Sex, Politics, Laws, the Courts… and ATSA

 “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.”

Federal Judge Martha Craig Daughtrey

DeBoer v. Snyder, 2014

Sex educator, Dr. Marty Klein recently published a blog titled, “Politics?  I’m Interested in Sex, not Politics.”  His thesis is that sex and politics are inextricably connected, and if you care about rational public policies regarding the management of sexual behaviors, it helps to have a stomach for politics.

There’s a natural tension between complex social problems, public opinions, and laws – perhaps that’s one definition of “politics.”  In a democracy, laws are frequently driven more by public opinion than sound science or constitutional principles.  Some “sex offender” laws seem to be driven by fear, anger, and misinformation, and resemble moral panic more than informed public policies.  When the lag-time for scientific advances takes too long to engender best practices or influence public policies, or when a compelling public interest can no longer justify laws that breach the boundaries of constitutional safeguards, often the courts step in.  Beyond the illustrations that Dr. Klein offers in his blog, there are many examples of laws that are (or were) unwarranted, overreaching, or unreasonably intrusive, and the courts intervened.  Consider these “sexual offenses” of yesteryear.

In 1967, SCOTUS struck down laws that banned both interracial marriage and interracial sex (Loving v. Virginia).   Until 1965 it was against the law in some US states for married couples to obtain prescription birth control (Griswold v. Connecticut).  It took seven more years for that right to be extended to unmarried individuals (Eisenstadt v. Baird).  In 1962, sodomy was considered so offensive that it was illegal in every US state, in some cases even between married partners.  Sodomy laws were reaffirmed by SCOTUS in 1986 (Bowers v. Hardwick), before finally being struck down in 2003 (Lawrence v. Texas).  In 2008, the US Court of Appeals (Fifth Circuit) decriminalized the sale of sex toys (binding in three states).  By 2015, 37 US states had legalized same-sex marriage before SCOTUS determined that neither race nor gender were material to the civil controls of marriage.   Same-sex marriage became legal in the US, ten years after Canada.

In each of the cases above, before they were eventually overturned by the courts, public opinion had at one time supported these laws.  Some would argue that the courts stepped in too soon – others, like Margaret Sanger or Frank Kameny might have said both the tide of public opinion and relief through the courts took too long.  History also reveals that even when courts overturn antiquated laws, controversies remain, and there can still be stubborn pockets of social resistance, or widespread cultural repression tenaciously anchored in historical roots.  Homosexual acts are illegal in more than 70 countries, still actively enforced, and in perhaps a dozen countries, punishable by death.  If not for a 2008 SCOTUS ruling (Kennedy v. Louisiana), some sex crimes in the US might still be subject to capital punishment.

Sometimes, social change makes laws obsolete, and they just fade away, but it is likely that there are still laws on the books criminalizing sexual behaviors (e.g., sodomy, fornication, adultery), which today are unenforced, but leave historical records of public efforts to control interpersonal sex.  Sexual violence will always be intolerable, but sexual violations are a broad category of unacceptable sexual conduct. 

Every US state, and countries worldwide, struggle with civil controls of marriage and age of consent.  In the US and Canada, citizens must generally be 18 to marry, but in Mississippi parties must be 21.  In several states, with parental/judicial approval, kids under 18 can marry - as young as 13 or 14 in New Hampshire, and in five other states there is no minimum age.  Much to the detriment of teenagers, the age of consent for sex is a minefield - around the world.  In the US and Canada, the age of consent is 16-18, with a confusing matrix of exceptions for age differences or factors related to penetration.  In most of Europe, it’s even more difficult to navigate age of consent laws that generally range between 14 and 16.  In China, Brazil, Japan, Mexico, and the Philippines, the age of consent is 12-14. 

Controlling sex has been vexing civilization since prostitution was described as the world’s oldest profession.   While sex trafficking and child prostitution is abhorrent throughout most of the world, tolerance for prostitution around the world varies considerably.  Depending on one’s role in prostitution, penalties in the US carry fines from as little as $100 to as much as $750,000, and from 15 days in jail to 20 years in prison.  Prostitution is legal (regulated) in several counties in Nevada, and some foreign countries.    Around the world, and throughout the US, consensual sex, legal in one jurisdiction, can create a “sex offender” in another.

There is a long history of society’s efforts to control interpersonal sex through criminal laws, but now a proliferation of civil laws have made it easier than ever for one to become a “sex offender.”  With public angst about “sexual offenders,” the courts are playing a pivotal role in trying to maintain balance between veritable public safety and constitutional safeguards around civil regulations.  Competing concerns cannot always be resolved by the courts, but sound science can always help guide the process.  It is noteworthy that numerous ATSA members contributed to much of the research noted below, and/or helped to inform policymakers.  Informed policymaking does not guarantee an outcome of good public policies; but most assuredly, misguided public policies are the product of misinformed policymaking.    

A 2016 decision by the Washington Supreme Court opens the state registry to public view, apparently even for registered juveniles.  Washington has strong public-access-to-data laws, and in 2012, the Ninth Circuit ruled that juveniles can be publicly identified on sex offender registries.  Laws intended for adults have migrated into the juvenile system, with counterproductive outcomes.  The registry has devastating consequences for juveniles.  The registry’s “irreparable harm to youth and their families” has been extensively researched and articulately described in a 2013 report by the Human Rights Watch.  

There is a growing awareness and substantial research that the sex offender registry is overreaching, ineffective, fails communities, and is counterproductive for those in recovery.  There are numerous, ongoing court challenges to the registry, particularly as it applies to juveniles.  In 2012 the Supreme Court of Ohio struck down automatic lifetime registration of juveniles, and in 2014 there was a similar ruling in Pennsylvania.   As the foundation erodes for the 2003 SCOTUS decision (Smith v. Doe) that upheld SORNA, it is likely that the courts will continue to reconsider registration requirements.

Another popular civil control for “sex offenders” is regulating where they can live or go.  While residence or zone restrictions have historical appearances of banishment, about half the US states have statewide residency or zone restrictions.  Research is becoming conclusive:  residency laws are not only ineffective but counterproductive. The media is beginning to recognize the problems with residence restrictions, and laws are continuously undergoing review by the courts. 

In February, 2016 Congress passed International Megan’s Law, which will make international travel for registered sex offenders profoundly difficult, and requires US passports to identify citizens with certain sexual offenses.  The public law was challenged in Federal Court in California.  ATSA filed an affidavit supporting a motion for preliminary injunction; the US Attorney’s Office opposed the motion.  In April, 2016, the motion was denied as premature, but the lawsuit continues.  

Perhaps the most onerous civil regulation that “sex offenders” are subject to is civil commitment.  There have been thousands of lawsuits filed in US courts challenging civil commitment laws.  In 2015, two separate federal courts found SVP programs to be unconstitutional:  MSOP in Minnesota, and SORTS in Missouri.  The state of Minnesota appealed the District Court ruling and Judge Frank’s remedies to the Eighth Circuit.  In April, 2016, the US Court of Appeals in St. Louis heard oral arguments.  A decision from the Eighth Circuit is expected in the summer of 2016, however further appeals are expected.

What do all these criminal and civil laws, past and present, have in common?  Social controls around interpersonal sexual behavior.  The truth is, there has never been a time in history when “sex” could be separated from “politics.”  What does ATSA have to add to sex, politics, laws, and the courts? More informed public policies.

Jon Brandt, MSW, LICSW

Author’s note: The large number of links embedded in this blog are in lieu of a long list of references, and intended to both provide empirical support for assertions, and offer readers an easy opportunity for more information.  Links to court cases are intended to inform readers only about the nature of certain court cases.  Links to research or articles are only a sampling of the voluminous information available on the topics herein.  I would also like to add that, beyond ATSA, there are innumerable professionals, concerned citizens, and organizations, which have contributed immeasurably to the common quest for informed social policies, safer communities, and better lives.  It takes a village.  Comments or corrections welcomed.

PRISM: Promoting Restorative Initiatives for Sexual Misconduct on College Campuses

Sexual violence has been a topic of considerable community and legislative focus for several decades now; however, only recently has its existence on college campuses elicited such attention. Indeed, in 2015 the Obama administration’s Education Department took aggressive steps to address concerns about sexual violence and harassment on campuses, spurring the enactment of “Yes Means Yes” laws in such states as New York, California, and Michigan (with many post-secondary institutions adopting similar standards without legislative mandate).

Title IX of the United States Education Amendments of 1972 states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.  

The original intent of this legislation was to ensure that girls and women in educational arenas would be protected from discrimination and other differential treatment based on gender. An early focus of Title IX was discrimination in athletics, in which female students rarely received the same opportunities to participate and benefit; however, the recent focus of Title IX has been incidents of sexual violence on campus.

As someone who has worked in sexual violence prevention for nearly 32 years, I have been privy to the case descriptions of thousands of incidents of abuse, harassment, and other forms of sexual misconduct; however, almost all within the traditional criminal justice domain. When stories of sexual violence on college and university campuses started to become the subject of high profile media focus, I had to admit that I had never considered those environments as in need of specific attention. It’s not that I somehow didn’t think it was happening on campuses (I had known women who had been sexually assaulted when I was in school), I just assumed that it was being managed like sexual violence in any other environment. Turns out I was wrong, and I needed to do something about that.

Through my work with Circles of Support and Accountability, I’ve attended a variety of restorative justice (RJ) conferences and workshops and met many RJ theorists and practitioners, including David Karp of the Project on Restorative Justice at Skidmore College in Saratoga Springs, NY. Together with Co-Chair Kaaren Williamsen of Swarthmore College in Pennsylvania, David has pulled together a large group concerned academics and practitioners from around the US and Canada – all of whom are concerned about how academic institutions are responding to sexual violence. This month, that group – known as Campus PRISM – released a comprehensive report promoting restorative initiatives for sexual misconduct (PRISM) on college campuses (authored principally by Karp, Julie Shackford-Bradley, myself, and Williamsen). According to the report:

Restorative justice encompasses a range of processes, programs, practices, and policies as well as a philosophical perspective that offers a new approach to addressing the problem of sexual and gender-biased misconduct on college campuses.

It is our belief that restorative interventions can be used for community building to establish appropriate standards of sexual conduct on campus, in addition to reducing fear and counteracting the hostile climate sometimes characterized as “rape culture.” While we do not believe that restorative approaches are appropriate for all instances, we are deeply invested in reducing sexual and gender-based violence by exploring how such approaches could foster healing and provide for greater accountability. To that end:

Campus PRISM promotes restorative justice processes that…

-          Encourage true accountability through a collaborative rather than adversarial process;

-          Reduce risk of reoffending and provide greater reassurance of safety to survivors/harmed parties and the community;

-          Meet survivors’/harmed parties’ needs for safety, support, and justice; and

-          Create meaningful forums for the examination of hostile campus climates and the development of community-building interventions.

Goals of the Campus PRISM Project:

-      Create space for scholars and practitioners to explore the use of RJ for campus sexual and gender-based misconduct (which includes sexual harassment, sexual assault, and other forms of gender-based misconduct) as an alternative or complement to current practices.

-          Consider the potential and challenges of RJ in light of the national concern about campus sexual assault.

-          Apply lessons learned from the use of RJ in criminal justice sex offenses, e.g. Circles of Support and Accountability, restorative conferencing, and other trauma-informed practices.

-          Gather and disseminate knowledge about RJ practice and research.

-          Explore the potential for multi-campus RJ pilots.

A fundamental aspect of Campus PRISM is the belief that restorative justice – including various circle practices – can further a prevention agenda through the intersection of information sharing, education, reflection, and community building. Specific to the issue at hand, circle practices encourage people with various perspectives to sit together in a circle and explore issues related to sexuality. One such circle practice suggested in the PRISM report is the aforementioned Circles of Support and Accountability (CoSA), an RJ-informed initiative in the greater sexual offender risk management domain in which perpetrators have been paired with 4-6 community volunteers who support them in their efforts to remain offense-free and accountable to the community. According to the PRISM report, CoSA could provide opportunities for reintegration following an event of sexual violence on campus:

After an incident has been officially resolved, even when a student has been found in violation and suspended, a restorative approach takes into account the long-lasting impact on the individuals involved and the wider community. Although some students who violate campus sexual and gender-based misconduct policies will require criminal prosecution and/or expulsion from the institution, others will remain enrolled or be allowed to reenter after some period of suspension. Implementation of a restorative approach would provide opportunities for student offenders who return to address their issues in a meaningful and socially accountable manner while providing for enhanced monitoring and service provision.

At present, many colleges and universities are grappling with new mandates and responsibilities handed down by the Office for Civil Rights (OCR), the Department of Education’s division responsible for Title IX enforcement. The consideration of RJ options may not have been a particular area of focus as yet; nonetheless, the report suggests that the following list of next steps could be considered by campuses interested in pursuing a restorative approach:

-          Adopt a restorative lens

-          Create a restorative justice study group/steering committee

-          Develop capacity in RJ through training and facilitation

-          Review and update policies to include restorative justice

-          Promote community awareness

-          Engage in restorative justice research

-          Pilot a restorative approach

In conclusion, the members of Campus PRISM firmly believe that a restorative justice approach to sexual and gender-based violence offers hopeful opportunities to address the concerns of victims, offenders, and the broader educational community. We believe that simple adherence to compliance standards will not be enough to address issues related to healing, student development, and community growth; nor will simple compliance sufficiently promote new perspectives such as those resultant from a comprehensive implementation of restorative principles with attention to prevention, response, and reintegration. Understandably, broad application of RJ principles and practices will take time; however, as capacity grows, campuses can aspire to and reach a goal of true community transformation.

Robin J. Wilson, Ph.D., ABPP

Wilson Psychological Services LLC, Sarasota, FL

McMaster University, Hamilton, ON

What the Maori can teach us about prevention

For years I have heard the term “cultural competency,” but I have finally seen this in action when I met with Joy Te Wiata and Russell Smith in Auckland New Zealand.   I also saw and felt for the first time, the connection between cultural competency and prevention.    Let me explain. 

Background

On a trip to New Zealand I had the good fortune to meet with Joy and Russell and learn from them about their clinical practice focusing on Maori who have sexually abused.  They both are Maori and they explained that while they integrate evidence-based approaches to treatment (e.g., CBT, MST, Good Lives, and narrative therapy) the core of their practice is spiritual. 

Their Approach

We began our journey with a visit to a Marae, a spiritual gathering place where Russell and Joy will often hold their weekend retreats.  They explained the traditional welcoming ceremony where no one may enter the Marae until the female elder invites them in.  The invitation is sung and it is sung to the individual, his (or her) family and to all of their ancestors.  If sexual violence thrives in isolation, the process of invitation immediately provides a protective factor, joining the offenders to all of the people around him/her who care about him/her and to all of the previous generations.  No one enters the Marae alone.  These traditions and specifically, the invitation begin the process of setting clear boundaries and expectations for each person entering into treatment.  Over the course of the weekend, as the traditions and treatment weave together, Joy mentioned that when the weekend is over, it is hard to tell which men have been in treatment for a few days or for the complete cycle – each has learned the most important lessons about respect, boundaries, consent, and responsibility.  When I asked how they do this, Russell told me, “This is difficult work but we sing, we laugh, and we hold each other accountable.”  ‘Waiata’ or singing is a way of calibrating and synchronizing the clients to each other and others, while at the same time lifts their countenance to a place where the challenges and treatment can be heard and retained. Gentle ‘laughter’ is a place where learning and awareness becomes enjoyable and like waiata (singing) reinforced.

Reflections

Throughout my conversation with Joy and Russell, I was struck with how their deep investment in their traditions only enhances the treatment practice.  For example, on college campuses today in the USA, we are talking a lot about consent.  A great video, popular in the UK talks about consent -- consent is like offering someone a cup of tea.  Consent seems so straightforward when it is placed within a tradition we can all understand.  And yet, Joy and Russell are offering even more by also offering a spiritual connection.  When the men are invited into the Marae, they are not only taking on the responsibility for their safety and the safety of the community, they are also offered a gift, right at the beginning of treatment,  the promise that they can become whole again in their family and their community.  It is no surprise then that the programs that Russell and Joy run have the highest retention rates in the country.   It is also no surprise that they had to add in aftercare groups because many of the men wanted to continue with groups even after they had completed the treatment group.  The contrast to the enforced participation within the prison setting was palpable.   

Each man who enters into treatment with Joy and Russell must also have a support person so that the closing ceremonies may involve up to 50 people for a small group as their families and support people join with them in their responsibility to safety and healing.  Joy and Russell support the voices of each of the family members, including the victims of sexual abuse.  They incorporate the wishes of the victim, and when a victim wrote how she loved her stepfather but was not ready for him to come home, they worked with that family and that decision. 

Connection to Prevention

I grew up in a tradition which highly valued learning.  And I had always heard, more often than not, that knowledge is power.  So I was struck by Russell’s and the Maori’s belief that knowledge is responsibility.  When Joy and Russell educate their clients as well as their families, they are also inviting each of them to take responsibility for each other’s safety.  Like the concept of circles of support and safety, the responsibility of the treatment within the Marae encourages people to watch out for each other, to confront behaviors, and to ensure that everyone in the extended family is safe.  In prevention, we all talk about the importance of educating each other about sexual violence.  More recently, I have heard that expanded to educating people about preventing the perpetration of sexual abuse.  However, we know that the one-time only education programs offered in many schools or communities is not enough to change behaviors.  Imagine if each of these education sessions also meant that people were accepting responsible for changing their behaviors, confronting the behaviors of others, and seeking help when that was needed.  This invitation to the treatment within the Marae and to responsibility is one pathway to safety and, ultimately, to prevention. 

Joan Tabachnick