet our study suggests that the effects of this label are not benign — evoking the term “sex offender” seems directly associated with levels of support for more restrictive and punitive policies, and the term “juvenile sex offender” seems to have particularly pronounced effects on how citizens view youth who have sexually offended.  For practitioners, researchers, and anyone engaged in policy work, we need to recognize that these terms are far from neutral in their effects. 

The Minnesota Sex Offender Program: Federal Intervention Part 2 – The 706 Expert Report

This opinion piece is the second of a three-part series on the Minnesota Sex Offender Program (MSOP).  On February 9, 2015, at the US District Courthouse in St. Paul, a federal trial is scheduled to determine the constitutionality of MSOP.  Part 1 discussed some of the issues and concerns that led to the federal trial.  Part 2 reviews the 2014 report from a team of experts appointed by the Federal Court to examine the program.  After the conclusion of the trial, and the court has issued its ruling, Part 3 will review the decision and discuss implications.

To understand why not a single individual, out of more than 700 clients at MSOP, has been able to gain full release from sexual offender civil commitment (SOCC) in Minnesota over the last 20 years, it is important to understand that MSOP is the program component of a larger system.  To help understand the problems at MSOP and distinguish them from the systemic problems, and to provide professional expertise on therapeutic aspects of this federal lawsuit, US District Judge Donovan Frank appointed four sex offender treatment experts, under Rule 706 of the Federal Rules of Evidence, to help guide the Court.

 At a Federal Court hearing on 12/18/2013, Judge Frank announced the appointment of the 706 Panel: Naomi Freeman works for Forensic Services at the New York State Department of Mental Health and leads the SIST Unit, which manages non-secure civilly committed individuals.  Mike Miner is a Professor and Research Director of the Program in Human Sexuality at the University of Minnesota Medical School.   Deborah McCulloch is the Director of Wisconsin’s SOCC program.  Robin Wilson was the Clinical Director at Florida’s SOCC program from 2006 to 2011, during which time there was a class action lawsuit and settlement.  All four experts are members of ATSA.

 Judge Frank commissioned the 706 Panel to complete a review of MSOP, and ordered the State to provide the Panel members with unfettered access to MSOP clients, staff, and records.  The 706 Panel was not tasked with completing a “peer review,” per se, but more accurately to examine the program, interview clients and staff, probe systemic influences, and essentially try to determine why clients were not getting out of MSOP.  The 2014 examination of MSOP by the 706 Panel is perhaps the most thorough independent review of MSOP ever commissioned.  The findings in the Panel’s 108 page Report (11/17/2014), are largely consistent with previous reviews.  Problems with MSOP and the overarching system were the subject of a 2011 Report from the Minnesota Office of the Legislative Auditor, a 2012 review of MSOP by a Program Evaluation Team, and a 2013 Report by the Minnesota SOCC Task Force. 

 To be sure, there are systemic problems with SOCC, but the 706 Panel also found significant problems with MSOP, as a program.  While the Panel Report gives credit to many areas of strength at MSOP, numerous findings of the 706 Panel are of concern.  The Panel Report explains how more than 700 clients have gotten mired in treatment at MSOP, and offers scores of constructive recommendations.  The 706 team brings vast professional experience and credibility to their review of MSOP and the SOCC system.  Their knowledge, insights, and candor makes the 706 Panel Report highly informative.  The entire report should be considered a “must read” for anyone who works with SVPs.

 The 706 Panel Report: A Critical Review

(Note: bullet points are direct quotes from the Panel Report)

 

It is important to acknowledge that a central problem at MSOP has been the difficulty with attracting sufficient experienced, qualified personnel, especially clinical and psychiatric staff.   At one federal hearing, Dan Gustafson, lead attorney representing MSOP clients, expressed that the State was shortsighted in putting MSOP’s main facility at Moose Lake, a rural part of Minnesota where it is difficult to attract personnel in large numbers.  Gustafson quipped that the State could have bulldozed the Metrodome and put MSOP in downtown Minneapolis but the State chose, instead, to build a new stadium there.  He went on to explain that, if the State is going to use SOCC, the State has to solve this personnel problem; inadequate staff, for whatever reasons, has real consequences to MSOP clients.   

 The 706 Panel raised many concerns about MSOP treatment and treatment targets:

 

•      … the MSOP’s narrow focus of training and attention on treatment for problematic sexual behavior likely contributes to a culture wherein mental health disorders are not appropriately identified or understood by many MSOP staff, including clinical staff. (p.15)
•       There appeared to be little recognition and understanding of the complexity and heterogeneity of the problems and issues presented by clients committed to the MSOP. (p.17)
•       … it appears that clients are over-diagnosed, especially given the prevalence of numerous paraphilic diagnoses. (p.58)  
•        …the Panel observed in client records that psychological assessments… appeared to have little effect on identifying treatment targets, therapeutic goals, phase placement, or responsive intervention strategies. (p.26)  
•        Clinical staff and clinical supervisors do not appear to be supported or encouraged to appropriately modify the treatment offered in order to appropriately respond to the individual and complex needs of these clients. (p.45)
•       Many of those with intellectual disabilities likely did not pose a significant risk to the public at the time of their commitment… they are likely to flourish with appropriate programming in less restrictive residential settings… (p.22) 
•        … it appears that treatment progress is currently impeded by unrealistic expectations for client behavior… the current conflation of privilege and treatment progression exacerbates an already hostile environment… (p.70) 
•       with specific reference to suicidal and parasuicidal behaviors, it was the Panel’s impression… that these potentially serious behaviors are too often minimized by staff as attention-seeking or bad behavior for secondary gain. (p.54)   
•       The Panel expresses grave concerns for the personal safety of vulnerable clients. (p.8, 56)

 

The Panel was particularly concerned about MSOP’s inability to obtain adequate psychiatric services for clients:

 

•       Psychiatric care at the MSOP is currently inadequate to meet the needs of its clientele. (p.8, 49)  
•       Some clients were so psychiatrically decompensated and disorganized in thought… that they may never be able to meet the established criteria to progress through the phases of treatment. (p.44) 
•       By providing inadequate psychiatric treatment, many clients are being inappropriately served by MSOP… The Panel was particularly concerned about the use of long periods of isolation in rooms in secluded units, which are used in response to aggressive, threatening or self-harming behavior. (p.55)   
•       … SMI clients are unlikely to benefit from the MSOP as it is currently designed… (p.18)

      The Panel used some strong language to express concerns about the more than 60 clients who were committed to MSOP on the basis of juvenile-only offending,

 

•          The Panel opines that the majority of these individuals with juvenile-only offending should not have been civilly committed in the first place and, if they had been appropriately assessed, they would not have met criteria for commitment. (p.14) 
•           Specifically, assessments of MSOP clients with juvenile-only sexual offense histories often included reference to diagnostic and risk assessment tools designed specifically for use in the assessments of adults. (p.41) 
•           As such, it is the opinion of the Panel that the majority of individuals in this subgroup would be eligible for discharge. (p.14)

      The Panel Report offered many observations about clients being mired in the program. 

 

•       The 2012 MSOP Evaluation Report (Haaven, McGrath, & Murphy, 2012) notes that the program has experienced difficulty moving clients through the treatment phases… promoted a culture of learned helplessness, in which staff and clients alike have come to believe that phase advancement leading to community discharge is a virtually unattainable goal.  These same observations were made by the Panel. (p.35)   
•       … there are many clients not participating in treatment at Moose Lake, including numbers who are reported as technically in treatment through their signature on a consent form, but not… engaged. (p.54)   
•       … it was difficult to discern how long clients had been in the current treatment phase or why some clients were not participating in treatment.  (p.53) 

      According to a 2013 MSOP report, approximately 100 clients had withdrawn from treatment.

 

      Clients not completing the program at MSOP is, in part, because the exits are effectively blocked by legislative, executive, and judicial constraints on the SOCC system.

 

•          Currently the legislative framework appears to make transfer to even CPS almost impossible and appears to effectively prevent provisional or unconditional discharge. (p.77)  
•          The Panel recommends that firm timeframes be established in which the court system… needs to make decisions regarding discharge.  Currently, the process can take years to complete – in which time clients may decompensate due to feelings of hopelessness.  (p.6)

 

      The 706 Panel was particularly critical of too few clients at MSOP being able to get to the exits.

 

•          The Panel very strongly recommends that MSOP administration ensures that discharge planning begins on admission. (p.6) 
•          In comparison to most other SOCC programs, in which periodic reviews of civil commitment status are conducted on a periodic basis… it is unusual and of great concern to the Panel that assessments of this sort are only completed at MSOP when a client is actually petitioning for release… (p.33) 
•          It appears that lower risk offenders are being civilly confined within the MSOP at a higher rate than in other states. (p.74) 
•          … there are individuals currently committed who likely do not meet commitment criteria. (p.75)
•          … there is nothing in current policy or procedural guidelines to prohibit MSOP from proactively filing petitions for CPS, provisional discharge, or unconditional discharge for clients who merit such placements – they just don’t do it.  (p.78) 
•          MSOP administration has an ethical obligation to release individuals who no longer meet the criteria for SOCC in order to ensure that client civil liberties are protected… (p.69)

 

      Clients getting stuck in treatment phases is largely an internal matter, within the control and discretion of MSOP clinical and administrative staff.  In August 2014, Judge Frank wrote (p.34), “The Court notes its growing concern that MSOP is perhaps not doing its part to make sure that people are properly placed in various phases of its program…”  The 706 Panel expressed similar observations.

 

•          … clients seem to spend an unnecessary length of time in Phase Three prior to progression to CPS [Community Preparation Services] …  This delay seems to be a result of a pervasive belief on the part of MSOP administration and staff that it is not their responsibility to proactively petition and rigorously advocate for clients to advance in phases and to CPS. (p.44)

 

      After 20 years, only about 3-5% of more than 700 MSOP clients are in the final stage of treatment prior to Conditional Release.  If today there were 100 or 200 clients who had completed secure treatment, and MSOP staff were advocating, however unsuccessfully, for the conditional release of clients to be treated in the community, it would be clear for all to see that it is simply “politics” blocking the MSOP exits, and fault for a “clearly broken” system could be dropped solely on the steps of the State Capitol.  But to a great extent, clients at MSOP have lost faith in both the program and the system.

 

•          Generally, clients want the court to know that they are desperate and that their only hope is that someone in a position of authority will recognize their collective experience… and do ‘something’ to ‘fix it.’  Many clients have been in treatment for 15 years or longer…  Sadly, some elderly clients expressed grave concerns that they would die at MSOP. (p.47) 

 

      Since MSOP was established 20 years ago, approximately 30 clients have died while confined.  Many clients are infirmed; the oldest current client is 92.

 

      The Panel, however, is also critical of the entire SOCC system in Minnesota. 

 

•          …the emotional climate at Moose Lake [MSOP] is replete with negativity, despair, and hopelessness. (p.52) The MSOP climate is characterized by high levels of learned helplessness and hopelessness, both on the part of the clients and the staff.  (p.13). 
•          The majority of other SOCC states have successfully released clients to community conditional release programs within reasonable timeframes, with few documented sexual or violent reoffenses. (p.67) 
•          … the Panel believes that the legal representation received by clients is insufficient. (p.78) 
•          Clearly, there are issues to be addressed in making MSOP the best program… [but] the current legislative commitment and release framework would continue to call into question whether the intent is to provide treatment… or the intent is to provide for a lifetime of confinement for certain people who have sexually offended. (p.79)

 

      While some might think that the authors have “cherry-picked” the Panel Report for disparaging quotes, the full report, is actually more critical than noted herein.  While the Panel Report described many program attributes at MSOP, the Panel was commissioned, essentially, to help determine whether the concerns raised in the petition to the Federal Court had merit.  Program strengths and beneficence, while important, will not offset unconstitutional conditions of confinement, if such conditions are found.   Prior to the 706 report, Judge Frank wrote, “Time and again, professional assessments have identified grave deficiencies in the program.” (p.68)  Now, the 706 Panel Report largely echoes the findings of previous reports, and substantially corroborates complaints brought by MSOP clients, and the concerns of many stakeholders.

 

      The State created a complex SOCC scheme that “captures too many people and keeps too many of them too long” (SOCC Task Force Final Report, p.1), and a release process that “appears to effectively prevent provisional or unconditional discharge” (706 Panel Report, p.77).  Judge Frank’s February 2014 order suggests that the Federal Court will simplify criteria for confinement at MSOP, “Today, the Court finds that it is constitutionally mandated that only individuals who constitute ‘a real continuing, and serious danger to society,’ may continue to be civilly committed to MSOP.  If the evidence demonstrates that MSOP systematically continues to confine individuals who are not ‘a real continuing, and serious danger to society,’ then such confinement will be held unconstitutional.” (p.66)

 

      In his February 2014 order, Judge Frank also wrote, “If the evidence requires it, the Court will act… The politicians of this great State must now ask themselves if they will act to revise a system that is clearly broken, or stand idly by and do nothing, simply awaiting Court intervention.” (p.68-69)  Unfortunately, but not surprisingly, all three branches of State government have been unable, or unwilling, to equitably manage SOCC.  In a 8/11/14 Federal Ruling, Judge Frank wrote, “It is obvious that but for this litigation [clients] would likely have languished for years in the prison-like environment of MSOP-Moose Lake, without any realistic hope of gaining [freedom].” (p.34)  And most recently, in a Federal Ruling on 2/2/2015, Judge Frank wrote, “At a minimum, the evidence has shown that, to date, the executive and legislative branches in Minnesota have let politics, rather than the rule of law and the rights of ‘all’ of their citizens guide their decisions.” (p.42)

 

      It takes great judicial and political courage for any judge to issue a ruling of “unconstitutional.”  Such rulings are typically controversial, and often subject to appeal – perhaps all the way to the US Supreme Court.  No one knows that better than Federal Judge Martha Craig Daughtrey of the US Court of Appeals for the Sixth District, who wrote an eloquent dissent in the case of DeBoer v. Snyder – the case that sent same-sex marriage to the US Supreme Court in 2015.  Judge Daughtrey expressed dismay with her fellow judges on the Appeals Court who ruled that same-sex marriage should best be decided by the populace and their elected representatives.  Judge Daughtrey disagreed, “If we in the judiciary do not have the authority, indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.” (p.64)  Perhaps Judge Frank is cut from the same cloth.

 

      If those with authority and leadership had recognized the value (and political refuge) of the many previous investigations into MSOP, and heeded recommendations, the State might have avoided this lawsuit.  Blame for the sorry state of SOCC in Minnesota belongs to many. Responsibility for finding and implementing prudent public policies to effectively degrade sexual violence belongs to all. 

 

Jon Brandt, MSW, LICSW

 

David S. Prescott, LICSW

 

      Blog note: This is Part 2 of a three-part series.  After the US District Court releases its ruling, expected in March or April of 2015, Part 3 will review the decision and discuss implications.

The Minnesota Sex Offender Program: Federal Intervention Part 1 – The Challenges

This opinion piece is the first of a three-part series on the Minnesota Sex Offender Program (MSOP).  On February 9, 2015, at the US District Courthouse in St. Paul, a federal trial is scheduled to begin to determine the constitutionality of MSOP.  Part 1 discusses some of the issues and concerns that led to the federal trial.  Part 2 reviews the 2014 report from a team of experts appointed by the federal court to examine the program.  After the conclusion of the trial, and the court has issued its ruling, Part 3 will review the decision and discuss implications.

Three years ago, a group of clients at the Minnesota Sex Offender Program (MSOP) petitioned the US District Court for Minnesota for relief from conditions of incarceration that they claimed were unconstitutional.  A central concern was that the program had then been operating for 17 years, had received more than 700 “sexually violent persons” (SVPs), and not one individual had been able to fully complete the program.  Federal Judge Donovan Frank believed the petition had merit, appointed counsel to represent the plaintiffs, added all MSOP clients as a class, and set into motion a review of both MSOP, as a program, and sexual offender civil commitment (SOCC) in Minnesota, as a system.
 

Also three years ago, this blog called attention to “Doubts about SVP Programs,” raising questions about the legitimacy of SOCC, as least as it has been implemented in Minnesota.  In a federal ruling (2/20/14) Judge Frank wrote that SOCC in Minnesota is “clearly broken,” and suggested that MSOP might be “one of the most draconian sex offender programs in existence.”    Now, a year later, on February 9, 2015, at the US District Courthouse in St. Paul, a federal trial is scheduled to begin to determine whether MSOP and SOCC in Minnesota is unconstitutional.

The authors want readers to know that our motivation in writing this blog is to advocate for the highest standards of practice and policy. We believe advocating for credible and effective treatment for those who have sexually offended, and supporting those who have been victims of sexual abuse, is a not a zero-sum proposition.  We further believe that the issues addressed herein are in the public interest and of importance to all professionals in our field.  Ultimately, a successful recovery for offenders does not come at the expense of victims – it honors victims.  Mandating effective treatment to offenders and protecting everyone’s rights can help to ensure a beneficial outcome for the many stakeholders of sexual abuse: offenders, victims, their families, friends, and society at large.  However, to be credible and constitutional, treatment for offenders must have an end point.  The authors are aware of no bona fide form of treatment for sexual offending that requires twenty years or more to complete.

Given that society considers sexual violations as one of the most despicable crimes against a person, civil liberties for sexual offenders might be among the most unpopular civil rights causes of our time – perhaps of all time.  Since the US Supreme Court ruled, just seven years ago, that sexual offending cannot be subject to capital punishment, the State of Minnesota has effectively accomplished what a vengeful segment of society has long demanded as an alternative to the death penalty – lock up sex offenders and throw away the key.

Since Minnesota reconstituted SOCC 20 years ago, some 740 individuals have been committed to MSOP (including approximately 30 who have died during incarceration).  Only two clients have achieved and survived a conditional release, and no one has been fully discharged.  Effectively, MSOP has a one-way door.

The criteria for release from MSOP has essentially been: completion of treatment, establishment of an aftercare plan, recommendations from MSOP staff and the Special Review Board (SRB), and final approval by the Supreme Court Appeal Panel (SCAP).  Unless a client is released by court order, administrative releases can be politically blocked by the governor. 

Most clients and staff at MSOP understand the intellectual dishonesty of treatment goals that no one has ever completed.  Clients have the impossible choice of “consenting” to participate in treatment and having less than a 1% chance of release, or withdrawing from treatment and having no chance of release.  Staff have the impossible job of trying to maintain client motivation for unending treatment.  To the credit of many, according to MSOP reports, more than 80% of clients participate in treatment.
 

By all accounts, most clients at MSOP sincerely regret their sexual transgressions, are willing to diligently work on attainable treatment goals, and express their desire to be contributing members of society. They also recognize that, no matter how great their efforts or successful their recovery, they will never escape the state label of “sexually violent person” (SVP) or “the worst of the worst.”  While it is easy to be suspicious of statements by sex offenders that they regret their actions, two studies have found that SOCC treatment clients truly believe that treatment is important (Levenson, et. al., 2009, 2014).  However, as it currently exists, MSOP and SOCC in Minnesota is not a level playing field for clients who earnestly want to achieve their release.

In Judge Frank’s 2/20/14 ruling, he warned that if, “Plaintiffs are able to demonstrate that the commitment statutes are systematically applied in such a way as to indefinitely commit individual class members who are no longer dangerous, or that MSOP is administered as a punitive system despite its statutory treatment purpose, Plaintiffs will likely prove up their claims.”  (p.20)
 

The perilous challenges of “preventive detention,” are well understood by Eric Janus, President and Dean of William Mitchell College of Law.  The promises to balance civil liberties with public safety, and the use of preventive detention under the guise of treatment are discussed in Janus’ intelligent, well-researched book, Failure to Protect; American’s Sexual Predator Laws and the Rise of the Preventive State (Cornell University Press, 2006).  Janus reveals the often-deceptive appeal of SOCC, explains the complexity (and failure) of existing public policies to effectively abate sexual offending, and outlines several measures as prudent alternatives to the problematic and constitutionally compromised use of preventive detention.

It is not the case that the State doesn’t know what to do with MSOP; it is a lack of professional courage and absence of political will.  In 2011, the Minnesota Office of the Legislative Auditor published a detailed review of MSOP and a list of recommendations.  In 2012 the Federal Court directed a SOCC Task Force to be convened and make recommendations.  The Task Force released their final report in 2013.  In 2014, a panel of sex offender treatment experts thoroughly reviewed the program and issued their report in November, 2014.

SOCC in Minnesota, and 19 other states, are driven by justifiable public outrage over an unacceptable level of sexual violence in the US.  But sexual predator laws in the US are also rooted in antipathy toward “sex offenders” and pervasive myths about sexual offending - chief among them: that sexual offenders are a homogeneous group of people that can be readily identified, that most sex offenders will reoffend, that treatment doesn’t work, and that experts can accurately identify which individuals are “highly likely” to reoffend – one standard which must be met for SOCC (Brandt, Wilson, & Prescott, in press).

In recent years there is a growing body of literature that creates further doubts about what it means to be “highly likely” to reoffend.  In 2013, Dr. Grant Duwe, Director of Research for the Minnesota Department of Corrections published research which concludes that the majority of clients at MSOP are likely to NOT reoffend, even when actuarial research is extrapolated to “lifetime.”  In 2014, Dr. Karl Hanson and colleagues released their latest research on one of the most prevalent actuarial tool used for SVP assessments – the Static 99R.  Their research strongly supports Duwe’s findings - that sexual re-offending, even among offenders considered at high-risk, has been overstated, and that the correlation between desistance and time/aging is even stronger than previously believed.  Further, Hanson and his colleagues found that re-offense rates decreased with time that offenders lived in the community (as opposed to in institutions).  It seems that the same actuarial research that is used to put many clients under SOCC, now indicates that most MSOP clients will not reoffend.  Whether or not this new research supports a finding that MSOP is operating in an unconstitutional manner, it is clear that SOCC as applied in Minnesota is greatly overreaching.

With no MSOP clients having been released via completion of treatment, many clients are pinning their hopes on a judicial release.  Indeed those hopes may not be misplaced.  In 2014, there was actually one release from MSOP which got little attention, because it was out “the back door.”  For one client at MSOP, a powerful dissenting opinion in the Minnesota Court of Appeals set-up an appeal to the Minnesota Supreme Court.  As a result, his case was remanded to district court.  After splitting hairs on the differences between “likely” and “highly likely” to reoffend, the district court ordered the client released, as not meeting criteria for commitment.     

Judge Frank wrote in his preliminary ruling that the court will not allow clients to remain at MSOP if they do not meet legislative and/or constitutional criteria for confinement.  While the trial has not yet begun, there is much evidence already in record to support the need for a major overhaul at MSOP.  What is soon to be determined is whether SOCC in Minnesota, as applied, is unconstitutional. 

Despite the Federal Court’s admonishment to state leadership to take immediate action to correct course, all three branches of Minnesota’s state government remain in paralysis.  The last two governors have placed moratoriums on administrative releases from MSOP, and the state courts have repeatedly ignored opportunities to step-up judicial oversight.  A few courageous lawmakers have tried to take up the cause, but two legislative sessions have passed without enacting necessary reforms.  

Going into the third legislative session since the Federal Court put Minnesota on notice, the Minnesota legislature has capitulated to a faux chicken-egg dilemma:  the federal court has indicated that the state legislature is the best political body to enact reforms, but reforming MSOP is too politically explosive for elected lawmakers, who would prefer to take political refuge in explicit directives from the federal court.  Metaphorically, Minnesota seems to have approached SOCC with the same lack of foresight of grabbing a wolf by the ears – don’t want to hold on, too scared to let go.
 

In a 8/11/14 Federal Ruling, when Judge Frank could have acted but demonstrated extraordinary judicial restraint, he wrote that, “It is obvious that but for this litigation [clients] would likely have languished for years in the prison-like environment of MSOP-Moose Lake, without any realistic hope of gaining [release].” (p.34)  Several other states with SOCC have a simple criteria for release, consistent with numerous court rulings – clients who no longer meet criteria for commitment must be released.  It appears there may be hundreds of clients at MSOP whose confinements are not supported by squishy criteria for commitment or virtually unattainable standards for release.  By growing indications, it appears that many clients at MSOP could be safely and unconditionally released, and many more clients could be treated successfully in the community. 

Judge Frank wrote in his February 2014 ruling, “To be clear, should plaintiff’s prove up their claims, the statutes as applied and implemented are not likely to survive constitutional scrutiny.” (p.21)  After 20 years of failed attempts at reforms by the State, putting MSOP under the supervision of the Federal Courts is only controversial to those who accept status quo, or believe that “lock them up and throw away the key,” is acceptable public policy.  There is precedence for the Federal Courts to assume control of SVP programs that have run afoul of the US Constitution.  In 1994, the Federal Courts put Washington’s State SOCC program under federal supervision for 13 years.  This federal lawsuit has now made Minnesota ground-zero for the debate about SOCC.  To redirect all three branches of State government, and coordinate all the moving parts of SOCC in Minnesota, it now seems likely that meaningful reforms will require the courage of a Federal Judge and no less than the power of the Federal Courts. 

Jon Brandt, MSW, LICSW

David S. Prescott, LICSW

Blog Note: Part 2 of this three-part series will discuss the 2014 report prepared by four sex offender treatment experts appointed by the Federal Court to review MSOP to try to determine why Minnesota has the highest per capita rate of SOCC in the US.

References

Brandt, J., Wilson, R.J., & Prescott, D.S. (in press). Doubts about SVP programs: A critical review of civil commitment in the US. In B. Schwartz (Ed.), The Sex Offender, Volume VIII. Kingston, NJ: Civic Research Press.

Duwe, G. (2014). To what extent does civil commitment reduce sexual recidivism? Estimating the selective incapacitation effects in Minnesota. Journal of Criminal Justice. Volume 42, Issue 2, March–April 2014, Pages 193–202.  OnlineFirst 2013.  Retrieved from http://www.sciencedirect.com/science/article/pii/S0047235213000482

Hanson, K.,  Harris, A. J. R., Helmus, L., & Thornton, D. (2014). High-Risk Sex Offenders Might not be High Risk Forever.  Journal of Interpersonal Violence. October 2014, vol. 29, no. 15, 2792-2813.

Janus, E. S. (2006). Failure to Protect: America's Sexual Predator Laws and the Rise of the Preventive State. Cornell University Press.

Levenson, J.S. & Prescott, D.S. (2009). The treatment experiences of civilly committed sex offenders: A consumer satisfaction survey. Sexual Abuse: A Journal of Research and Treatment, 21, 6-20.

Levenson, J.S., Prescott, D.S., & Jumper, S. (2014).  A consumer satisfaction survey of civilly committed sex offenders in Illinois. International Journal of Offender Therapy and Comparative Criminology, 58, 474-495.