Societal Myths about Sex Offending and Consequences for Prevention of Offending Behavior Against Children and Women

James Krivacska, assisted by James Free¹
Richard Gibb² and Drew Kinnear²

Editor's Note: Dr. James Krivacska has been convicted of child sexual abuse based upon allegations by two mentally retarded men who were students at the special school.  Dr. Krivacska was the school's psychologist.  He maintains his innocence and the conviction is on appeal.  He wrote this article while an inmate at the Adult Diagnostic and Treatment Center at Avenel, New Jersey, the facility for sexual offenders.  He has previously conducted research and written journal articles and a book about sexual abuse prevention programs.  With Dr. John Money he edited the 1994 edition of The Handbook of Forensic Sexology: Biomedical & Criminological Perspectives.
  

Introduction

In August of 1999, the United States Congress issued a joint resolution censuring the American Psychological Association, perhaps the first occasion in our country's history that our nation's highest legislative body actually censured a professional organization for the publication of scientific findings.  The declaration by Congress that the findings of a study entitled "A Meta-analytic Examination of Assumed Properties of Child Sexual Abuse Using College Samples" and published in the prestigious journal, Psychological Bulletin (Rind, Tromovitch & Bauserman, 1998), were worthy of censure, can only have a chilling effect on scientific inquiry into controversial subjects.

The significance of this action has largely escaped public notice, yet it may rate as the most significant attempt at repression of science since Galileo's findings were condemned by the Catholic Church as heresy 500 years ago.  This is not to say that legitimate scientists can't criticize the methodology of the study or the theory underlying its conclusions.  Science is a search for truth which periodically takes detours based on flawed theories or methods.  Correction of such errors occurs through a process of scientific discourse and further study.  Congress condemned, however, not the methodology, not the theory, but the actual findings of the study.  Similarly, the Church, in response to Galileo, in effect declared that the science didn't matter.  Since the conclusions contravened Church dogma the conclusions had to be wrong.  By essentially declaring the study's findings "heresy," Congress circumvented the scientific process of inquiry.  No further research into the effects of child sexual abuse is necessary since Congress has preordained the outcome.

The issue of child sexual abuse has become so polarized that it has become necessary, and almost reflexive if not de rigueur, for authors to state, as a prelude to any critical analysis of societal perceptions and reactions to such abuse, what should be obvious.  Thus we state unequivocally that this reaction to the Congressional Censure should, in no way, be construed as an apology for sex offending behavior, or an attempt to deny or minimize the traumatic effects many children experience as a consequence of sexual abuse.  It is also not an attempt to justify sexual contact between children and adults as ever being legitimate, even if immediate negative effects are not apparent.  Rather, the concern is that attempts to address the serious problems of sex offending in our country are driven by public and political policies that are exceedingly resistant to being informed by science.

Such policies, and in fact, the Congressional Censure of APA, reflect a number of myths that have permeated American Culture and attained a stranglehold on rational discourse.  We argue that a consequence of these myths may well be to increase the rate of sex offending behavior.  The motto of the Adult Diagnostic and Treatment Center in Avenel, New Jersey³ and the cautionary phrase which governs treatment and is seared into the minds of the residents there, is "No More Victims."  Despite public perception to the contrary, released sex offenders are not the greatest risk to society (as we note below, most sex offenses are committed by first time offenders).  A broader awareness and approach is necessary to realistically address this problem and we hope that by bringing these myths to the public's attention, a truly meaningful dialog can take place with the ultimate goal of eradicating sexual abuse from our culture's lexicon.
  

Myth 1

That sex offending behavior, especially that of a "sexual predator" or compulsive offender, represents a defective value system, amorality and/or volitional choice to engage in a deviant lifestyle, rather than an expression of an underlying sexual disorder of psychoneurological origin.

This myth presupposes that all sex offending behavior is borne of a common origin, a defective value system and a conscious choice by the offender to seek sex gratification through deviant means.  This myth persists despite the fact that, other than drug addiction and kleptomania, compulsive sex offending is the only criminal behavior which is specifically listed as a psychiatric disorder by the American Psychiatric Association in their Diagnostic and Statistical Manual of Psychiatric Disorders, Edition IV (American Psychiatric Association, 1994).  Treatment programs exist predicated upon the belief that such behavior is attributable to psychiatric disorder; that no one would choose to be a pedophile, for example (given the social execration and criminal sanctions associated with such behavior — note also that a similar argument has been made and accepted with regard to homosexuality to counter that individuals choose to be gay).  Many states have now instituted civil commitment laws to address habitual sexual offenders, which ostensibly attributes offending behavior to a mental abnormality and an inability to control one's behavior, requiring treatment.  Finally, several states permit chemical castration (administration of Depro Provera to reduce testosterone in the blood stream to prepubescent levels) as a means of reducing sex drive and, consequently, sex offending behavior.

Finally, newspaper reports of arrests of sex offenders, compared to other criminal offenses, often include the shocking revelation that the accused was an upstanding member of the community, respected teacher or coach, or respected business man, or even a nationally recognized sportscaster (Mel Albert), or judge (Judge Wachtler).  The shock of family, friends and the general community to such arrests is invariably one of perplexity attesting to the lack of evidence of anti-social or amoral behavior anywhere else in their lifestyle.  Finally, such behavior is consistent with other forms of sexual deviancy which are not necessarily criminal in nature, such as cross-dressing, sadomasochism, fetishism, etc.  Often, the discovery of such compulsions is totally out of character with the perception that family and friends have of the individual.  Those deviant lifestyles, because they are not criminal, are more easily accepted as disorders or compulsions, amenable to psychiatric treatment.
  

Consequences of this Myth

1.  It is currently impossible for either an adolescent or an adult, who is experiencing sexually deviant fantasies and urges, to seek confidential treatment to prevent future sex offending, without risk of arrest or report to child protection agencies; a consequence which serves no one's interests, especially future victims who could have been spared.

Because this myth presupposes that sexual deviancy is a lifestyle choice, it is believed that, unless caught and incarcerated, individuals with sexually deviant fantasies and compulsions have no desire to seek relief from those compulsions through treatment.  However, prior to mandatory child abuse reporting requirements originating from the Mondale Act in the mid 1970's, several walk-in referrals occurred each month at a university hospital treatment center for sexual disorders (Johns Hopkins University Hospital) (Money, 1999).  After the Mondale Act was passed, the rate dropped to zero.

Any mental health professional providing treatment to an adolescent for any range of adjustment problems is ethically required to inform the adolescent of the limits of confidentiality imposed on them (such as reporting threats of suicide or any information which may lead to a reasonable suspicion of physical, emotional or sexual abuse of a child).  Such prior warning puts the adolescent on notice that any attempt to discuss deviant fantasies, compulsions or any acting on those compulsions, will result in a report being made.

Many in the criminal justice system argue that providing such confidential treatment means that prior victims may not be identified and provided with the help they need.  However, absent the abuser coming forward; they are unlikely to be identified in any event.  Even if the abuser is subsequently arrested, there is no guarantee that all previous victims will be identified and provided treatment as needed.  What may be prevented by offering confidential treatment to sex offenders without the risk of being reported is future victimization.  This is the model used in certain European countries.  Individuals who experience deviant sexual urges may seek confidential treatment without risking criminal prosecution so long as they are not actively offending at or during the time of treatment (if they offend during treatment, the treating doctor must report the offense) (Krivacska, 1994).

2.  Early identification of adolescents who may be experiencing deviant sexual arousal and fantasies is impossible because of the prohibition against public school staff, such as teachers, guidance counselors, social workers or psychologists, discussing sexual issues with minors without parental permission.

This myth, as well as cultural aversion to recognizing the reality of adolescent sexuality and a belief that promotion of "family values" is inconsistent with promotion of healthy sexual development, engendered a prohibition against discussing sex related issues with minors without their parent's permission (a result of the Hyde Amendment) in public schools.  This leaves teens who are experiencing deviant thoughts and compulsions with no recourse to treatment until they eventually act out that deviance and are arrested.

Most experts in sexology as well as most therapists treating sex offenders acknowledge that deviant sexual fantasies and urges, and first instances of acting on those fantasies and urges, evidence themselves during adolescence.  This is a critical period during which targeted efforts at identification and treatment may prevent the adolescent from becoming an adult offender.  Notwithstanding the financial costs of early identification and treatment versus the substantial costs associated with investigation, arrest, prosecution, conviction, incarceration (and, now, possible civil commitment), the cost in human lives saved by reducing actual victimization makes avoidance of early identification and treatment efforts irrational and counterproductive.

3.  Similarly, despite the social and personal costs of sexual victimization, and the financial costs associated with apprehending and incarcerating offenders, there is virtually no funding available for treatment programs for sex offenders.

The TV news magazine 20/20 recently presented a story of a serial rapist and his successful treatment with Depro Provera, a progesterone based medication which lowers testosterone blood concentrations to prepubertal levels (ultimately, after three years of not offending while under the drug, the drug was discontinued and he almost immediately began to reoffend).  At the conclusion of the story, the correspondent noted that there were 300,000 sex offenders incarcerated or committed in the United States but that very little research has been done on treatment of sex offenders, despite the obvious consequences to society, because of lack of funding.  Lack of funding in this area, and lack of treatment alternatives, reflects the illogic of this myth.  The assumption that sex offenders choose their deviant lifestyles negates the need for funding treatment programs since the assumption is that you can't treat that which is a voluntary choice.

Consequently, the government is expending huge sums of money to capture, convict, incarcerate, and then, often, civilly commit sex offenders.  Legislators are increasing sentences, and implementing other measures such as lifetime supervision which require the commitment of extensive resources.  Society, in general, is blinded — by this myth of the "bad" offender as opposed to the "sick" offender — to the cost-ineffectiveness of this approach compared with providing research dollars to learn how to prevent the development of such deviancy or even how to identify it early on and treat it when identified.

4.  The sexual abuse victim is excused from responsibility for all behaviors emanating from his victimization by our sympathy and compassion, except when that behavior is a repetition of the act by which he became a victim, himself.

The dualism apparent in these disparate views of sex offenders (as "bad" people at time of trial, conviction and sentencing and thus in need of punishment through incarceration, and "sick" at the time of release from prison and thus in need of treatment through civil commitment), becomes most contradictory when applied to abusers who were themselves abused as children.  When a child is a victim of sexual abuse, one of the predominant concerns regarding the future mental health and well-being of the child is the risk that the child will himself become a sexual abuser when adulthood is attained.  It is particularly ironic how the pity, compassion and sympathy one feels for a child who has been victimized, turns to disgust, revulsion, and hate when that child ages and commits an act of sexual aggression against another, notwithstanding the prediction that exactly just such a course of events may unfold.

This reasoning was classically embodied in the case of Sam Manzie of Ocean County, New Jersey, who at age 14, was sexually abused over a relatively long period of time by a sex offender, and whose traumatic response to that abuse was sufficient to drive his parents to seek a court-ordered commitment of young Manzie for psychiatric treatment.  Within a week of the denial of that request, Sam Manzie, then 16, raped and killed an 11-year-old boy from his neighborhood.  Emotions in the case were elevated, of course, by the murder of the boy, but it is likely that outrage against Manzie would still have been at fever pitch if he had only raped the boy.  By virtue of the sexual act he committed, the probability of which could have been predicted by his own history of abuse, Sam Manzie was transformed from a victim to a monster.  Society's ability to engage in such dualistic thinking without apprehension for its implications, is a manifestation of this myth that will continue to plague society.

5.  Child sexual abuse prevention programs are directed at children, who are asked to protect themselves against sex offending behavior, rather than being directed at offenders and potential offenders.

Another impact of this myth relates to prevention of sexual abuse, especially prevention efforts directed at "empowering" children to protect themselves.  Notwithstanding the obvious implications for setting up a "blame the victim" mentality by asking children to protect themselves (when they are subsequently victimized, do they blame themselves for having failed to protect themselves against the abuse?) (Krivacska, 1990), the basis of such programs is predicated upon the view that society has no role to play in working with sex offenders or potential sex offenders to prevent them from abusing.

As long as the view is that sex offending behavior solely represents a moral choice or a choice of lifestyles, society's expectation is that criminal sanctions and social execration should be sufficient deterrents, such that additional efforts are not warranted.  But sexual offending behavior is mostly engaged in irrationally.  If one subscribes to the model of sex offending as a manifestation of psychological disorders (which we do once the offender has served his sentence and we seek to commit him), then a rational society should be seeking to focus on the prevention of sexually offensive behavior directed at potential offenders, not their potential victims.  Ironically, it is no longer politically correct to say to a woman, "you shouldn't dress like that," or "be careful what you say so a man doesn't think you're leading him on" or "don't get into heavy petting unless you're ready to go all the way."  Such attempts at placing responsibility for preventing their own victimization on women is viewed as Neanderthal by most social commentators and feminists today.  Yet, we are placing responsibility for prevention of their own victimization on children.
  

Myth 2

That the vast majority of sex offenses are committed by predators and that, indeed, most sex offenders are predators with extremely high rates of recidivism.

Several years ago a new term was introduced into the American lexicon: "sexually violent predator."  No such term exists in the psychiatric or psychological literature (at least not prior to its emergence in public discourse).  Psychology and psychiatry recognize that sexual behavior and deviancy is a complex interplay between intrapsychic phenomena and societal norms (for example, a half century ago, sexual contact between two members of the same sex was criminalized by most state statutes).

A common strategy in the manipulation of public opinion by advocacy groups is the conceptualization of a problem in simplistic terms and the assignment of a new name for the problem that homogenizes it into an easily identifiable form around which public opinion can be rallied.  Thus was born the term "partial birth abortion," a term which does not exist in the field of obstetrics, but which was coined by advocacy groups to create a mental visual image which would presumably horrify the public and rally them around an abolitionist cause.  The same strategy was in use during the recent Elián Gonzalez soap opera in which the Miami relatives attempted to redefine the issue of Elián's custody into a political issue of freedom versus communism.  The printing of the picture of the INS agent with his assault rifle pointed in the general direction of Elián with the caption "Federal Child Abuse," was designed to reframe the intransigence in returning Elián to his father into an emotionally charged attack against the federal government.  They tried to garner public support by linking the federal agents behavior with the emotionally charged subject of child abuse.

The term "sexually violent predator" serves the same purpose.  Although, when pressed, most politicians and government officials may begrudgingly admit that the term can be used over-inclusively, that subtlety is lost in any public discussion.  Thus, the current movement in New Jersey is essentially to disregard the three-tier system of community notification in which only those released sex offenders who are at the highest risk of reoffending are subject to broad community notification, in favor of a constitutional amendment which would permit the publication of information about all sex offenders on the Internet.

The reality, however, is quite disparate from the perception put forth by this term.  Experts in treatment of sex offenders are essentially unanimous in their view that a very small percentage of sex offenders have the psychological pathology and behavioral patterns of sexual arousal such that the term "sexually violent predator" might apply.  Again, the use of the term implies that all offenders are simply bad people who choose, presumably with glee, the lifestyle in which they engage.  The original tier system introduced into New Jersey's community notification process (similar to that in place in numerous states), however, recognized the need to distinguish between types of offenders.  So, too, does the research on recidivism.

During the recent airing of the New Jersey Network TV show Due Process on April 30, 2000 (Witt, 2000), the moderator, Raymond Brown, asked Dr. Philip Witt, former director of psychological services at the Adult Diagnostic and Treatment Center (for convicted sex offenders) in Avenel, New Jersey, and a published expert on treatment of sex offenders, to review the actual recidivism rates for sex offenders.  Dr. Witt emphatically emphasized that sex offending behavior was distinguishable into subtypes ranging from very low risk to very high risk (incest offenders, for example, had the lowest rates of recidivism, less than 10%, while serial rapists and certain exhibitionists/voyeurs had the highest rates, generally above 50%).  Overall, Dr. Witt felt that most studies showed an average recidivism rate in the low 30 percentile range.  Dr. Witt did not indicate the source of the data he was reporting, although if he was basing his analysis on recidivism rates of sex offenders released from the NJ treatment center in Avenel, these rates can be expected to be inflated since they wouldn't include offenders not found to be compulsive and repetitive, and thus sentenced to regular state prison (and presumably, less likely to reoffend).

Actually, the most extensive review of recidivism rates ever done was a study published by Hanson and Bussičre (1998) in which data from 54 recidivism studies was collected and analyzed, yielding data on over 23,000 sex offenders.  The results of this analysis indicated that during a 6-year period after release, the average recidivism rate for sex offenders was 13.4%, with some variability based on the nature of the offense (rapists reoffended at a rate of 18.9% compared to extrafamilial child molesters, who reoffended 12.7% of the time).

Since the public perception is that recidivism rates of sex offenders is inordinately high compared to other types of criminal offenders, Dr. Witt was also asked by Mr. Brown to compare the rates of sex offenders to other ex-convicts.  Dr. Witt indicated that, compared to released murderers, the recidivism of sex offenders was much higher (since released murderers reoffend at a very low rate).  However, compared to individuals convicted of property offenses (burglary, armed robbery, theft, etc.) and drug offenses (including possession and distribution offenses), the rates of recidivism among sex offenders was much lower.  On May 11th, 2000, NJ Department of Corrections Commissioner Terhune testified before a NJ Legislative Committee examining the relative effectiveness of boot camps versus regular prison for reduction of recidivism rates.  During the portion of his testimony reported on the 11:00 PM edition of NJN News on 5/11/00, Mr. Terhune stated that the overall recidivism rate for individuals released from state prison, across all categories of crimes, was 60% (Terhune, 2000).  This rate is twice that of the "average" released sex offender as reported by Dr. Witt, and still higher than even the highest risk offenders (Mr. Terhune did not indicate how many years, post-release, this recidivism rate encompassed, limiting comparison to the Hanson and Bussičre study).  Furthermore, the Bureau of Justice (1988, p.111) in a comprehensive study conducted a decade ago, found that 50% of all releases will reoffend, most within the first three years after release.  This, of course, raises the interesting question of why we should not be at least equally concerned (if not more) about knowing whether a released drug dealer is living next door to our home as we are about a sex offender living there.
  

Consequences of the Myth

1.  A 15-year-old male, guilty of sexual contact with the breast of a 15-year-old girl, is considered as much a predator and at as great a risk for reoffending for the rest of his life, as a 35-year-old serial rapist with a history of 20 violent rapes and multiple incarcerations.

To appreciate the range of offenders which are being lumped under the category of "sexually violent predators," consider that both of the following individuals would be considered to fall in that category, and would for the rest of their life, be subject to having their name, picture, home and work addresses published on the Internet.  The first is a 35-year-old serial rapist with a history of over 20 rapes and violent assaults, with a weapon, over a 15-year period.  The second is a 15-year-old boy (good athlete, good student, no history of disciplinary problems or drug use) who, after a few drinks at an unsupervised party at a friend's house, comes on too strongly with another girl, and despite her protests, fondles her breasts.  Though guilty of a 3rd degree criminal sexual contact offense, even though he is a juvenile, and his juvenile record itself is sealed, Megan's Law provides no exemption for juvenile offenses.  While his behavior was clearly wrong, both morally and legally, proportionately (and compared to the case of the serial rapist) a rational person would have to agree that classification of the 15-year-old as a "sexually violent predator" is unjustified.

Equally of concern may be the inherent difficulty of that 15-year-old ever being able to reintegrate into society and lead a normal life.  It would take an extraordinary woman indeed, to fall in love with this individual, perhaps years after this one offense, and agree to marry him and live together with him under the public stigma of "sexually violent predator."  No matter where they live, she will be identified as living with a sex offender.  Should they decide to have children, their children would be publicly labeled, and perhaps publicly ridiculed in school, as the offspring of a "sexually violent predator."  To what extent is society truly protected by public notification under this circumstance?  Indeed, to what extent is society placed at greater risk of this individual reoffending (if not sexually, then through some other form of criminal activity) as a consequence of his isolation and stigmatization, and inability to reintegrate into society, obtain meaningful, gainful employment, and start a family?

2.  Sex offender stereotyping may create a self-fulfilling prophecy for youthful sex offenders.

Following up on the example of the 15-year-old described in Consequence 1, having been publicly labeled a "sexually violent predator" may increase the risk of the individual reoffending.  Certainly, the public labeling of this adolescent will impair his ability to seek higher educational opportunities, may severely limit his career options, and will negatively impact on his ability to obtain anything more than perhaps a minimum wage type job.  Even years after the offense, he will struggle with the reality that any business at which he seeks employment will have to be willing to accept the potential negative publicity of having their company's name published as a business that is employing a sex offender.  As described in Consequence 1, the likelihood of his setting down roots in a community, marrying and raising a family and becoming a contributing member to the life of that community is seriously compromised by his public labeling.  With alternatives to the establishment of relationships, ties and connections to the mainstream community largely unavailable, the risk of developing relationships, ties and connections to a criminal culture heightens considerably.  The adolescent-come-adult may even perceive himself as not worthy of playing any meaningful role in the life of the community.  The stage for a repetitive cycle of criminal behavior (not necessarily of a sexual nature, but rather perhaps involving drugs, petty theft, or robbery) has now been set.

To those who argue that such an offender represents a rare case, and, in any event, the notifications laws can be structured to allow some discretion in such cases, two cautionary responses are offered.  First, we can expect an increase in such cases as society has increasingly resolved to treat juvenile indiscretions as criminal behavior with adult consequences.  Furthermore, offending histories are as varied as the offenders and, arguably, each case represents, in some ways "a rare case."  There is virtually no discretion allowed in the determination, even under the current tier system, of who goes into what tier.

Secondly, prosecutors can hardly be trusted with such discretionary authority.  Prosecutors are under enormous pressure to "do something about crime" and any action on their part which can be viewed as "soft" inevitably results in considerable political and public condemnation.  It is the rare prosecutor who will be willing to risk his or her career on the chance that an offender who he helped to convict, wasn't really at risk to reoffend and could be exempt from broad notification.

3.  Society's obsession with inflated recidivism rates and convicted sex offenders, has blinded society to the reality that most offenses are committed by first time offenders; this has precluded society from realistically evaluating the potential benefits of prevention efforts.

Another consequence of this myth is its ignorance that most sex offenses are committed by first time offenders.  With the focus on recidivism and community notification regarding released sex offenders, society is able to direct its horror at sex offending behavior in a tangible way.  By convincing themselves that they are doing something to prevent sexual abuse and assault, society feels they have done their part.  However, since most offending is committed by first time offenders, focusing solely on released sex offenders will have a minimal impact on reduction of sex offending behavior.  The societal focus on convicted offenders, however, and society's demonization of such offenders, allows it to ignore the importance of identifying potential offenders, especially in their teens, and providing treatment to prevent the deviant fantasies from being acted upon in adulthood.  Again, there is virtually unanimous agreement among professionals treating sex offenders that the vast majority of offenders report that deviant fantasies, and perhaps even first steps towards acting out those fantasies, arise during adolescence.

4.  This stereotype of sex offenders suggests that offenders fit a pattern; thinking that way can hinder society's ability to protect children.

For over 20 years now, the public has been told that most offenders are known to the victim (at least in cases of child sexual abuse and date rape).  Despite this, society still most fears the "stranger offender."  Society is perhaps least prepared for intrafamilial abuse or incest.  Again, the sexually violent predator stereotype supports the view that offending behavior is a lifestyle choice that is, in some cases, supported by societal stereotypes about sex, rather than as a disorder in the sexual make up of the offender.  As a consequence, early warning signs that a relationship might be headed down a deviant path (in a case of father-daughter incest, for example), are missed.
  

Myth 3

That the justice system is a revolving door for sex offenders with offenders receiving light sentences and easily gaining parole, therefore, necessitating extraordinary measures, such as civil commitment, to keep dangerous sexual predators of the street.  Furthermore, that length of incarceration is correlated with a lower risk of reoffending.

While this myth was grounded to some degree in reality 20 years ago, current conviction rates and sentencing patterns belie this myth, at least to the extent to which the justice system can be considered to be colluding in the premature release of sex offenders.  Consider that digital penetration of a minor in New Jersey, even without breaking of the hymen (any degree of penetration, no matter how slight, is counted as penetration) is a first degree crime (aggravated sexual assault) and carries a presumptive sentence of 15 years imprisonment.

If the offender is found to be compulsive and repetitive, he is sentenced to the Adult Diagnostic and Treatment Center at Avenel to serve his sentence.  He cannot be paroled prior to his maximum release date unless he can show that he has been successfully treated and is no longer a danger to the community.  A small percentage of ADTC inmates are released under parole prior to the maximum release date, well below the rate of release for prisoners in the general prison population.⁴  In fact, under a wide class of sexual offenses, sex offenders can now be sentenced under a law in New Jersey designed to limit parole for violent offenders (NJSA 2C:43-7.2).  Certain sex offenses have been reclassified as violent offenses even if there was no violence employed in the commission of the offense.  Sentenced under such guidelines, sex offenders must complete 85% of their sentence with no opportunity for parole.

Notwithstanding the current reality of lengthy incarcerations, public perception of revolving door justice for sex offenders, punctuated by the rare but tragic rape/murder of Megan Kanka in New Jersey in 1994, instigated a flurry of legislative activity in New Jersey and across the country.  Some called for even more lengthy sentences, mandatory sentences and other means of maintaining control over sex offenders such as lifetime supervision.  Such measures, however, could not be implemented as restrictions on convicted sex offenders who had already been sentenced without running afoul of constitutional protections against ex post facto punishments.  The solution was to implement new civil commitment statutes as a means of lengthening the period of time sex offenders were incapacitated and segregated from society.

The related myth, that length of incarceration is correlated with a lower risk of reoffending, is not supported by any scientific research.  The few studies on this point have found that within certain ranges of sentencing, longer terms of incarceration can increase likelihood of recidivism, as the inmate assumes the persona of an institutionalized inmate.  Highly institutionalized individuals develop behavior patterns which serve a survival function within the institution.  These same behaviors, however, can interfere with social functioning once the inmate has been released into the community.  The stress of living on one's own, and limited skills relevant to living in the community can increase stress levels and thus lead to reoffending behavior (Gendreau, Goggins, & Cullen, 1999; Orsagh & Chen, 1988).  Nevertheless, civil commitment is predicated, in part, on the perception that longer periods of incapacitation will reduce sex offending recidivism.
  

Consequences of this Myth

1.  The sex offender, considered in control, and therefore responsible for his behavior, at the time of the offense, trial, conviction and sentencing, however, is suddenly viewed as unable to control his behavior after serving his sentence, and thus in need of civil commitment.

The societal outrage against sex offending behavior has lead to increased sentences, mandatory sentences, and, of course, civil commitment for certain sex offenders who have served their time.  The result has been the implementation of a series of policies that are conceptually contradictory, one to the other.  In New Jersey, as in most states, the inability to control one's behavior, along with an inability to judge right from wrong, form the descriptive basis of an insanity defense.  An individual who commits murder while in a psychotic state, can be considered insane if, during that psychotic state, the jury is convinced that the individual was unable to control his behavior, or was totally unaware that his actions were wrong.  Such an individual would be found "Not guilty by reason of insanity" and would be committed to a psychiatric hospital until such time as his mental illness could be cured or adequately managed.

Because most sexual offenders in New Jersey don't meet the New Jersey definition of mental illness, they cannot be committed against their will.  When the legislature passed legislation permitting the civil commitment of sex offenders, they created a new term, "mental abnormality," and defined as eligible for commitment those who possessed a mental abnormality which predisposed them to commit acts of sexual violence.  Currently, as practiced in New Jersey, an individual can be tried and convicted for a sexual offense and be sentenced to ADTC as a compulsive and repetitive offender — incarceration under the Department of Corrections.  Upon serving the term of his sentence, he can then be civilly committed if it is determined that he is more likely than not to reoffend because of this mental abnormality.⁵  The irrationality of the system is that one is viewed as accountable and in control of one's behavior and therefore responsible for that behavior at the time of conviction, yet is somehow less in control and less accountable and personally responsible for managing one's behavior after serving a term of incarceration (Schopp, Scaora, & Pearce, 1999).

There are two conclusions one can draw from this analysis.  The first is that the state is conveniently playing games with criminal and psychological definitions (using the former at the time of charging and the latter at the time of parole/release) with the sole purpose of keeping sex offenders confined.  It is difficult to see how the state can justify saying that at the time of the offense and the filing of charges the offender was in control of and responsible for his behavior and did not suffer from a mental abnormality, yet upon his release, state that he is suddenly not in control of his behavior and needs to be civilly committed.  The second conclusion which could logically be drawn is that there is something about either the process of incarceration or, in the case of those sentenced to ADTC, something about the treatment, that causes the psychological functioning of inmates to deteriorate during their incarceration such that the mental abnormality either developed or manifested itself to a greater degree during their imprisonment.

2.  Definitions of normal and abnormal are increasingly based on legal constructs and statutes rather than the principles of scientific psychology and psychiatry, with substantial implications for individual rights and liberty interests.

As the prior consequence illustrates, either the State is manipulating the system or the State's system of responding to convicted offenders is making them more dysfunctional.  Neither conclusion bodes well for a free society.  What is important to keep in mind is that the State definition of mental abnormality is not based on any psychiatric or psychological definitions as used in those professions.  The creation of this new category of mental disability is neither grounded in science nor derived from any scientific theory of human behavior.  It lacks any operational definition or objective criteria upon which its application may be based.  Its definition is tautological and normative.  It is tautological in that it is diagnosed on the basis of past behavior absent being shown to be causally linked.  In other words, to be diagnosed as a sexually violent predator, one must have a history of sexual crimes and mental abnormality, which itself is defined as a predisposition to commit sexual crimes.  The definition is also normative in that it requires a non-psychological judgment regarding predisposition (Schopp, Scaora, & Pearce, 1999).

As it is, psychiatric diagnosis, which is reliant upon relatively objective criteria, and extensive descriptions and definitions of behaviors indicative of the diagnosed condition, are still notoriously unreliable (Grove & Meehl, 1996).  The absence of such criteria, and a vaguely worded definition which references itself, renders the assignment of that label inherently unreliable.  The finding of a "mental abnormality" then, is a legal finding, not a psychological or psychiatric finding.  So, too, is the concept of "likely to engage in acts of sexual violence" (as the NJ Civil Commitment Statute defines sexually violent predator) not couched in terms used by psychologists.  While presumably psychologists, psychiatrists and mental health workers may provide the courts with information to assist them in making these decisions, a psychologist or one of his colleagues cannot make a finding of "mental abnormality."  That judgment requires the weighing of personal liberty interests against the risk to the community, again a normative evaluation for which psychologists have no unique or specialized expertise.  That determination is left to a judge and the arguments of State and Defense counsel.

The standard of review for such decisions by a trial judge is abuse of discretion, a standard that is very difficult to overcome as appellate courts strongly prefer to defer to the judgment of trial judges in such matters.  Consequently, the potential for the civil commitment statute to be ultimately used more broadly is quite real.  Drug addicts, arguably, are much less capable of controlling their behavior than sex offenders (based on recidivism rates).  So, too, might someone convicted of illegal gambling be considered addicted (to gambling) and thus unable to control his behavior.  The list of possible offenders for whom the new statute could conceivably be expanded is staggering in its implications for a free society.

In fact, since the standard of proof in a civil commitment is less than that needed for a criminal conviction (clear and convincing evidence as opposed to beyond a reasonable doubt), it becomes possible for the State to pursue and obtain a civil commitment of an accused sex offender who was acquitted at trial.  Before one is too quick to discount that probability, the administration of the forfeiture laws in New Jersey should be considered.  Property used in the commission of a crime, or which was the fruit of a crime, can be seized by the State under the forfeiture laws.

Thus, a drug dealer who dealt drugs out of his car may have his car seized and sold by the State — proceeds from the sale going to fund various State criminal justice programs.  However, forfeiture is a civil, not a criminal proceeding and thus the burden of proof is much lower than in a criminal proceedings.  Numerous accused individuals have had their homes, cars, businesses, etc. seized and sold, usually before they are even brought to trial.  Even if they are acquitted at a criminal trial, it is almost impossible for them to recover the seized items.  (A recent example was reported in the Bergen Record, May 8, 2000, page 1, "Seizure Ruins Family Business" detailing the case of a family printing business accused of printing counterfeit Pokemon cards; $2 million worth of printing equipment was seized and the business forced to close despite the fact the family contends they were innocent victims of a scam.  Even if acquitted, their business has already been destroyed and the family thrown into debt.)

If the State has no qualms seizing property from individuals acquitted of crimes of which they have been accused, it would seem likely that it is only a matter of time before the State seeks to civilly commit people it was unable to convict at a criminal trial.  It may be that society's outrage over such injustice will only be ignited when the State begins to civilly commit individuals other than sex offenders, but it may be too late by then to reverse the trend or the precedent.
  

Myth 4

That broad public notification of sex offenders' names, addresses and place of employment will help people protect their child and reduce offending behavior.

This myth assumes that knowing who your neighbor is will help you protect your child.  The main problem with Megan's Law and community notification is the problem shared by most laws that are passed in response to a single, but prominent, event.  It is rarely good social policy to promulgate laws based on individual instances.  A legislator recently commented that Megan's Law must be working since there haven't been any more cases like that of Megan Kanka since its passage.  That's an interesting claim since court battles have limited the amount of community notifications in the last 6 years.  It's also an interesting claim in that the rarity of this event is highlighted by the fact that the law was passed in response to it.

Of course, the claim is also false.  Megan's Law did not prevent Sam Manzie from raping and killing the young Warner boy, as described earlier.  The reality is that most sex offenses are committed by first time offenders (or, at least, offenders with no prior criminal history of sex offending).  Supporters would argue that to spare even one child's life makes the law worthwhile.  But once that becomes the standard, should we not engage in community notification of anyone charged with a sex offense?  Most of them will end up convicted and are, therefore, guilty of the offense with which they were charged.  Why wait for a conviction?  Would not society be better protected by broad community notification as soon as someone becomes a suspect, even before an indictment?  And what of Child Protection Services complaints?  Shouldn't a parent, before signing up her child for Little League, have the right to know if the Little League coach has ever had a complaint filed against him for physical, emotional or sexual abuse of a child?  Even if unsubstantiated, wouldn't it be better to be safe than sorry?

Given research findings showing a higher rate of recidivism for sex offenders with deviant sexual arousal (Hanson & Bussičre, 1998), such thinking would support the mandatory phallometric assessment of every male who applies for any job involving contact with children.  Why not have, as part of the hiring process for new teachers, not only a criminal background check, but a test of sexual arousal to ensure the prospective employee is not aroused by children?  We could impose the same requirement of anyone who works with children, including priests and other clergy, and even those who volunteer their time such as coaches, Boy Scout Troop leaders, etc.  Is not such an action justified by the number of victims who might be spared the trauma of abuse?  Is not such an action justified even if only one child is spared?

Society, however, recoils at what it considers the absurdity of such suggestions: first, because it would subject many of the very advocates of protecting children to the privacy intrusions they are justifying for sex offenders and, second, because it requires society to confront, head-on, the reality that their children are more likely to be abused by someone they already know and by someone who has never been convicted of a sex offense.  Legislative focus on sex offenders reinforces, in society, a misplaced sense of security that effective prevention of sexual assault can be achieved through community notification laws, rather than a comprehensive attempt at breaking the generational cycle of offending behavior which is waiting to erupt when the children and adolescents of today, become adults.

In reality, community notification laws may ultimately have very little impact on sex offending rates.  The only study published to date on the effects of community notification on sex offender recidivism found no differences in rates of reoffending between those subject to community notification and a matched sample of those not subject to such requirements (Schram & Molly, 1995).  Criminal background checks are an effective tool that can be used by all youth organizations to identify whether a potential coach or volunteer is a convicted offender.  The money currently being spent on community notification procedures could be spent to underwrite the costs of such checks.

Most violent extrafamilial offenders, if they are going to reoffend, look for victims who are unlikely to be able to report or identify them.  That is, they usually seek victims outside their neighborhood.  All community notification may do is to increase the likelihood that the offender will seek out "stranger victims" and perhaps increase the perimeter within which the offender will avoid offending.  A true "sexually violent predator" is not going to be dissuaded by community notification laws.  Such laws can be easily circumvented by maintaining a dual residency (one as the official residence, and a second unofficial residence such as a rented apartment).  At the "second" residence, he would be quite anonymous.  Even without going through that much trouble, as long as the determined offender has access to transportation, he can always find a park or neighborhood in which he is unknown to seek out his prey.
  

Consequences of this Myth

1.  Community notification will further ostracize, stigmatize and marginalize a population of released sex offenders thus increasing the risk of reoffending.

As Dr. Witt pointed out during his interview on Due Process noted earlier, there is no scientific evidence that community notification will reduce recidivism rates or help people better protect their children.  He expressed the concern that the stigma imposed by communities on sex offenders will drive offenders either underground, or push them to move from community to community.  Such instability increases stress, which is a known contributory factor in recidivism.  The degree to which a released offender is able to maintain a stable lifestyle, integrate himself back into the community, acquire steady employment, develop a support network and outpatient treatment, are directly related to the risk to reoffend.  Each of these is compromised, actually not by the community notification itself, but by the treatment of the sex offending individual as an anathema in the community which has received this notification.

In addition to increased transience, there are a number of other unintended consequences from Megan's Law which will be even further exacerbated if Internet posting of offenders is permitted.  The obvious difficulties to be experienced by a youthful or even preteen offender described above from lifetime public designation as a sex offender, is likely to destroy any opportunity for a normal life, and increase the risk of engaging in criminal behavior or substance abuse (even if not sex offending behavior — see Consequence 2 under Myth 2 above).

2.  Broad-based community notification will, in some cases, stigmatize and victimize children who were either the originally targeted victim or who are related to the offender.

Currently, when the offender and victim are related, such as in father-daughter incest, the identity of the child is protected by using only the defendant's initials in any public record of the proceedings.  Even newspapers generally respect the privacy of the child by only disclosing the defendant's initials.  The premise underlying this caution is obvious — we don't want to further traumatize the child.  Yet, once the father is convicted and either serves his time or is released on probation, he must now register as a convicted sex offender.  If the plan to publish the names, addresses, and pictures, among other pieces of information, on the Internet is implemented, this veil of privacy which has protected the child in the process up to this point, will be torn away.  That child may now find herself the subject of unwanted attention, ridicule and abuse by other children, or even adults, once it becomes known that her father was an incest offender.

Even in cases where incest was not involved and a family reintegrates after an offender has served his sentence, and moves to a new community to try and establish new ties and rebuild their lives, it isn't just the offender who is "outed" by the Internet posting, but the whole family.  Now the child or spouse of the offender must wear this scarlet letter as well as suffer the same societal isolation and potential ostracism as the offender himself (one doesn't need much imagination to envision the playground taunts the child of a sex offender will find him or herself exposed to).  This may be especially damaging to the family of an ex-sex offender whose children may be unaware of an offense committed by their father 20 years ago in his youth.  In fact, families of sex offenders have been affected by community notification, even when the offender doesn't live with the family any more.  For example, the wife of a convicted pedophile was evicted by her landlord, who alleged that her house would become a target for people upset that she was married to a molester (despite the fact that they were no longer living together).  She and her children were forced to live in her car, as she had nowhere else to go (reported in the Evening Post, Nov.18, 1998 and cited in Money, J, 1999a, p.225).

3.  Property values in communities in which a sex offender resides will drop, increasing the social ostracism and risk of vigilantism against the released offender.

One of the concerns leading to interest in posting sex offender information on the Internet was the fact that realtors are not permitted to disclose to prospective home buyers information about the presence of sex offenders in the neighborhood of a home they are considering purchasing.  An unintended consequence of making this information generally known, however, will be to diminish property values and discourage home buying in such neighborhoods.  Consider the plight of a homeowner who is attempting to sell his home which is located next to the home of a convicted sex offender.  Once homeowners begin to realize that a sex offender in their neighborhood is going to substantially affect their ability to sell their homes and will reduce their property values, it is reasonable to expect that efforts at driving that sex offender from that community will increase.  The uniform publication of sex offender information on the Internet under the purview of the sexually violent predators law will suffice to eliminate any distinctions in the varying risks individual sex offenders may pose to recidivate.  The family of a sex offender, be the offender a father or a adult child living at home (or even conceivably an adolescent offender) will be placed under the ostracizing pressure of the community to move.  Of course, moving will not solve the problem in that the pressure to move will again mount as soon as the new neighborhood discovers the presence of a sex offender in the family.

4.  Enormous expenditures of public resources will be inefficiently expended to maintain lifetime supervision of all sex offenders (for those states with a lifetime supervision component to their sex offender statute) regardless of reoffense risk.

Many states, including New Jersey, have added requirements to their criminal codes that requires lifetime supervision for sex offenders who commit their crimes after the date of enactment of the lifetime supervision statute.  Lifetime supervision usually entails a level of monitoring similar to that employed during a released convict's period of parole.  An individual under lifetime supervision must report on a regular basis to a parole officer, must seek permission of a parole officer to change jobs, to move, or engage in any variety of restricted activities which may be imposed by the parole office, including out of state travel.  Typically, the offender is not permitted to relocate out of the state without permission of the parole officer and only if the state to which the individual wishes to move is willing to accept responsibility for continued lifetime supervision (which is a burden one would imagine most states would seek to avoid assuming).  This last requirement has the paradoxical effect of keeping in the state for life those offenders whom the state apparently is most apprehensive about.  Since, effectively, they can never leave the state, the number of sex offenders who must be monitored will increase each year requiring additional expenditures of limited public resources.  The implications of such measures has been examined by at least one author who had the following observation:

One implication of the low recidivism rates [of sex offenders] is that blanket policies applied to all sexual offenders (e.g., lifetime surveillance or "one strike" laws) can be expected to expend resources on large groups of sexual offenders who would have stopped offending given even minimal intervention.  Proponents of blanket policies may argue that the inclusion of all sexual offenders is necessary to protect the public from those few who will reoffend.  The available research, however, suggests that not all sexual offenders have equal chances of recidivating.  Efficient justice systems would be those that applied the most intensive interventions to the highest risk offenders and managed the low risk sexual offenders with less restrictive measures (Hanson, 1998, p.67).

Arguably, any system which attempts to provide such widespread monitoring will ultimately overreach itself and fail in its mission (in New Jersey alone, there are currently over 7,000 sex offenders living in communities around the state-though most do not now fall under the lifetime supervision requirements, a similar number of offenders can be expected to be released under lifetime supervision requirements in the next 10 to 15 years).  Not only would focused interventions and monitoring of the most at risk offenders be a more efficient use of public resources, but such a limited approach may, in the end, also be more effective by virtue of being more manageable.
  

Myth 5

That most studies evaluating the effects of sexual abuse on victims document that the vast majority of victims are severely traumatized, suffering serious, long-term consequences well into adulthood.

With this myth, we return to the Congressional Censure of APA which introduced this piece.  There is tremendous inherent risk in exposing this myth.  The accusation will be raised that sex offenders may use such research to try normalize their behavior, or minimize the damage they do, or suggest that someone other than themselves are to blame for their sex offending behavior.  The authors of this piece do not subscribe to those views, and do not seek such outcomes.

The reality is, as the article in the Psychological Bulletin revealed, the majority of victims of sexual abuse in childhood and adolescence, survive that experience without long-term negative consequences.  Acceptance of this fact is no more an act of condoning sexual abuse than acceptance of the fact that most children who break a leg or arm in childhood suffer no long-term consequences serves to condone breaking children's arms or legs on a routine basis.  Society's inability to recognize that not all abuse is traumatic blinds society to some very good news and important information regarding treatment of sexual abuse victims.

First of all, the findings of this study should have been heralded as good news, especially to parents, who could be reassured that just because their child has been the victim of sexual abuse, doesn't condemn their child to a life of misery.  Second, there remains critical research to be pursued to identify what may underlie the differences between children who are severely traumatized and those who, while experiencing similar forms of abuse, appear to survive relatively unscathed.  Knowledge of the attributes of the child, characteristics of the offense, or responses of significant persons in their lives which may affect the child's perception of the abusive contact, may inform the therapeutic process in such a way as to aid therapists to reduce the trauma experienced by children.  Knowing the factors that distinguish the two groups would be critical to designing models of responding and treating child sexual abuse so as to inoculate the child against developing a pattern of sexual deviancy themselves.  A better understanding of these dynamics may well have informed the system adequately enough that its response to Sam Manzie would have been preventative of his later acting out sexually and violently.

Ultimately, intergenerational sexual contact is wrong for three reasons.  First, recognizing that childhood is a period of sexual development, during which patterns of sexual arousal and behaviors regarding the establishment and maintenance of intimate relations are formed (Money, 1999), adult-child sexual contact may severely disrupt normal sexual development.  Sex play typically occurs between children of similar ages who are on equal footing with one another, and is an activity of mutual self-discovery.  The imbalance in the power and knowledge between an adult and child and the requisite need to keep the contact secret, are insurmountable obstacles to any claim that such contact can aid in the child's sexual development.  In fact, it is just that imbalance which distorts the child's sexological development.

Second, notwithstanding the fact that many child sexual abuse victims don't suffer significant long term negative effects as discussed in the Rind study, it is morally unjustifiable to expose a child to the risk of social condemnation and abhorrence associated with adult-child sexual contact.  Most children recognize that they are being asked to collude in a socially condemned action which places them in a morally untenable situation, made more so by the fact that they may have an emotional investment in the relationship with the abuser outside of the abuse.

The third reason arguing against such contact is a response to one of the criticisms of the Rind study: that a percentage of both men and women reported, as adults, that their childhood sexual experiences with adults had had a positive effect on their lives.  Accepting their perceptions at face value, such outcomes cannot justify adult-child sexual contact because there are alternative, less invasive, morally justified means of having a positive influence on someone's life.

Arguably, an adult might be able to take the position that the death of a parent during her childhood, ultimately had a positive influence on her life (by teaching her self-sufficiency and independence, and by giving her the confidence to overcome other obstacles thrown in her path).  However, those same outcomes could have been achieved through means less traumatizing than the death of a parent.  And since there is no method of predicting whether the child will suffer long term negative consequences or not, engaging in adult-child sexual behavior is the equivalent of playing Russian Roulette with the child's emotional future and sexual development.

Having clearly laid out an argument for the inappropriateness of adult-child sexual contact, one can approach the impact of sexual abuse more dispassionately.  That sexual abuse must necessarily involve severe trauma to the child victim is a by-product of American society's ignorance of the sexological development of children (again, acknowledgment that childhood represents a stage in sexual development is not a justification for any adult to take advantage of that fact for their own personal sexual gratification).  The belief that the period of childhood before adolescence is a period of complete innocence of sexuality by children is inconsistent with the reality of childhood games of "playing Doctor" and the "show me yours and I'll show you mine" stage characteristic of early childhood.  These early manifestations of childhood sexual curiosity persist into middle childhood during which time the behavior may go more underground as children become aware that such sex play is disapproved of by adults.  The fact is that genital stimulation is pleasant and many children discover this on their own at an early age.

This fact cannot excuse an adult engaging in sexual contact with a child for the ostensible purpose of "sex education" or because the child "likes it."  It does, however, raise the question of how the child is asked to reconcile sexual contact with an adult which, upon discovery, is labeled as a traumatic event to which the child should be reacting with horror and revulsion, but which, during its occurrence, the child may have experienced as genitally pleasurable.  For such a child, the after-the-fact association of the "trauma" of the sexual abuse with the pleasant genital stimulation they may have experienced (in, for example, a case of fondling) may ultimately interfere with their later experience of sexual pleasure as an adult (Krivacska, 1990).

Childhood is also a period of learning from experience and from one's mistakes or errors of judgment.  Children routinely engage in behavior which, if committed as an adult, could be considered criminal.  Two children getting into a fight on a playground might find themselves charged with assault if the same behavior occurred between two adults.  A 6-year-old who throws a rock through a window is likely to be sternly punished by his parents and made to provide some kind of restitution.  But we don't lock 6-year-olds in jail for crimes against property.  Blind faith in the doctrine of childhood sexual innocence, however, not only has ramifications for our response to children who have been sexually abused, but has also redefined what we label as sexual behavior between children.  The penalty for an adult discovering two or more children engaged in peer sex play is no longer a verbal thrashing and confinement to one's room, but rather the labeling of the behavior as abusive with one of the children, typically, the boy, being labeled the abuser, and the other the victim.  As illustrated by one of the consequences listed below, this can even result in criminal prosecutions.
  

Consequences of this Myth

1.  Childhood sex play is becoming pathologized and criminalized, increasing the likelihood of establishing sex offending behavior patterns in children that will manifest itself as assaultive behavior in adulthood.

Recently, two 12-year-old boys and an 11-year-old boy were charged with sexual assault on a 9-year-old girl (the girl had indicated that her sexual contact with the 11-year-old had been consensual, but that the 12-year-olds had coerced her).  The fate of that case in New York is uncertain given the children's age.  In New Jersey, however, there is no presumptive age under which a child can not be prosecuted for a crime.  In a case several years ago, a county prosecutor attempted to charge and try two boys, ages 9 and 6, for sexual assault on a 6-year-old girl [State in the Interests of C. P. & R. D., 212 NJ Super 222 (1986)].  The judge in the case ruled that there was nothing in the NJ Criminal Statutes which prevented the prosecution of the children based on their age.  He interviewed the children, however, and found that they did not sufficiently understand the sexual nature of the contact they had with the girl to form criminal intent (the charge of sexual assault requires that the perpetrator be motivated by sexual gratification).  So, in that case, the two boys were spared from prosecution and, (since the actual sexual contact was not disputed) from adjudication as sex offenders, solely by the fact of their ignorance as to sex.  Had either of these boys been exposed to sufficient sex education such that the judge would have concluded that they did recognize that the genital contact was sexual in nature, presumably they would have been charged and convicted.

The shortcomings of any attempted solution of a problem may only become evident when the solution is subjected to an analysis of its impact when carried to its logical conclusion under extreme conditions.  Does the public really want to label childhood sexual explorations criminal and label a person a "sexually violent predator" for the rest of their lives based on behavior engaged in when they were 6 years old, or even 11 or 12?  (In New Jersey, the minimum age of consent is 12.  Thus, any sexual contact, regardless of whether it is "consensual," as in the universal childhood game of playing doctor, or not, is irrelevant.  Thus, both the 11-year-old and the 12-year-olds in the case noted above, could be charged, convicted as juveniles and suffer the sexually violent predator label — and be subject to community notification for life — under Megan's Law.)

This is not to say that children can't commit acts of sexual violence upon one another.  However, as any principal of any school will tell you, sorting out the facts when children are involved is an endeavor fraught with hazards.  In fact, the policy in many schools is that regardless of who "started" a fight, both students caught fighting are punished.  The logic behind that policy is that most kids will lie to protect their own interests and one is inevitably confronted with cross-accusations of "who started it," making it impossible to sort out the truth.

In the case involving the 11-year-old boy and 9-year-old girl in New York, the presumption of society is that the boy must have instigated and coerced the sexual behavior with the girl (remember the girl claimed it was consensual, so why is she not considered the abuser and the 11-year-old boy the victim?)  Asking the girl what happened doesn't ensure veracity any more than asking two juvenile pugilists, "Who started it?"  It seems hardly likely that any girl who either consented, or even initiated sexual activity with an agemate is going to admit it.  Rather, the girl is likely to blame the boy, "He made me do it."  (Consider what our response would have been if the boy and girl were caught stealing and the girl blamed the boy for "making her do it."  We would have been considerably less likely to accept her denial of responsibility so readily.)

Ultimately, the question becomes whether such cases are ever really appropriate for the criminal justice system.  For our purposes, however, the response of the criminal justice system, primed as it is for dealing with sex offenders based on a model of morally "bad" people, can only have negative consequences for children caught up in that system, including the possible consequence of creating a sex offender.

2.  Since not all children are emotionally traumatized by adult-child sexual contact, juries may be misled into disbelieving an accusation from a child who failed to display a traumatic response.

When child victims testify in court in cases of child sexual abuse, the jury expects to see a frightened, traumatized child, weepingly recounting the horrible acts of abuse committed upon him or her.  When the child fails to fit that stereotype, the jury may view the child's account as suspect, perhaps viewing the testimony as coached or rehearsed and the accusation fabricated for some ulterior motive, either on the part of the child or another adult in the child's life.  Such reactions may be played to by defense attorneys who may capitalize on any hint of fabrication.  Juries, and the public at large, must be prepared to accept that the majority of childhood sexual abuse victims, don't define their personhood on the basis of the abuse and don't necessarily display an obvious traumatic response.

3.  Failure to recognize that a child may have experienced sexual pleasure during abusive contact, and may feel guilt over disclosing the abuse, may itself, create trauma and sexual dysfunction in adulthood.

Again, without making any justifications for adult-child sexual contact, failure to acknowledge and discuss with the child the fact that he or she may have experienced sexual pleasure or arousal during the abuse, leaves the child's sexological development to chance, or at worse, gross distortion.  The child may feel guilt, not about having experienced pleasure from such social condemned contact, but from having disclosed the abuse.  Denial of that child's reality by teaching them that the contact was shameful and disgusting, even though directed at the adult abuser, can't help but affect the child's perception of self.  The child may rationalize — if the sexual contact was shameful and disgusting, than the sexual feelings may also be viewed as shameful and disgusting.  This may interfere with their later ability to experience sexual fulfillment in adulthood, or may even leave them so fixated on the sexual contact they experienced as a child, that they begin to repeat the experience with other children, even after entering adolescence and adulthood (Money, 1999b).

4.  The preoccupation with severe harmful effects of child sexual abuse experienced by a minority of victims feeds the currently held absurd societal view that a child's sexual innocence is worth more than his or her life.

Recently, Islamic countries have sought to put an end to "honor killings" in which family members kill a young female member of the family who has engaged in sexual activity prior to being married, as a means of preserving the family honor and in reaction against the defilement of the girl's sexual purity.  While Western Society recoils at such rationalizations for fratricide, the value system which undergirds this Islamic tradition is not so different from Western Society's and, in particular, American society's, as we might think.  It is not uncommon to hear such comments as "sexually abusing a child is worse than murder, because it destroys the child's innocence, because it kills the child's soul."  While such lamentations, as are often heard on daily TV talk shows, might be chalked up to rhetorical hyperbole, one need only look at the response of the justice system to acts of infanticide to wonder how deeply this prejudice might actually run in our culture.

That society may place greater value on a child's sexual purity than on a child's life is evidenced by the fact that Amy Grossberg, convicted along with her boyfriend of murdering their newborn daughter, served only 22 months of a 28 month sentence for her crime.  Had she or her boyfriend touched their daughter's genitals instead, and been charged with sexual contact, the minimum sentence they could have been given in New Jersey would have been 5 years.
  

Conclusion

Ultimately, society's interests are not served by preservation of myths about sex offending behavior.  Especially in these times, when it appears that incidence of sex offending behavior is increasing despite the heightened punishments that are being put into place, society needs to understand how sex offending behavior develops and what it can do to prevent offending behavior.  Community/Internet notification represents after-the-fact prevention.  As noted in the outset of this article, society needs to begin addressing prevention before the fact, since most offenses are committed by first time offenders.  In fact, between 10% to 20% of male community samples (e.g., university students, hospital staff, etc.) admit to sexual offending (Hanson & Scott, 1995; Lisak & Roth, 1988; Templeman & Stinnett, 1991).  As part of the recovery effort and treatment program at ADTC, and as part of a personal commitment to "No More Victims," many inmates at ADTC have spent considerable time and energy exploring the nature of the offending behavior in which they engage.  The ultimate challenge to a society which wants to protect its citizens, young and old alike, from sex offending behavior is to look realistically at the problem and to recognize that a potential sex offender may be living in their community, working in their business, residing even in their homes.  They most also recognize that dynamics are currently in place in contemporary society to foster the growth of the next generation of sexual offenders among their own children.  Society's ability to effectively and proactively prevent sexual offending behavior in the future may be directly related to its willingness to abandon the pursuit of interventions based on the myths which hithertofore have remained impervious to rational challenge and revision.
  

Footnotes

⁽¹⁾ Forensic psychologist, practiced for 10 years in New Jersey.  [Back]

⁽²⁾ Currently inmates of the Adult Diagnostic and Treatment Center.  [Back]

⁽³⁾ The Adult Diagnostic and Treatment Center is a correctional facility run by the New Jersey Department of Corrections housing offenders who have been adjudicated as compulsive and repetitive sex offenders under New Jersey Law.  The facility is the largest treatment facility for sex offenders in the world, housing over 700 male inmates.  [Back]

⁽⁴⁾ Although statistics are difficult to come by, the state reported that 182 of 712 (or 25%) convicted sex offenders were paroled between 1980 and 1994 before their maximum release date, a figure cited by the New Jersey Supreme Court in John Doe v. Poritz (1995).  Since the murder of Megan Kanka, the number of inmates paroled from ADTC has dropped to a trickle.  Although confirmation of official numbers was not available, reports from the inmate population at ADTC suggest that no one has been paroled from ADTC for at least the last two years.  [Back]

⁽⁵⁾ NJSA 30:4-27.26 identifies sexually violent predators as subject to civil commitment based on the following definition of a predator:

"'Sexually violent predator' means a person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense, or has been charged with a sexually violent offense but found to be incompetent to stand trial, and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment."

The statute, in turn, defines mental abnormality as:

"'Mental abnormality' means a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence."

Finally, another key component of the definition of "sexually violent predator" is also defined as follows:

"'Likely to engage in acts of sexual violence' means the propensity of a person to commit acts of sexual violence of such a degree as to pose a threat to the health and safety of others."  [Back]
  

References

American Psychiatric Association (1994). Diagnostic and statistical manual of mental disorders (4th ed.). Washington, DC: Author.

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