Welcome to part
2 of our New Year’s blog! In this part we will address what we think are some of
the salient issues facing the sexual harm field as we move into 2016.
Kieran McCartan: The thing that really strikes me, and it’s
something that I have written about on the blog quite a bit in 2015, is the
continued need for cross disciplinary collaboration and looking outside of our
silo. This is really starting to happen now, which is great but we need to do
more. Looking to other areas of psychology, criminology, social policy, public
health, biology and neuro-science [to cite a few disciplines that we have seen
the field of sexual harm successfully utilize] has lead us to some really
interesting places including conversations about prevention, desistence, trauma
informed care, and mindfulness; all of which have really helped our field look
at the population that we work with in a different way. What’s next? What is
the next area of social, human and biological sciences going to bring to the
table? In addition to looking at other research and theories we should also
consider what different disciplines can offer us in terms of new methodologies,
new forms of data analysis and new places to present our data [in terms of
conferences, journals and forums – maybe we go to a specialist conference and
present our work rather than inviting the most amenable to ours]. By embracing
the fact that sexual harm is a topic that can unite us all together as a common
topic of endeavor, rather than isolate us out as a specialist field, we can
make great leaps forward.
As a
research field we have started to move further away from the mainstream of
sexual harm perpetrator to look at female offenders, offenders with learning
difficulties, minority groups and sexual harm and so on. This is great, we are
no longer playing the game of “erase male, white sex offender and replace with
xxxx”, we are really getting into the nuts and bolts of the array of groups
that commit sexual harm and seeing what is unique about them that is different
to the mainstream [as well as recognizing what is the same] which will help us
design treatment programs, risk assessment, management strategies and
prevention plans that are fit for purpose. This is “what works” in action!!
I suppose
that my main point in all of this is “look outside the defined sexual harm
box”, look to other places for inspiration, for knowledge and to see if what we
already know works with everybody that we engage with; as I said before we
already do this but we can do it much more and reap greater rewards because of
it.
David Prescott: In a powerful speech at the Evolution of Psychotherapy conference
in 2009, Phil Zimbardo (principle actor in the infamous Stanford Prison
Experiment and later President of the American Psychological Association)
offered a definition of evil: “When you know better and you still do worse.”
The past 30
years have seen an explosion of science-based knowledge in our field. From
Freund’s pioneering research using phallometrics to the
certificate-of-confidentiality research of Gene Abel and his colleagues that did
much to reveal what people do and don’t get caught for, to the remarkable
Hanson and Bussiere meta-analysis of 1998 and the others it spawned and the
exploration of therapeutic and protective factors offered by Bill and Liam
Marshall, Calvin Langton, James Worling, and others too numerous to mention.
During 2015,
our field saw three sex
offender civil commitment programs declared unconstitutional, two by
federal judges. Perhaps just as importantly, we also saw several world-class
programs (at least two in Canada and at
least one in the USA) shut down or restructured and handed over in
lowest-bid situations. In some cases, programs have opted to use highly
scripted curricula instead of ensuring the effectiveness of each clinician. On
one hand, professionals needn’t be surprised; cost-cutting measures in the
human services are by now familiar. On the other hand, one wonders to what
extent therapists are now finding themselves colonized by curriculum developers
from well outside the circumstances in which they work. Research consistently
highlights the same factors that define evidence-based practice: clinical
experience in combination with the best available research and client
characteristics. In light of these events, can we really say that our field was
better off in 2015 than it was in 2005?
Surprisingly,
these recent events have garnered little discussion within ATSA’s membership.
Recent listserv discussion has centered more on what goes well within these
programs than their shortcomings, with only one suggestion for policy that
might be more effective (and even in that case, the author of the post
expressed concerned that such policy could also be misused for political ends).
One comment dismissed a recent finding of unconstitutionality as resulting from
just “a low level federal judge.” One wonders at what point we should all
become outraged by the public-safety and human rights implications of our
circumstances. How much energy should we spend defending the status quo? Or
should we take more of a stand? Questions abound: how do individuals and
organizations best put their money where their mouth is? Given that so few
policymakers are swayed by actual evidence, how do we influence
decision-makers?
The above
are questions our field has asked for a long time. Perhaps it’s time for new
questions: At what point do we stop accepting the status quo? At what point do
we start to wonder whether we’ve lowered our standards of care? At what point do
we start advocating for the rights of all people in the equation, including our
clients? And at what point do we look in the mirror and ask whether we are doing
worse even as we know better?
Jon Brandt: The dark era of “nothing
works” with sex offenders introduced a false doctrine that today is still
influencing public policy around the treatment and management of sexual
offenders (Mancini & Budd, 2015).
It is now more than four
years since the US District Court for Minnesota agreed to consider the
constitutionality of sexual offender civil commitment (SOCC) in Minnesota. Last June, Federal Judge Donovan Frank
determined that both the program and underlying statutes are unconstitutional. Almost simultaneously, another federal court found Missouri’s SOCC program unconstitutional. In 2015 a Texas state court judge released
the first client from Texas’ SVP program, citing unconstitutional
confinement. A Texas appeals court reversed the ruling and the client was returned to
custody.
These court rulings did not
say that these SVP programs are not providing credible treatment, but rather
that the programs, which have almost no releases, are constitutionally
compromised. Over the last year, David
Prescott and I wrote a series of blogs on the MSOP lawsuit. My personal position is not that SVP programs
shouldn’t exist, but rather that, in many states, SOCC is overreaching and/or
compromised by the failure to effectively move clients through the system.
On 10/28/15 Judge Frank issued an order for constitutional remedies in
Minnesota. On 12/15/15, the US Court of
Appeals stayed Judge Frank’s order. The
Eighth Circuit agreed to hear oral arguments in St. Louis on 4/12/16. What seems shortsighted about the Appeals
Court ruling is that the crux of Judge Frank’s remedies order is that MSOP must
begin evaluations to determine which clients meet criteria for SOCC. Whether or not the rulings of the US District
Court of Minnesota are upheld by the Eighth Circuit, there are hundreds of
clients at MSOP who must be evaluated, and even under Judge Frank’s timeline,
some might not be evaluated until 2018.
Parties to the Minnesota
lawsuit largely agree on one point: there are clients at MSOP who deserve a
reduction in custody or a less restrictive alternative. If that is the case, such clients are being
unconstitutionally incarcerated. Some
clients have been at MSOP for more than 20 years, some are intellectually
disabled, more than 60 are juvenile-only offenders, and some are elderly and
infirmed. The oldest is 93. For over 700 clients at MSOP, the New Year
marks another year that the exits are blocked and clients are caught in an
endless loop of treatment. If Minnesota
is unable or unwilling to comply with a judicial order to evaluate, and
annually reevaluate all 700+ MSOP clients, it would seem that Minnesota’s SOCC
scheme is still on a collision course with the US Constitution, and perhaps a
review by SCOTUS.
In 2008, Eric Janus and
Robert Prentky wrote a twenty-year retrospective on the use of SOCC in the US, arguing
that civil controls of sexual offenders, including sexual offender civil
commitment (SOCC), are misguided and more about moral panic than sound public policies for public safety. Perhaps we should acknowledge what Judge Frank
has referred to as “society’s opprobrium” for sexual offenders – and that, in
many cases, unwarranted civil regulations are impeding, rather than
facilitating recovery of those who have sexually offended. Do such public policies make society safer?
In Part 1 of this blog, I
gave a shout-out to Elizabeth Mustaine and her colleagues for their 2015 journal article on how professionals might be
contributing to misguided polices of civil regulations of sexual offenders, including
residency restrictions, community notification, and the sex offender
registry. When residency restrictions
amount to banishment, there are thousands of juveniles on the sex offender registry, and research
concludes
that the vast majority of sexual offenders (even SVP’s) will not reoffend, it is time to challenge public policies
that are not only unwarranted, but largely counterproductive, if not outright
unconstitutional. Aside from civil
rights violations and collateral consequences, one of the many unfortunate side effects of misguided public policies is that they fuel unwarranted public fear.
When the ethical concerns of working with those who
have sexually offended are so difficult to reconcile with laws, court rulings,
victim rights, public safety, and public opinion (which at times can be at odds
with each other), it seems more important than ever that professionals who work
in the field of the treatment and prevention of sexual harm are current on
research and guided by best practices.
Kieran
McCartan, PhD; David Prescott, LISCW; Jon Brandt, LICSW
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