Myth-driven State Policy: an International Perspective of Recidivism and Incurability

• Jurisdiction: United States,Federal,European Union
• Citation: Vol. 47
• Publication year: 2012

47 Creighton L. Rev. 247. MYTH-DRIVEN STATE POLICY: AN INTERNATIONAL PERSPECTIVE OF RECIDIVISM AND INCURABILITY

MYTH-DRIVEN STATE POLICY: AN INTERNATIONAL PERSPECTIVE OF RECIDIVISM AND INCURABILITY

Dr. Mark Kielsgard(fn*)

I. INTRODUCTION

In many countries, state policy regarding pedophile offenders has become driven by media coverage of particularly heinous, yet rare, sex offender cases. This tends to evoke an emotional and disproportional response, which does not necessarily provide greater protection to society. In a twenty-four-hour news cycle, citizens are deluged with reports of the most disturbing nature. These high-profile cases suggest that traditional legal approaches do not work and that children are under constant threat. This results in ever more impassioned calls for reform, usually in the shape of harsher punishment(fn1) and greater post-incarceration restraint of offenders. In some jurisdictions this has resulted, inter alia, in such initiatives as tougher sentencing, open-access sex offender registers, mandatory chemical castration, and indefinite (post-incarceration) mental commitment. In jurisdictions where these responses have not yet been implemented, there is robust debate calling for tougher measures and policy makers are currently scrutinizing these initiatives. There is a clear trend toward more punitive and less rehabilitative responses. Some of these practices have dubious human rights implications. Human rights considerations aside; an anterior question is whether these initiatives are of benefit to society at all or whether they are merely exacerbating the problem.

At the heart of this question are the underlying assumptions upon which public opinion is formed. What tends to underscore emerging state policy are a series of given premises that cannot withstand objective empirical scrutiny. Thus, trends in state management of pedophile offenders are myth-driven. Two highly relevant and erroneous assumptions include: (1) claims that sex offenders, particularly pedophiles, have high recidivism rates compare to other criminal actors; and, (2) claims that sex offenders are not susceptible to mental health treatment and are thus incurable. Both of these suppositions inevitably lead to a policy of indefinite warehousing of offenders and a rejection of rehabilitation. Where some nations, such as the United States, have fully embraced this policy, others, such as Australia and the United Kingdom, have retained varying degrees of flexibility that include harsher sentencing while retaining many rehabilitative measures.

This Article will first address some of the sources of these assumptions and then review meaningful empirical data. Next, this Article will review and critique the literature on recidivism rates in order to shed light on future dangerousness. Furthermore, it will consider the effectiveness of relevant protocols, review the efficacy and modality of treatment methodology, including mental health alternatives, pharmacological intervention, and community placement/stability of offenders. In doing so, this Article will examine models of pedophile/sex offender supervision in several countries and conduct a comparative criminal law inquiry to identify the most successful initiatives, identify emerging trends in state practice, and explore new modalities for reducing recidivism rates.

II. DRIVING THE MYTHS HOME

Since the onset of the CNN twenty-four-hour news entertainment model in the United States, the press has arguably moved away from a journalistic tradition of verification, proportion, relevance, and objective presentation to opinion and sensationalism.(fn2) This model has enjoyed international financial success and has been in place since the 1990s. Innovations such as advanced satellite technology and the construction of the cable television infrastructure have made the model the dominant form of news dissemination in the world today.(fn3) Curiously, the timeline for these changes corresponds to the development of new generations of legislative efforts aimed at reforming the criminal justice efforts regarding pedophile offenders.

In the United States, several high-profile cases have directly led to legislative changes in the treatment of pedophile offenders. In 1989, an offender from Tacoma, Washington, raped a seven-year-old boy and cut his penis off.(fn4) The victim was found "'wandering around in shock, completely nude except for sandals,' [and] 'was unable to speak or cry . . . .'"(fn5) The assailant, Earl Shriner, had a long history of violence and sex offenses. Shriner had been convicted of murder, assault, and kidnapping-all of which involved children aged seven to sixteen-and had been described as "mildly retarded" and as a "defective delinquent."(fn6) He received a 131-year prison sentence for the rape and malicious wounding of the seven-year-old in Tacoma. This case fueled a nationwide public outrage, which precipitated the Washington State Legislature on July 1, 1990 to enact section 71.09 of the Washington Code, titled "Sexually Violent Predators."(fn7) This legislation permitted indefinite civil commitment of those convicted of sex offenses and found to "suffer from" a "mental abnormality" or personality disorder that makes it "highly likely" the person will reoffend if released.(fn8)

The baffling aspect of the Shriner case is that the legislation it inspired would be inapplicable to Shriner himself because he had received a prison term sufficient to ensure that he would never be released into the community again. Shriner's case led to a national trend toward enacting sexual predator laws. Generally, these laws provide that defendants completing their prison term can be held for civil commitment to secure facilities, usually state mental hospitals, because they pose a danger to themselves or others. This is a legal mechanism previously retained by most U.S. states for those mentally disabled person who similarly posed a danger to themselves or others. By relying on the assumption that pedophilia is incurable, this indefinite commitment becomes the functional equivalent of a life sentence.

Indeed, in the recent High Court of England and Wales case of Sullivan v. The Government of the United States of America,(fn9) the appellant claimed that extradition from England to the United States would violate his human rights guaranteed under article 5.1 (denial of liberty) of the European Convention of Human Rights (the "ECHR"). Appellant contended that extradition would act as a denial of liberty because he would be subject to indefinite commitment under the civil code of the requesting state of Minnesota.(fn10) The High Court held that detention under civil commitment would amount to a flagrant denial of article 5.1 deprivation of liberty.(fn11) Of particular relevance was the fact that not one of the 600 persons committed (in Minnesota) since 1988 had been released. Moreover, the High Court found that the Minnesota provision does not require the prospective subject of a civil commitment order to be suffering from a recognized serious mental disorder, but rather more ambiguously from a "sexual . . . disorder ordysfunction."(fn12)

Additionally, other heinous cases in the United States have led to further initiatives and legislation reflecting the assumptions of incurability and high recidivism rates. The 1996 case of Megan Kanka ultimately led the United States to create a fully accessible sex offender registry, in legislation popularly known as "Megan's law," which was fully open to the public. Subsequently, the federal legislation known as the Adam Walsh Child Protection and Safety Act(fn13) was modified and refined "Megan's law."(fn14) The perpetrator in the Megan Kanka slaying, Jesse Timmendequas, admitted to killing and raping Megan.(fn15) Timmendequas told the police he feared Megan would convey to her mother he had touched and attempted to kiss her and that he had offered to allow her to pet his novel puppy to entice her into his house.(fn16) He had raped Megan, beat her, and used a belt to strangle her.(fn17) In addition to intentional murder, the defendant was also convicted of kidnapping, rape, sodomy, and felony murder-the commission of a murder during a felony.(fn18) Timmendequas had two prior convictions for sexual assault in 1979 and 1981 and was sentenced to death in the Kanka rape/murder. Timmendequas's death sentence was later commuted to life when the State of New Jersey banned thedeath penalty.(fn19)

After this highly publicized case, "Megan's laws" began cropping up throughout the United States. These laws provide for full public disclosure of the names...