Journal Issue: Preventing Child Maltreatment Volume 19 Number 2 Fall 2009
Justice System Strategies
Orthodox “preventionists” do not typically favor criminal justice system approaches because they are “tertiary” strategies, applied after the harm has already occurred, and are often expensive. But justice system approaches to sexual abuse have captivated public and policy attention and, for that reason alone, cannot be ignored. Moreover, practitioners committed to their application believe that they have “primary prevention” effects, because in theory the fear of swift, certain, and serious punishment by the justice system will deter the abuse before it happens.
One fundamental problem regarding prevention policy in the justice system is that it is based on an overly stereotyped and generally mistaken characterization of the offender population.13 The stereotype typifies child sexual abusers as exclusively adult men who are sexually oriented to pre-pubescent children (that is, pedophiles) and who thus are strongly motivated to offend. These men are seen as being guileful and skilled in relating to children, likely to prey on children they encounter in public environments, generally resistant to treatment, deterrence, or rehabilitation, and thus highly likely to offend again.
The well-publicized behavior of a worrisome core of offenders has helped reinforce this stereotype. Overall, the sex abuser population is much more diverse and less uniformly insidious and intractable than the stereotype might suggest. First, most abusers are probably never caught, arrested, and convicted,14 which limits generalizations about this population. But among those who are, most are not pedophiles. In fact, about half of all victims are post-pubescent, ranging in age from twelve to seventeen,15 so that most of their offenders would not qualify as pedophiles. Moreover about a third of offenders against juveniles are themselves juveniles (an even larger share of the offenders against young juveniles are juveniles).16 These young offenders are also not pedophiles, but include a mixed group of generally delinquent youth and youth who engage in somewhat impulsive, developmentally transitory behavior.17 Even among adults who victimize children under thirteen, at least a third or more do not qualify as pedophiles.18 The equation of sexual abuse with pedophilia is thus misleading.
The notion that molesters use public venues or approach unknown children is also misleading. Among victims of sexual abuse coming to law enforcement attention, more than a quarter are victimized by a family member, while 60 percent are abused by someone else from their social network. Only 14 percent are victimized by someone they did not already know.19 Also in defiance of the child sexual abuse stereotype, as many as one-third of all adult offenses against juveniles are estimated to involve what have been called “compliant victims” or “statutory sex offenses.” Such offenses involve teens who have quasi-voluntary sexual relationships with much older adults, the dynamics of which can range from manipulation and seduction by the adult to aggressive initiation by the teen.20 These are crimes with negative effects on youth and society as whole, but their dynamics differ from the stereotype of child molesting.21
The belief that child sexual abusers are incorrigible recidivists is also an oversimplication. In reality, the overall re-offense rate for child molesters is lower than that for other criminals. Some studies find that the likelihood of recommitting sex offenses is strikingly low. In Washington state, for example, 2.8 percent of offenders recommitted a sexual offense, and 24.5 percent recommitted any offense over five years. By contrast, other felony offenders had a 48 percent re-offense rate for all offenses.22 Meta-analyses that aggregate the findings of many studies estimate that 14 percent of sexual offenders commit another sexual re-offense after five years, 24 percent after fifteen years.23 Sexual recidivism rates for juvenile offenders and family offenders are considerably lower than the overall rate, while rates for offenders against boys tend to be higher. Child molesters are more likely to be educated and employed than other criminals, which researchers believe may help explain their relatively lower recidivism. In sum, the child sex offender population is diverse. It ranges from a small group with a serious pathology and high recidivism risk to a larger group, including other youth, whose offending may be situational or transitory and who pose a lower risk. Practitioners have available a variety of tools to assess the risk for re-offending. Although these tools are far from foolproof, they perform about as well as any social-scientific prediction instruments and have been improved in recent years.24
The major criminal justice policy initiatives of recent years have set up registration systems for offenders, notified communities about their presence, required background checks for employment and volunteer opportunities, controlled where sex offenders can live, and lengthened their sentences. Less prominent efforts have increased detection and arrest, provided mental health treatment to offenders, and enhanced their integration into the community. Despite wide implementation of these strategies, however, researchers have formally evaluated few of them. Still, some evidence about their success exists, and certain extrapolations can be made from similar policies in other crime domains. In the next section I discuss some of these strategies and the evidence concerning them.
All states now have electronic sex offender registries. One goal of these registries is to allow more rapid apprehension of re-offenders; another is to prevent crime by deterring existing and future offenders. Some observers, though, argue that registration, like a lot of offender management practices, makes it harder for offenders to reintegrate into society and violates the rights of those who have already paid their debt to society, particularly those forced to register retroactively.
Evidence. Registries were implemented during the late 1990s, after crime had already begun declining, making it unlikely that registries are the primary factor in that decline, although they may have contributed. Cohort and case control studies show mixed results, but some have positive, if very conditional, findings. One time-series analysis, for example, found that registration laws had deterrence effects, specifically among offenders who knew their victims or lived near them. But though the study linked registration with reduced offending among first-time offenders, it found increased offending among those who were already registered, suggesting a possible boomerang effect from the stigma (increased difficulty finding jobs and housing, for example).25 Another study looked at offending rates in ten states before and after registration laws had been implemented. Six states saw no statistically significant change; in three, sex crime went down; in one (California) sex crime increased considerably.26 An evaluation in Washington state found lower recidivism rates among offenders who were in compliance with the registration laws than among non-compliant offenders, but the finding may have nothing to do with the effect of registration itself.27 Another study also found a non-significantly lower recidivism rate for registrees, with a greater effect for felons than for misdemeanants.28
Summary. Registration has not been adequately analyzed even by relatively low-quality studies. One can point to a few findings suggesting that registration helps, but also null findings and at least some suggesting negative effects. Analysts have found high rates of non-compliance with registries, and legislatures have recently tried to increase penalties for non-compliance and to bolster enforcement. Before imposing such increased costs in the form of policing and incarceration, however, it would be wise to be more confident about the utility of registration. The issue is complicated by the arguments of some analysts that the public wants to know where sex offenders are, whether or not registration reduces sex crime. These arguments suggest that researchers should also investigate the effects of registration on public confidence in authorities and on the public’s sense of safety.
Although community notification and registration are often implemented and studied together, community notification is in reality a separate policy. Many registries were developed originally as resources for police. Only later were policies developed (promoted by Megan’s Law in 1996) to inform the community in general and neighbors in particular of the whereabouts of offenders. In some states law enforcement goes door to door, makes calls, and posts handbills. In theory such notification allows community members to take steps to protect themselves against specific offenders in their midst. It may also help law enforcement to educate the public about how to protect children in general. Once again, critics say that it may inhibit the reintegration of offenders into society and result in more transience, maladjustment, and deviant behavior.
Evidence. No high-quality studies exist, and the correlational studies have mixed results. A Washington state study found that reoffending fell after notification was implemented but was not able to disentangle the decline from the overall downward trend in crime and other factors.29 A Minnesota study found a significant decline in sex offense recidivism among the highest-risk offenders after a community notification law was implemented.30 A Wisconsin study found no effect of notification on whether offenders were recommitted to prison.31 A New Jersey study found no demonstrable effect in reducing sexual re-offenses; it also found escalating implementation costs.32 Researchers have, though, shown that notification makes families more likely to take steps to protect themselves. And public opinion surveys have generally found the public to favor notification laws.33 Law enforcement personnel appear less favorable, because of the work involved and because of the belief of probation and parole officials that notification complicates their efforts to find jobs and housing for offenders.34 Studies have documented the difficulties offenders have in finding jobs and places to live, and in avoiding harassment,35 when their status is made known. It is unclear how much community notification aggravates these problems.
Summary. Community notification has not been well studied. Correlational studies have found some links between notification and reduced offending,36 but because crime rates have been declining generally, it is impossible to be certain what role notification has played. Nonetheless, notification policies appear to be popular with the public, who want to know where sex offenders are. Although informed citizens do appear to take some protective steps, it may be that their anxiety is unnecessary in most cases. Nor is it clear that the steps that families take are effective or based on a true understanding of the dynamics of sex offending. Community notification seems to be based primarily on the belief that the danger is posed by strangers, who are in fact a minority of offenders. If community notification takes time away from other more effective things that law enforcement would otherwise be doing, it could be counterproductive.
Mandatory Background Checks
Public offender registries have made it possible to identify potential offenders who may be applying to work or volunteer in various businesses and organizations. Searches are increasingly expected or required as part of standard employment practices. In theory these searches bar dangerous people from youth-serving environments and discourage others with records from applying. They impose costs, however, particularly on volunteer nonprofits, and questions have been raised about whether they in fact create safer environments. They may also disqualify otherwise useful volunteers or employees with minor offense records who pose little risk.
Evidence. The true benefits and costs of background checks have not been systematically researched. The private company with the largest franchise for background checks has reported, after five years of screening 3.7 million names, that about 5 percent had a criminal record of any sort and that 0.3–0.4 percent were registered sex offenders.37 It is not clear that those detected with criminal or sex offenses were being screened for work in child-serving organizations, because many other employers use these checks.
Summary. Conducting background checks has become such standard practice that it is not clear that evidence about their efficacy would have much effect on policy. However, research is still badly needed to help organizations and employers develop and use the results from these checks, because it is not at all clear what kinds of histories among which kinds of individuals indicate an unacceptable level of risk.
Since 2000, many states and localities have rushed to enact statutes and ordinances (often called Jessica’s Laws) restricting where sex offenders can live and visit. Thirty states as well as many localities have such statutes, which are purported to protect children in schools, day care centers, and churches from predatory activity by sex offenders.38 The policies have been widely criticized by sex offender management authorities, who note that in some places it is almost impossible for offenders to find housing. Their increased instability and transiency makes it harder to keep track of offenders and raises the likelihood of re-offending. The restrictions can also have cascading effects, as no community wants to be left standing as a sex offender “haven.”
Evidence. These policies have been adopted without any evidence about their efficacy. Critics have pointed to research showing how few offenses originate in contacts of the sort that would potentially be inhibited by such statutes.39 Other research has pointed to the draconian restrictions such statutes impose on where offenders can live and has documented some increased transiency in the wake of their implementation.40
Summary. The logic model behind these restrictions appears fundamentally flawed, given that most sexual abuse occurs within established family and social networks and also that motivated offenders, wherever they happen to live, can go where they wish in search of victims. But because the restrictions have been widely implemented, these laws should be evaluated. Their appeal highlights two unfortunate realities. The public in many places feels or can be readily led to feel inadequately protected by the current policy regime. In addition, law enforcement and sex offender management authorities do not have the credibility or evidence base to temper or thwart misguided populist legislation on sex offender policy.
Sentence Lengthening and Civil Commitment
The period of incarceration for sex offenders has increased substantially over the past twenty years through mandatory minimum sentences, the abandonment of parole, the use of “three strikes” rules, and longer sentences for many sex crimes. More recently, states have also developed policies under so-called “civil commitment” procedures to continue to hold some persons deemed to be sexually dangerous even after they have served their criminal sentences. Advocates see these measures as reducing the number of offenders at large in the community capable of committing new offenses. They also believe stiffer punishments have deterrent effects. Critics see the measures as requiring huge increases in prison costs for an increasing number of offenders who may not pose a serious risk to the community. The costs of civil commitment may be particularly high because the committed must be kept in separate non-prison facilities.
Evidence. No studies have tested whether sentencing practices have an effect on sex crime. Some studies of crime in general have linked higher incarceration rates with decreasing crime in general.41 The effect is thought to result more from incapacitation than from deterrence. It is not clear how much of the improvement is achieved through longer sentences and how much through increased apprehension and incarceration of criminals. Meta-analyses on the issue of sentence length suggest that length by itself bears no relationship to the likelihood to reoffend.42 The high cost of increased incarceration, however, has been well established, as has the declining marginal advantage of incarceration as more people are incarcerated—because each new expansion of the prison population tends to involve more of the less recidivistic offenders.
Summary. It is unclear from current evidence the extent to which longer sentences and civil commitment do or can reduce overall risks of child molestation.
Enhanced Detection and Arrest
The most elemental thing the criminal justice system can do about a crime is to increase its detection and disclosure and the likelihood that the offender will be arrested and prosecuted. Disclosure can terminate abusive relationships, which are frequently ongoing in child sexual abuse, and prevent future ones. The offenders who are caught, even if they are not incapacitated, are deterred through embarrassment, humiliation, and increased vigilance by members of their social network. Other potential offenders are deterred by the circulation of news that offenders get caught. Law enforcement has indeed increased its staffing and efforts in recent decades to promote disclosure and increase its capacity to investigate (including the use of undercover efforts), arrest, and prosecute. The main criticism of these policies has concerned whether law enforcement has targeted too many minor offenders, such as juveniles or statutory sex crime offenders.
Evidence. No studies have tested whether increased law enforcement efforts to disclose, investigate, and arrest have a deterrent effect on sex crime offending against children. Some general research on criminology seems to support increased detection and arrest. Regarding drunken driving, robberies, and domestic violence, for example, increased enforcement has had demonstrable deterrent effects.43 Interestingly, in the domestic violence area the deterrence effects have been limited to employed offenders. This finding is particularly relevant to child sexual abuse, much of which occurs in family and network contexts and involves offenders much more likely to be employed than other felons. In the case of adolescent offenders, however, some research suggests that arrest is linked with increased subsequent offending.44
The potential efficacy of detection and arrest is confirmed by evidence that many child sex abusers offend repeatedly before getting caught, but thereafter have relatively low recidivism rates compared with other offenders. Getting caught may thus play a crucial role in desistance.45 General criminology research tends to confirm that offenders are deterred more by an increase in the risk of getting caught than by an increase in the severity of the likely punishment.46
Summary. Thanks to the increased disclosure of child sex abuse to authorities, a crime that once rarely made an appearance in court now dominates court dockets. No research, however, exists about the utility of enhanced detection and arrest. Logic and some research from related fields suggest that it could be helpful in preventing and deterring abuse, but such effects cannot be posited based on current evidence.
Mental Health Treatment
Many practitioners and researchers have advocated in favor of counseling for sex offenders both to increase skills for behavioral self-regulation and to help resolve problems that may underlie the offending. The availability of treatment options has grown, but many offenders still do not receive high-quality treatments. Barriers to such treatment include its expense, the lack of trained therapists, and the public perception that therapy coddles rather than controls offenders.
Evidence. Of all justice system policies, therapy for sex offenders has received by far the most extensive evaluation. In regard to adult offenders, the only evaluation that used the gold-standard experimental design (that is, it divided participants randomly into treatment and no-treatment groups) concerned a relapse-prevention treatment program that in the end proved to have no effect on recidivism.47 But meta-analyses have identified as many as sixty-nine formal evaluations of treatment and have concluded that treatment reduces sexual re-offending as much as 37 percent.48 Because these studies were not experimental, however, many observers have reserved judgment.49 The treatment judged most effective by the meta-analytic studies was cognitive-behavioral therapy, which identifies the habits, values, and social influences that contribute to offending and teaches offenders self-management skills to reduce their risk.
Regarding juvenile sexual offenders, the research evidence is more convincing. Three evaluations using experimental designs have supported the use of Multisystemic Therapy, an intensive family intervention that targets parenting skills, affiliations with delinquent peers, and school problems.50 Two other experimental studies have shown that cognitive-behavioral therapy can prevent additional reports of abusive or inappropriate behavior by preadolescents who are exhibiting such behavior.51
Summary. Treatment does not guarantee public safety, but evidence-supported interventions should clearly be offered to juvenile offenders and youth with sexual behavior problems as a prevention strategy. Therapy for adult offenders may eventually prove effective in preventing additional crimes as well, but additional research is needed.
Community Reintegration and Supervision
Some practitioners have argued for improved ways of integrating and supervising sex offenders when they return to the community to prevent re-offending. An innovative program originating in Canada called the Circles of Accountability and Support recruits and trains five community volunteers for each offender; one meets with the offender daily.
Evidence. An evaluation over four and a half years found that offenders paired with Circles volunteers had a 70 percent lower rate of offending than those not so paired.52
Summary. This is a promising idea that could use some additional evaluation.
Criminal Justice Policies: Conclusion
Enormous energy has gone into trying to manage sexual offenders to improve safety for children. The fundamental weakness in management as a prevention strategy is that so few new molestations occur at the hands of persons with a known record of sex offending. Only around 10 percent of new arrests for sex crimes against children involve individuals with prior sex offense records.53 Because it is likely that known offenders are more readily detected, the share of known offenders responsible for all child molestation overall (detected and undetected) is probably even smaller. Thus even strategies that are 100 percent effective in eliminating recidivism among known offenders would reduce new victimizations only a little.
Nonetheless, criminal justice strategies are highly popular and will continue be implemented. Their strongest justification is that they are widely seen by the public as part of a system that holds people accountable for serious crimes and provides a measure of justice for victims and their families. Such justifications may even trump evidence eventually showing that the strategies fail to reduce risk. But to the extent that prevention and increased safety are key objectives of these strategies, researchers should establish a broader foundation and tradition of program evaluation to help guide the strategies in the most favorable direction. It might be useful to establish an institution (perhaps associated with some prestigious entity like the National Science Foundation) to conduct evaluations and provide scientifically informed recommendations on sex offender management policy, just as the Centers for Disease Control and Prevention, for example, helps to promote informed epidemic management policy.
Today the empirical research offers relatively little basis for favoring one criminal justice strategy over another. Nonetheless, policy making must continue. My own sense is that four areas deserve priority attention. First, the justice system should expand its efforts to reveal and apprehend previously undetected offenders. I would hypothesize that the deterrent effect of getting caught has by itself a larger influence in reducing the propensity to offend again than any other likely justice action. I base my thinking in part on the fact that many child molesters commit numerous crimes before being detected, but have relatively low re-offense rates afterward. If so, the criminal justice system can increase disclosures and apprehensions by improving investigative techniques, including interviewing skills and undercover work, and by improving communication and rapport with the public to promote reporting. In particular, law enforcement might target some specific barriers that children and families sometimes cite as obstacles to reporting: fears of harsh and insensitive responses, publicity, and an overreaction to offenders who are juveniles or cherished family or friends.
Second, in its post-disclosure activities, the justice system should concentrate its limited intensive resources on the highest-risk offenders, perhaps the riskiest 25 percent of the offender spectrum. Arguments in favor of such costly practices as community notification may gain leverage if focused on these offenders. This is not to say that no or only minor sanctions should be applied to other offenders, only that the intensive resources should be directed at the high-risk group.
Third, the justice system must develop and improve tools that can differentiate higher-risk offenders and detect changes in risk. Once validated, such tools must be widely disseminated and used in many contexts to make considered discriminations in the use of resources and restrictions.
Finally, the justice system should cultivate some low-intensity strategies appropriate for relatively low-risk offenders, including youth and family offenders. Educational, mental health, and volunteer recruitment programs for the family and friends of such offenders could minimize re-offense potential and detect signs of relapse. Given the strong appeal and likely efficacy of early intervention to short-circuit offending careers, special attention should be paid to assessing and intervening in sexually inappropriate behavior among juveniles.