Effects of Residency Restrictions on Risk and Sexual Offender Re-entry

Last week, a colleague of mine shared a US Department of Justice report on a list-serve to which we both belong (see the report at https://www.ncjrs.gov/pdffiles1/nij/grants/242952.pdf). This report, entitled “An Evaluation of Sexual offender Residency Restrictions in Michigan and Missouri” was completed by Beth M. Huebner, Timothy S. Bynum, Jason Rydberg, Kimberly Kras, Eric Grommon, and Breanne Pleggenkuhle, variously of the University of Missouri-St. Louis, Michigan State University, Indiana University Purdue University-Indianapolis, and Southern Illinois University-Carbondale. As the title suggests, these authors report findings associated with their research into the efficacy of residency restrictions on sexual offender risk and re-entry.

Residency restrictions have been a particularly popular means of controlling and containing sexual offenders in the community. Depending on the jurisdiction, the typical approach is to limit the distance within which sexual offenders can legally be regarding schools, playgrounds, daycare centers, or other places children might congregate. Such restrictions have significant impact on where offenders may live, work, or engage in other activities.

On the surface, such practices seem quite reasonable. If someone has engaged in inappropriate sexual conduct with a child, then the amount of direct or indirect contact they might have with children should be limited or prohibited. However, as yet, such practices have not been subject to much scientific scrutiny. Moreover, of those investigations of residency restrictions completed to date, the findings suggest that there is little or no effect on outcome—sexual recidivism. Indeed, some have suggested that such restrictions may contribute to reduced social and community stability for released offenders (Levenson & Hern, 2007; Mercado, Alvarez, & Levenson, 2008; Socia, 2011; Willis & Grace, 2008, 2009), and that this potentially translates into an increase in risk, not the decrease intended. This study, completed in Illinois and Missouri, adds another voice to the chorus of research suggesting that residency restrictions are having little or none of their intended effects.

In order to complete their research, Huebner and associates identified 1,703 sexual offenders in MI and matched them to 1,703 non-sexual offenders. Additionally, they identified 2,265 sexual offenders and 2,265 unmatched but markedly similar non-sexual offenders. The following are key findings noted in the executive summary:

• There was a decline in the number of individuals living in restricted areas, including near schools or daycare centers, but the differences were not statistically significant.
• Analyses of residential patterns did not support previous research which suggests that residency restrictions would lead to large displacement of offenders to rural areas; however, supplemental analyses in Michigan found that sexual offenders – especially child molesters – moved more often relative to comparable non-sexual offenders after the implementation of residency restrictions.
• If residency restrictions have an effect on recidivism, the relationship is small.
• Given the very low base rate of sexual recidivism (3%), a longer period of follow-up would be required to better consider the long-term recidivism patterns of sexual offenders, particularly as they pertain to sexual offense convictions.

Based on their findings, Huebner et al. concluded that residency restrictions had little effect on recidivism. Additionally, they noted that their analyses provided confirmation that such restrictions may lead to reduced reintegration potential for released sexual offenders. They make several policy recommendations:

• Huebner et al. suggest that jurisdictions consider the use of risk assessment instruments when implementing restrictions as a means to identify those offenders most in need of such measures.
• There is a need to evaluate the length of the residency restrictions, considering the potential value-added to community safety when balanced against offender stability.
• Stable housing services should be the central focus of reentry planning, particularly for sexual offender populations.
• More research is needed on the provision of transitional housing.
• Enhanced research is required regarding residential movement patterns of sexual offenders over an extended period of time.
• Efforts are necessary to develop re-entry programming specific to sexual offender populations.

Huebner et al. also make suggestions for future research, including investigation of how residency restrictions might assist in risk management if implemented with that minority of released offenders who are at higher risk. Additionally, they call for additional research regarding the factors that might influence sexual offender desistance; particularly, if residency restrictions might actually increase risk in some cases. Huebner and her associates also suggest that we need better research regarding the costs and benefits of residency restrictions, including both supervision costs and those associated with relocation and collateral consequences for offenders and the communities in which they reside.

Of course, there are many complicated issues associated with the community risk management of persons who have sexually offended. Where they should live, with whom they live, and in what proximity to potential victims, are clearly topics of popular and legislative discussion. However, this report demonstrates, yet again, that it is important to evaluate the pros and cons of such practices for the various stakeholder groups likely to be affected. While residency restrictions may provide some degree of solace to the community-at-large, it is by no means clear that this solace is prudent, given the findings of studies like this. In my humble opinion, the solution is not likely to be found in severely limiting or ostracizing all sexual offenders, regardless of offense history and level of risk. Rather, we may find that providing support and accountability in exchange for better sexual and self-regulation is an equitable trade (see Wilson, McWhinnie, & Wilson, 2008). Huebner et al.’s suggestion of using standardized means to identify and focus on those offenders who pose the greatest degree of risk is wise, and consistent with what we already know to be so, given the tenets of Risk, Need, Responsivity-based approaches (see Andrews & Bonta, 2010) with which so many of us in the risk management field are already intimately familiar.

References

Andrews, D.A. & Bonta, J. (2010). The psychology of criminal conduct (5^th Edition).Cincinnati, OH: Anderson.

Levenson, J. S. & Hern, A. L. (2007). Sex offender residence restrictions: Unintended consequences and community reentry. Justice Research and Policy, 9, 59-73.

Mercado, C. C., Alvarez, S., & Levenson, J. S. (2008). The impact of specialized sex offender legislation on community reentry. Sexual Abuse: A Journal of Research and Treatment

20, 188-205.

Socia, K. M. (2011). The policy implications of residence restrictions on sex offender housing in upstate, NY. Criminology & Public Policy, 10, 351-389.

Willis, G.M. & Grace, R.C. (2008). The quality of community reintegration planning for child molesters: Effects on sexual recidivism. Sexual Abuse: A Journal of Research and Treatment, 20, 218-240.

Willis, G.M. & Grace, R.C. (2009). Assessment of community reintegration planning for sex offenders: Poor planning predicts recidivism. Criminal Justice and Behavior, 36, 494-512.

Wilson, R.J., McWhinnie, A.J & Wilson, C. (2008). Circles of Support & Accountability: An international partnership in reducing sexual offender recidivism. Prison Service Journal, 138, 26-36.

Treatment Outcome and the Risk Principle

Two studies of interest to treatment providers are upcoming in the August edition of Sexual Abuse: A Journal of Research and Treatment.

The first is by seasoned Canadian researchers and administrators Mark Olver, Terry Nicholaichuk, Deqiang Gu, and Stephen Wong. It’s an 11-year follow-up of a large national cohort of Canadian federally incarcerated sex offenders using a brief actuarial scale based on the Static-99R. Seven hundred and thirty-two offenders who had completed treatment were compared to 107 who had not attended treatment. They found the greatest treatment effects were among moderate- and high-risk offenders. They also found that older sexual offenders (i.e., 50 or over at the time of release) re-offended at lower rates, but that there was no interaction between age and treatment effects.

Beyond offering more reasons to be cautiously optimistic in providing treatment, the authors make the important point that “entirely static tools can overestimate risk among treated offender groups, particularly moderate or high risk offenders, as reductions in risk cannot be captured by means of static scores” (p. 416). It is encouraging to see these findings in an 11-year follow-up, as it is common to see criticisms of studies as being too brief in their examinations. As a side note, they found that Corrections Canada programs for sexual offenders also produced reductions in violent re-offending.

The other study is by Melissa D. Grady, Daniel Edwards, Carrie Pettus-Davis, and Jennifer Abramson from North Carolina and Missouri. Entitled Does volunteering for sex offender treatment matter? Using propensity score analysis to understand the effects of volunteerism and treatment on recidivism, this study addresses a familiar criticism that treatment outcome studies produce results because only voluntary people participated (selection bias), therefore suggesting that treatment programs are mostly graduating those self-starters who were unlikely to re-offend in the first place. This study took place at the prison-based Project SOAR. From the abstract:

The primary finding is that offenders who volunteered for treatment did not demonstrate any differences in recidivism rates when matched with and compared to inmates who did not volunteer to participate in treatment.

However, the study also found that those who volunteered tended to have lower Static-99 scores (one third of a point, and enough to be significant). Further, findings were mixed as to the effects on violent and non-sexual, non-violent re-offense, and therefor differed from those in the Olver et al. study above.

Perhaps most interesting in the Grady et al. study is their assertion that:

(Our) findings do not provide justification to only provide treatment to those who volunteer and seek treatment. In fact, the findings indicate that clinicians who do so may be using their resources in a way that does not maximize the potential impact of treatment. Recent studies show that a focus on the highest risk offenders, consistent with the risk principle, results in substantially greater returns in risk reduc­tion… By limiting their interventions to only those who volunteer, clinicians may not be accurately targeting those individuals who could ben­efit the most from treatment.

This is an important statement. Many programs, faced with tight budgets, have skimmed only the apparent cream of their potential clients (i.e., those who request it and persuade administrators that they are good candidates for treatment). While many believe that the risk principle (which holds that the most intensive services should be allocated to those who pose the highest risk) means higher-risk sexual offenders should get deep-dish treatment, Grady and her colleagues remind us that beyond thinking about voluntary-versus-involuntary, programs should be treating those who need treatment the most.

Some implications that flow from these studies are that:

·       Treatment programs can and probably should focus on the entire individual as much as possible. Sexual offenders are often more likely re-offend violently and in non-sexual, non-violent ways.

·       It’s time to consider less those applicants who appear most likely to benefit from our services and think more about risk- and assessment-driven treatment based on the principles of risk, need, and responsivity. This can mean favoring some clients who appear even more overtly dangerous, rude, or obnoxious and finding ways to engage them in treatment.

 To these ends, it can be useful to keep the lessons from Circles of Support and Accountability (CoSA) in mind. CoSA began as an approach with particularly high-risk sexual offenders when no other approaches were possible. They would only accept the most dangerous clients, and for their efforts they have seen remarkable gains.  Perhaps it’s time to take that lesson to heart.

David S. Prescott, LICSW

 

 

Failure to Register: Are Violations Overblown?

“As a crime of omission, each failure to report ordinary life events

is an opportunity for registrants to commit a new felony.”

 
Over the last two decades, registration for sexual offenders in the US has become the law of the land. It seems intuitive that tracking known sexual offenders should reduce sexual abuse, but with data indicating that sexual offense recidivism is much lower than widely believed and as many as 95% of arrests for sexual abuse are first time offenders, there are legitimate controversies about the sex offender registry, as well as valid questions about how efficacious it is to register and track known sexual offenders.
 
A growing body of research indicates sexual offender registration is not very effective in reducing sexual offending. There are persuasive arguments that the registry results in more harm than good, especially for juveniles. A number of organizations have been particularly critical of registration for juveniles, most recently Human Rights Watch. David Prescott wrote about juvenile registration in a recent SAJRT blog. Some scholars suggest the sex offender registry is not making society safer but, rather, is the misguided result of government abdication to moral panic.
 
The Sex Offender Registration and Notification Act (SORNA) requires strict registration requirements and includes severe penalties for failure to register (FTR). Many states are not in full compliance with SORNA, in part because of the burdensome cost of compliance and, perhaps, because the classification system required by the Adam Walsh Act is not supported by research. Still, significant public resources are expended to ensure compliance with registration. But, the question remains: is FTR actually a risk factor for reoffending?
 
A 2006 report from the state of Washington suggests that FTR offenders recidivate at a rate 50% higher than compliant sexual offenders. However, upon closer review of that data, five-year felony sexual offense recidivism rates for compliant offenders were 2.8% compared to 4.3% for offenders with FTR citations.
 
Similar low rates of sexual reoffending are well established in the literature. Trending research appears to support the contention that sexual offender registration and notification is not effective in reducing recidivism, and mounting research also indicates FTR does not predict sexual reoffending.
 
These findings are consistent with a 2010 study by the Minnesota DOC that indicates FTR is not significantly related to either sexual recidivism or general recidivism, but is, not surprisingly, a predictor of future FTR. If research continues to confirm these conclusions, it would seem public policies compelling registration are misguided, and severe criminal penalties for FTR are unwarranted.
 
Jill Levenson (with others) has conducted extensive research on FTR, providing compelling evidence that concerns about FTR are broadly unsupported. In a recent post on the listserv of the Association for the Treatment of Sexual Abusers (ATSA—6/5/13, reprinted with permission), Jill wrote this review of most FTR studies:
 

FTR seems to be related to general criminal recidivism rather than sexual recidivism, which makes sense in that it is, for some offenders, about general self regulation rather than sexual deviance. Over time FTR has become the most common recidivism offense for RSOs, probably because it is so easily detected and proven. However, there are a multitude of possible explanations for FTR (especially as registration rules have become more complex): inadvertent or negligent noncompliance, confusion about requirements, poor general self-regulatory or life-management skills, a tendency toward rule violation, and outright rebellion against registration mandates… It is important to know that FTR is not equivalent to absconding…

 

There are NOT 100,000 missing sex offenders as often declared by media reports who inaccurately attribute the statistic to NCMEC and USMS (who also still report 100,000 missing despite knowing that empirical data do NOT come close to supporting this). It is important for all of us to try to correct this myth each time we see it.

 
ATSA member Robin Wilson added that FTR could affect scoring on the (actuarial risk assessment instrument) Stable-2007 for lack of “cooperation with supervision,” and therefore FTR could have some effect on risk tools, but it may not mean much treatment-wise. For professionals who are routinely sampling dynamic risk in clients in a systematic way, there would likely already be indicators that an offender was slipping in the more clinically oriented domains.
 
From my viewpoint in Minnesota, FTR is perhaps the most frequent “new offense” with young men who have to register—an observation supported in the literature. Consistent with Jill’s contention, my sense is that most FTRs are likely the result of disorganization and carelessness, and probably not deliberate avoidance.
 
FTR may, with higher frequencies, snare younger or single guys because such adults are more frequently moving, living with various friends and relatives, changing jobs, attending school, buying cars, traveling, etc. These events might occur dozens of times when young adults are in their teens and twenties.
 
Even first-time FTR can carry severe penalties, with typically some jail time and five or more years being added to an offender’s registration period. The stakes go up for any repeat non-compliance. A second registration error typically results in mandatory incarceration and the potential of lifetime registration. Most violators are prosecuted under state laws, but FTR might also be a federal crime.
 
FTR is a crime of omission. Because registerable events are inherently benign, unlike say the commission of accessing child pornography or using illicit drugs, it is easy for registrants to be less than appropriately cautious about the omission of FTR. Registration may seem akin to completing a change of address card for the post office but, of course, of immeasurably greater import. As a status offense, each failure to report ordinary life events is an opportunity for registrants to commit a new felony.

How and why are registrants non-compliant?
 
It is not just important to understand how registrants are non-compliant, but to more closely examine why. Juveniles can get lulled into not thinking about registration because while they are on juvenile probation it is common for adults or probation agents to maintain a juvenile's reporting requirements. Adults would be wise to strongly encourage juveniles get into the habit of self-reporting registry updates.
 
It is likely that registration is not an easy discussion for registrants to have with unknowing family and friends. It’s also a tough topic for new relationships. It may be necessary to coach guys on how to explain registration—especially to housemates—so offenders don't avoid registration for fear of social consequences.
 
Many registrants have offenses that are revealed in public records, making it difficult to get a job or qualify for an apartment. Most offenders will be banned from public housing, apartment complexes, or on-campus housing. These restrictions may result in even more frequent changes in housing or employment than is common for young adults.
 
In locales with both registration requirements and residency restrictions, independent housing might be unattainable. Registrants who don’t have a permanent address need to know how to properly register in their jurisdiction. Homeless registrants typically must report weekly to local law enforcement. Each week is another opportunity for non-compliance.
 
For registrants who can find housing, a frequent lapse is not having their names on an apartment mailbox (or being barred from doing so because they are not named on a lease). Compliance letters requiring an offender to reply are often undelivered, and are returned to state compliance authorities by the US Post Office marked as “addressee unknown.” In such cases the registrant doesn’t even realize such letters were returned, constituting non-compliance.
 
A final recommendation to mitigate consequences of FTR: The burden of proof for compliance is on the offender. Registration updates via US mail typically leaves the offender with no personal proof of timely compliance. Registrants would be well advised to personally deliver registration updates to local authorities (typically a law enforcement agency, if/when that’s an option), ask someone in authority to sign and date the registration update form, and retain a copy.
 
Regardless of how offenders register, they would be wise to maintain a file folder with a copy of every registration, creating a personal history of compliance. Such documentation may become a “get out of jail free” pass for offenders that need to prove compliance, or at least demonstrate their track-record of conscientious effort. Perhaps some jurisdictions will offer an online registration option for offenders to maintain a history of registry updates, assuming registrants are not restricted from using the Internet.
 
FTR is not simply “failing to register” but, perhaps, most often the failure to register in a timely manner. Recently one of my clients was 10 days late registering a change in employment. Unable to offer an acceptable excuse, he was sentenced to six months in jail, five years probation, and five years was added to his registration period. His last offense was when he was 14. He was first put on the registry at age 15, for 10 years. One year short of his first registration expiring, he is now an adult felon, and the event restarted his original registration period. In Minnesota, incarceration, for nearly any reason, resets the registry clock back to zero. If he maintains perfect compliance for 15 more years, he’ll graduate from the registry when his son graduates from high school, if he’s allowed to raise his son.

FTR: unjust and misguided public policies
 
If FTR does not contribute to risk for sexual reoffending, and risk diminishes with age, then lengthy periods of registration are not really reducing recidivism or making communities safer. Being required to register for decades is, in reality, retribution with interminable opportunities for FTR. Prudent public policies are compromised when violations of the “civil” requirements of registration carry severe criminal penalties so damaging that offenders may never recover.
 
The social challenges attached to being a “sex offender” and FTR by proxy, are extensive, insidious, and unrelenting. Just when offenders believe conscientious effort and time will eventually put the “SO” label and stigma behind them, one mistake can result in felony FTR becoming lifelong evidence of a previous registerable offense—even if it occurred as a juvenile. With felony FTR, most guys will never wake up from the subsequent housing, employment, and social nightmares. Compromised stabilities undermine the pro-social principles of Good Lives and other well-established tenets of recovery.
 
The sex offender registry was conceived to help prevent recidivism, but evidence now indicates that it may contribute more to unwarranted public fear than to prudent public safety. Professionals familiar with extant research can help to educate colleagues about FTR myths and facts and, by helping clients to recognize FTR hazards, we can mitigate some of the counterproductive consequences of sex offender registration. Perhaps most importantly, the registry has morphed into misguided public policies that divert limited public resources away from truly productive measures to reduce sexual offending—primary prevention.

 

Jon Brandt, MSW, LICSW

 
References:
 
Caldwell, M.F., Zemke, M.H., & Vittacco, M.J. (2008). An examination of the sex offender registration and notification act as applied to juveniles. Psychology, Public Policy and Law, 14, 89-114.
 
Letourneau, E.J. & Armstrong, K.S. (2008). Recidivism rates for registered and nonregistered juvenile sexual offenders. Sexual Abuse: A Journal of Research and Treatment, 20, 393-408.
 
Letourneau, E.J., Bandyopadhyay, D., Sinha, D., & Armstrong, K.S. (2009). The influence of sex offender registration on juvenile sexual recidivism. Criminal Justice Policy Review, 20, 136-153.
 
Letourneau, E.J., & Miner, M.H. (2005). Juvenile sex offenders: A case against the legal and clinical status quo. Sexual Abuse: A Journal of Research and Treatment, 17, 313-331.
 
Letourneau, E.J., Bandyopadhyay, D., Armstrong, K.S., & Sinha, D. (2010). Do sex offender registration and notification requirements deter juvenile sex crimes? Criminal Justice and Behavior, 37, 553-569.
 
Levenson, J.S., Ackerman, A.A., & Harris, A.J. (2013). Catch me if you can: An analysis of fugitive sex offenders. Sexual Abuse: A Journal of Research and Treatment. DOI: 10.1177/1079063213480820
 
Levenson, J.S., Sandler, J.C., & Freeman, N.J. (2012). Failure-to-register laws and public safety: An examination of risk factors and sex offense recidivism. Law & Human Behavior, 36, 555-565.
 
Levenson, J.S., Letourneau, E., Armstrong, K., & Zgoba, K. (2010). Failure to register as a sex offender: Is it associated with recidivism? Justice Quarterly, 27, 305-331.
 
Levenson, J.S. & Harris, A.J. (2012). 100,000 sex offenders missing… or are they? Deconstruction of an urban legend. Criminal Justice Policy Review, 23, 375–386.
 
Tewksbury, R., Jennings, W.G., & Zgoba, K. (2012). A longitudinal examination of sex offender recidivism prior to and following the implementation of SORN. Behavioral Sciences and the Law, 30, 308-328.
 
Zgoba, K., & Levenson, J.S. (2012). Failure to register as a predictor of sex offense recidivism: The big bad wolf or a red herring? Sexual Abuse: A Journal of Research and Treatment, 24, 328-349.
 
Jill Levenson’s SAJRT guest blog (7/21/11) about the efficacy of SORN.
 
http://www.doc.state.mn.us/publications/documents/03-10FailuretoRegisterstudy.pdf

 

Human Rights and the Juvenile Registry

At a recent training, a conference participant asked whether she should recommend that a juvenile be registered as a sexual offender. “The court is asking me for a recommendation,” she said. Having read the studies in this area by Elizabeth Letourneau, President-Elect of the Association for the Treatment of Sexual Abusers, and others, there was only one conclusion I could offer: There is no support for the registry in building healthier lives or safer communities for anyone. In fact, the fleeting societal comfort experienced when registries first came into being appears to have produced no meaningful results. This is not a controversial statement: the research to date has been clear that registering sexual offenders generally—and adolescents, specifically—does not reduce their risk. In fact, the reverse may well turn out to be true. The registry makes it far more difficult to access education, employment, and housing. Knowing that the safest citizens are those who have access to these and other stabilizing resources, how can we allow these policies to continue?

Human Rights Watch, an international, non-governmental agency that researches and advocates human rights, recently examined and issued a report on the registration of juveniles who have sexually abused. Nicole Pittman was the principle investigator. From the Human Rights Watch web site:

Human Rights Watch believes that no one should be put on registries for sex offenses committed when they were children, absent a judicial determination that the specific individual in question poses a high risk of reoffending; in such cases, they should be put on registries accessible only to law enforcement, and subject to removal when registration is no longer needed. In all other cases, states and the federal government should exempt youth sex offenders from any registration, community notification, and residency requirements.

“Painting all sex offenders with the same broad brush stymies law enforcement’s attempts to focus on the most dangerous offenders and defeats what every parent knows about how children act and how they mature,” Pittman said. “Exempting youth from harsh registration laws would both respect their rights and ability to change and improve public safety.”

The report is important and timely. Professionals and lay people alike should take into account not only this report, but the context in which it has taken place. There is a recent and disturbing trend of policies coming into existence that are only barely constitutional at best. In fact, it is not the first report on sexual offender policies that Human Rights Watch has issued. In some instances, it seems that legislators create laws with full knowledge that courts will subsequently find them to be unconstitutional. For example, in March of this year, the appellate court of Maryland found that retroactive registration of adult sexual offenders violated ex post facto laws of that state’s declaration of rights. Curiously, this did not result in any significant media attention, although it followed similar decisions around the US. Likewise, in Minnesota, a recent media account found a surprising level of opposition to a law intended to improve constitutional aspects of that state’s civil commitment program by creating less restrictive treatment environments. In this instance, a former Chief Justice of the Minnesota Supreme Court had warned of the consequences of doing nothing that, “If the Legislature doesn’t do it, the federal court will.”

As an international organization, Human Rights Watch’s perspective is welcome. All too often, professionals and lay people alike can become so habituated to the status quo that we stop questioning our actions. At a time when surveys indicate that 50% of programs treating adolescents who sexually abuse employ the polygraph, Mark Chaffin (2011) reminds us that the World Medical Association states that an ethical breach could exist for health care providers by simply being present during harsh interrogations. He also suggests exploring a continuum, with clinical interview on one and waterboarding on the other, and asks readers to consider where on this continuum they believe the polygraph to be. Another recent international perspective took place when a High Court in Britain declined to extradite a sexual offender to the US because of their concern that he might be civilly committed to a program from which only two people have been provisionally discharged in 19 years. While it is easy for civil commitment, polygraph, registration, and residency restrictions to fade into the background for those living and working in the United States, it is important to remember that these are actually unusual practices by international standards. Nor is Human Rights Watch the only international non-governmental organization to examine sexual offender policy. Amnesty International has also investigated the used of compulsory anti-androgen medication in the United States and elsewhere.

Even within the United States, efforts by ATSA and other organizations to promote using the registry for juveniles only under the most extreme circumstances, if at all, have been ongoing for many years. The reasons are clear: Adolescents have a low rate of sexual re-offense, particularly when they complete treatment programs (Reitzel & Carbonell, 2006). Studies have found that when adolescents do re-offend sexually, it is much more like to occur while they are still adolescents (Caldwell, 2010). Even our attempts to classify adolescents according risk—while advancing considerably in recent years—are still only moderately predictive and are marked by variability across studies (Viljoen, Beneteau & Mordell, 2012). Ultimately, what works with adolescents are short-term, active interventions such as meaningful treatment and supervision rather than long-term, passive, and potentially destructive actions such as registration.

Getting lawmakers and the public to listen has proved a challenge. At least one study has found that lawmakers are more influenced by media accounts of sexual abuse than by the science of it (Sample & Kadleck, 2008). Although media accounts are increasingly calling into question our policies towards adolescents, Human Rights Watch reminds us of the discrepancy between our values regarding freedom and justice and what we are actually allowing to happen.

Of course, research findings are one matter, communicating them effectively is another. Rather than asking what we should do with young people who sexually abuse, professionals and stakeholders should re-cast the discussion of how we can ensure the best futures for all young people, including those who have been victimized, those who perpetrate sexual abuse, and others affected by it. Society has long had a value that parent should raise children in such a way that they can go on to properly bring up children of their own. Perhaps it’s time to discuss this value and the reality that Human Rights Watch has found. Leaving adolescents in a position where they have intense difficulty gaining education, employment, and housing because of their actions prior to entering the age of majority speaks very poorly of society.

In the end, when international non-governmental organizations are critical of our policies, and lawmakers are motivated by political survival as much or more than by the needs of all their constituents, it’s time to sit up, take notice, and re-examine all of our methods.

David S. Prescott, LICSW

Chaffin, M. (2011). The case of juvenile polygraphy as a clinical ethics dilemma. Sexual Abuse: A Journal of Research and Treatment, 23, 314-328.

Caldwell, M.C. (2010). Study characteristics and recidivism base rates in juvenile sex offender recidivism. International Journal of Offender Therapy and Comparative Criminology, 54, 197–212.

Reitzel, L.R., & Carbonell, J.L. (2006). The effectiveness of sexual offender treatment for juveniles as measured by recidivism: A meta-analysis. Sexual Abuse: A Journal of Research and Treatment, 18, 401-421.

Sample, L.L., & Kadleck, C. (2008). Sex offender laws: Legislators' accounts of the need for policy. Criminal Justice Policy Review, 19, 40-62.

Viljoen, J. L., Mordell, S., & Beneteau, J. L. (2012, February). Prediction of adolescent sexual reoffending: A meta-analysis of the J-SOAP-II, ERASOR, J-SORRAT-II, and Static-99. Law and Human Behavior. Advance online publication. doi: 10.1037/h0093938.

Guest Post by Michael Seto

Federal Child Pornography Sentencing Guidelines in the United States

Michael C. Seto, Ph.D.

Director of Forensic Rehabilitation Research, Royal Ottawa Health Care Group

Author of the forthcoming book, Internet Sex Offenders (June 2013, American Psychological Association)

The United States Sentencing Commission recently released its comprehensive review and analysis of federal child pornography offenses, following a multi-year process involving public hearings, consultations, and analysis of federal case file data. The report has lots to offer interested readers about federal child pornography cases, but I think the following points are particularly notable:

• Though they represent a small number of federal cases, child pornography offender numbers have been growing rapidly over the past decade, and are expected to continue to increase. This increase has put pressure on criminal justice and clinical resources.
• Application of the current federal sentencing guidelines results in average sentence lengths for first-time child pornography offenders that are less than a year shorter than those for repeat child pornography offenders. Moreover, the average sentence length for non-production child pornography offenders is comparable to or longer than for some contact sexual offenses involving minors.
• Presumably reflecting a sense that sentence length is not proportional to culpability (my opinion, not the Commission’s), the rate of judicial departures from the sentencing guidelines has increased steadily over the past number of years, making this offense category stand out from other federal offense categories in terms of variance in sentencing.
• There was recognition that there is a “spectrum of criminal culpability” in child pornography offending and that sentences ought to reflect this continuum, ranging from possession-only offenders to distributors to producers of child pornography. Some witnesses at the February 15, 2012 public hearing on the sentencing guidelines suggested a further distinction between passive distributors, who might allow (inadvertently or purposefully) access to their child pornography content on a peer-to-peer file sharing network and active distributors who communicate with others online and actively engage in the trade of content.
• There was also awareness that sentencing should reflect risk to reoffend, which our meta-analysis suggests is quite low about child pornography offenders, based on initial follow-up results. An unpublished analysis of federal child pornography cases is consistent with the meta-analysis.
• The sentencing guidelines need to keep pace with changes in technology. For example, there is currently a sentencing enhancement provision for offenders who have 600 or more images, to reflect a distinction based on amount of child pornography. The cutoff of 600 is arbitrary and no longer tenable because digital content is much more accessible and easy to store (e.g., through peer-to-peer file sharing). Many offenders have collections in the thousands or tens of thousands, and case law treats video as representing multiple images, such that a single video file could meet this enhancement threshold.

Reflecting these different considerations, emerging research, and case law, the United States Sentencing Commission suggested that the sentencing guidelines should be revised to reflect three primary factors: (1) The content of an offender’s child pornography collection and his (most are men) collecting behavior, including volume, age of depicted children, nature of sexual conduct depicted, and management of collection (e.g., organization); (2) association with other offenders, particularly in online communities of child pornography or other sexual exploitation offenders; and (3) evidence of exploitative and potentially dangerous sexual behavior, including but not limited to prior sexual offenses.

It will be very interesting to see how the United States Congress responds to this report, given the current political and social climates emphasize “tough on crime” stances and a moral abhorrence not only of child pornography offending but any evidence that someone is sexually attracted to children and thus at risk of sexually exploiting or abusing children.