Justice Perverted Sex Offense Law, Psychology, and Public

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To Sharon:
from your rock to my rock.
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preface

ew York State’s Sex Offender Management and Treatment Act

N (SOMTA) became effective April 13, 2007. The major purpose of
SOMTA was to create a system under which some convicted sex offenders
who had completed their prison sentences could be retained in state custody
indefinitely. According to the state, the statute “establishe[d] an elaborate
process for evaluating the mental condition of certain sex offenders who
are scheduled to be released… to determine whether the individual is a ‘sex
offender requiring civil management.’”1 A “sex offender requiring civil man-
agement” was defined as one having “a mental abnormality which predis-
poses him or her to sexual offending.”2 Under the law, such offenders are
deemed by the court to be “either (1) a dangerous sex offender requiring civil
confinement (who would be confined to a secure treatment facility operated
by OMH [the Office of Mental Health]), or (2) a sex offender requiring strict
and intensive supervision and treatment (who would be supervised by a Parole
Officer in the community).”3
Having followed the legislative process leading to enactment of SOMTA
and having read the entire legislative history of the statute, I was aware
that this law, though opposed by organized psychology and psychiatry, was a
veritable “full employment for psychologists act.” SOMTA not only required
OMH to hire a large cadre of psychologists and other mental health profes-
sionals to screen incarcerated sex offenders who were about to be released
and also to conduct initial evaluations of these inmates. The law also man-
dated that each offender petitioned under the new law be entitled to an inde-
pendent, court-appointed and state-paid psychological expert, who would
examine the offender, prepare a report for the court, and, if requested, provide
expert testimony. Moreover, given the adversarial nature of the complex legal
proceedings provided for in the statute, it was obvious that the state’s attorney
general’s office (which would prosecute these cases) would also hire psycho-
logical experts of its own to evaluate these offenders and testify against them
in court.

vii
preface

As a forensic psychologist with over three decades of experience evaluating

both victims and perpetrators of sex crimes, I was intrigued by the new law
and immediately became involved in its administration by serving as an
independent, court-appointed “psychiatric examiner.”
As I began this work, it became immediately evident to me that almost
none of the players (whether judges, lawyers, or psychologists or other mental
health professionals) in the newly created system had much experience or
knew much about sex offenses, sex offenders, or the victims of these offenses.
Experts from out of state were brought in at great taxpayer expense to teach
brief crash courses for the newly minted state psychologists and other mental
health professionals hired by OMH under SOMTA. Some of these experts
brought with them a handful of checklists they claimed could help differenti-
ate dangerous from non-dangerous sex offenders.
Soon, New York’s courts were humming with hearings and trials under
the new law, and judges and attorneys on both sides were being told by
psychologists, equipped with the Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition (DSM-IV) and these recidivism checklists, that they
were able to diagnose “mental abnormality” and determine which offenders
were “predisposed to sexual offending.”
As of March 12, 2010, the total number of sex offenders confined under
SOMTA was 209; 119 had been adjudicated as “dangerous sex offenders
requiring civil confinement”; 90 were confined with these offenders while
awaiting trial under SOMTA.4 The basic annual cost of confinement (i.e.,
keeping these offenders in a locked, secure facility) at that date was $175,000
per offender.5 As of the same date, 70 offenders had been found to require
“strict and intensive supervision and treatment” (SIST) in the community at
an annual cost of $42,000 per offender.6 Other costs, including those related to
the legal process, experts, and specialized treatment of some offenders, have
yet to be calculated.
While the numbers of released sex offenders committed to secure facili-
ties or placed on SIST under SOMTA were mounting steadily, and the costs
of administering the law were rapidly rising, New York State was hit with the
worst fiscal crisis since the Great Depression and was facing an annual budget
deficit in excess of $8 billion. At one point, in 2008, the Governor announced
that the state’s budget deficit had grown by $1.4 billion in just 90 days.7 As
this book is written, the state is teetering on the verge of bankruptcy and the
Governor and members of the state legislature are considering imposing
draconian cuts in state funding for public schools, health care, and the state
university system as well as closing many state parks and even a number of
prisons.8

viii
 preface

Though my interest in New York’s new sex offender law was sparked by
my training and experience as a forensic psychologist, the more work I did on
cases under SOMTA, the broader my interest became. Having also been
trained in law and social policy, I quickly became fascinated with the legal and
policy implications of this law, particularly given the state of government
finances in New York and other states and at the federal level. I began examin-
ing the sex offender commitment laws in 19 other states as well as one recently
passed by the U.S. Congress. Before long, I found myself immersed in a study
of not only sex offender commitment laws like SOMTA, but all laws dealing
with these offenders at the federal, state, and local levels. As a psychologist,
I was struck by the extent to which sex offender laws relied upon psycholo-
gists and other mental health experts, who often appeared to be making
judgments and offering opinions with little if any empirical basis. As a lawyer
and law professor, I was troubled by the extent to which many courts, includ-
ing the U.S. Supreme Court, appeared willing to strain longstanding legal and
constitutional doctrines to uphold some of these laws. Finally, as a social policy
analyst, specifically trained in program evaluation, I wondered whether the
benefits of these laws justified their costs.
Soon my study of these laws became the basis for this book. Realizing that
tackling the multitude of laws dealing with sex offenders would be impracti-
cal, I decided to focus on four particularly intriguing aspects of American sex
offender law: civil commitment statutes such as SOMTA; sex offender regis-
tration, notification, and restriction laws; child pornography laws; and laws
against using the Internet to sexually entice minors.
From the outset I realized that any effort to analyze these laws from a
psychological, legal, or public policy perspective would be difficult and that
trying to do so from all three perspectives would be a daunting task. I also
realized that the results of any such effort, when reduced to the written word
in a book such as this, would likely be controversial and open to criticism.
Although I fully anticipate that what I have written in this book will
generate controversy and criticism from some quarters, I have strived to look
at these issues with the open mind of a social scientist trained to understand
and critically interpret empirical data and a lawyer trained to see all sides of
every question.
To that end, readers are warned that I have relied heavily upon empirical
data and have cited many statistics and research findings, often specifying
them in great detail or even quoting them at length rather than simply sum-
marizing them. My goal in that regard is to allow the reader to see the data
for himself or herself, rather than through my eyes, however wide open they
may be. Similarly, I have presented the legal reasoning of many courts, the

ix
preface

precise language of which I frequently quote. Because I expect that many

readers of this volume will not be lawyers, I want them to have the opportu-
nity to read directly what the courts have said about their reasoning on these
issues, rather than simply read my summaries of that reasoning. Additionally,
in many instances I have quoted applicable statutory law at length so that
readers can appreciate the full impact and meaning of these laws. Also, at
numerous points in this book, I have quoted, at varying lengths, actual tran-
scripts from trials and, in one chapter, online “chats” between sex offenders
and “decoys” the offenders believed were minors. While I could have sum-
marized some of this information, I chose to provide readers with (sometimes
extensive) direct quotes from which they can make their own judgments. In
that regard, another warning is in order: many accounts of sex offenses in this
volume are graphic and some readers may find them unpleasant or offensive.
I chose not to censor or sanitize these accounts because I believed doing
so might reasonably have been perceived as minimizing the repulsive, often
horrific, nature of some of these offenses.
Finally, while I have tried to be as open, objective, and informed as possible,
I have also not shied away from offering my own conclusions and recommen-
dations with regard to the future of these laws. Readers may be interested to
know, however, that in the course of researching these laws and the empirical
data related to them, my thinking about some of them changed significantly.
I hope that what I have written here may lead some readers to question, if not
change, their positions as well.

x
acknowledgments

or over 30 years I have been asked what it takes to write a book. My

F response has often been peppered with words and phrases such as inspira-
tion, discipline, persistence, and willingness to be publicly criticized by others.
But the more I have written, the clearer it has become that the most important
asset any author has is the help of others.
This book could not have been written without a lot of help from a lot of
people. Among those to whom I am most grateful are:
Regan Hofmann of Oxford University Press, who saw the value in this
book well before it was written and encouraged me to write it;
My friend, Minsuk Kim, who immersed himself in the project from the
start and helped shape my thinking with both data and arguments;
My research assistants, Bryant Cherry-Woode and Christopher Moran,
both former students of mine who left no stone unturned in their efforts to
give me access to all the material I needed, no matter how obscure or difficult
to obtain;
My colleagues, attorneys Margot Bennett, Kevin Doyle, Keith Fehrer,
Diane Gastle, Jim Gormley, Jeff Lacey, John Nuchereno, and Vicky Valvo,
who all helped educate me as to many of the legal issues regarding sex
offenders; and
My wife, Dr. Sharon Harris-Ewing, whose love, support, encouragement,
and tolerance contribute to every word I write.

xi
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contents

Introduction xv
1. Civil Commitment of Sex Offenders 3
2. Sex Offender Registration, Notification, and
Restriction Laws 69
3. Possession of Child Pornography 117
4. Internet Sex Offenders 174
Epilogue 205
Notes 209
Index 236

xiii
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introduction

The last great criminal war, the War on Drugs, resulted in an

erosion of civil liberties, mass incarceration, and a fundamental
reorientation of American criminal justice. As the War on Drugs
loses momentum, there is an opportunity for a war against sex
offenders to replace it. If such an eventuality takes place based only
upon the body of laws currently targeting sex offenders, the likely
social effects will be similar to the War on Drugs. If, as occurred
during the drug war, the laws are expanded to further restrict sex
offenders, the social and financial costs to America could be
enormous. – Corey Rayburn Yung (2010)1

Sex offenses have a unique status among crimes in the United States and
many other countries. Not without good reason, aside from homicides, these
offenses are often regarded as the most heinous of all crimes. The victims of
rape and other forms of sexual abuse frequently suffer devastating short-
term and long-term physical and psychological consequences. These conse-
quences may be especially severe for sex crime victims who are children.
Fortunately, for roughly the past two decades, the number of reported
sex offenses in the United States has been declining steadily. For example,
in 2008, the most recent year for which complete national data are cur-
rently available, the Federal Bureau of Investigation (FBI) reported that the
“estimated number of forcible rapes (89,000)” represented “the lowest figure
in the last 20 years”—a decrease of 1.6 percent from the 2007 estimate and
6.4 percent lower than the FBI’s 2004 estimate.2
Because the FBI data include only reported crimes, and many crimes (espe-
cially sex offenses) are never reported, the U.S. Bureau of Justice also calculates
criminal victimization statistics through its National Crime Victimization
Survey (NCVS). The NCVS is “an ongoing survey of a nationally representa-
tive sample of residential addresses [and] is the primary source of information
on the characteristics of criminal victimization and on the number and types of
crimes not reported to law enforcement authorities.”3 The NCVS defines rape

xv
introduction

as follows: “Forced sexual intercourse including both psychological coercion as

well as physical force. Forced sexual intercourse means vaginal, anal or oral
penetration by the offender(s). This category also includes incidents where the
penetration is from a foreign object such as a bottle. Includes attempted rapes,
male as well as female victims and both heterosexual and homosexual rape.
Attempted rape includes verbal threats of rape.”4 According to the NCVS, the
number of rapes (so defined) “per 1,000 population age 12 or older” decreased
from 2.8 in 1979 to 0.5 in 2008—an 82 percent drop.5
The decline in sex offenses against children in roughly the same time
period was almost as dramatic. According to the NCVS, the number of rapes
and sexual assaults committed against juveniles 12 to 17 years old decreased
from 4.0 per 1,000 in 1993 to 2.2 per 1,000 in 2003—a 45 percent drop.6
Also, as Finkelhor and Jones reported in 2006, the annual number of
substantiated cases of child sexual abuse “started to decline in the early 1990s,
after at least 15 years of steady increases” and between 1990 and 2004 the
annual number of such cases decreased 49 percent.7 Finkelhor and Jones
acknowledged that “Because the sexual abuse (and other child maltreatment)
figures are based on reported cases known to and substantiated by state child
protection agencies, observers have speculated that the decline might… simply
reflect changed standards for investigation, decreased reporting to agencies,
reduced funding, staff and interest, or statistical or other artifacts.”8 These
researchers, however, rejected such speculation and noted that “after consid-
erable efforts to study the CPS data in context, we have concluded that they
probably reflect at least in part a real decline in sexual abuse.”9
Meanwhile, other data gathered by the federal government regarding
sex offenses were describing sex offenders and their relationships to their
victims. To begin with, the NCVS and other data confirmed that, contrary to
common belief, most sex offenses are not committed by strangers but rather
by individuals known to their victims. For example, the 2002 NCVS found
that non-strangers committed 69 percent of all sexual assaults against female
victims; 57 percent were committed by a friend or acquaintance, 10 percent by
an intimate partner, and 2 percent by one whose relationship to the victim
was unknown.10 The 2002 NCVS also found that non-strangers committed
52 percent of all sexual assaults against male victims, who were seven times
less likely than females to be sexually assaulted.11 The 2004 NCVS deter-
mined that only 26 percent of rapes and sexual assaults on female victims
were committed by strangers; 38 percent were committed by a friend or
acquaintance of the victim, 20 percent by an intimate partner, 7 percent by
some other relative; and 2 percent were committed by perpetrators whose
relationship to the victim was unknown.

xvi
 introduction

Additionally, a 2000 report from the U.S. Bureau of Justice Statistics

dealing with reported cases of child sexual abuse revealed that, at all ages,
children were very unlikely to be sexually victimized by people they did not
know.12 Family members were the perpetrators in 51.1 percent of the cases
involving girls 0 to 5 years old, 43.8 percent of those involving girls 6 to 11,
24.3 percent of those involving girls 12 to 17, 42.4 percent of those involving
boys 0 to 5, 37.7 percent of those involving boys 6 to 11, and 23.7 percent
of those involving boys 12 to 17. Acquaintances were the perpetrators in
45.9 percent of the cases involving girls 0 to 5 years old, 51.4 percent of
those involving girls 6 to 11, 65.7 percent of those involving girls 12 to 17,
54.1 percent of those involving boys 0 to 5 years old, 57.7 percent of those
involving boys 6 to 11, and 68.7 percent of those involving boys 12 to 17.
Strangers were the perpetrators in only 3.0 percent of the cases involving
girls 0 to 5 years old, 4.8 percent of those involving girls 6 to 11, 10 percent of
those involving girls 12 to 17, 3.5 percent of those involving boys 0 to 5,
4.6 percent of those involving boys 6 to 11, and 7.6 percent of those involving
boys 12 to 17.
Around the same time—the 1990s to mid-2000s—other data collected
and published by federal and state agencies were revealing that, contrary to
popular and political perception, sex offenders were rather unlikely to recidi-
vate. For example, one federal study found that among all sex offenders (i.e.,
those convicted of rape, sexual assault, statutory rape, and child molestation)
released from prison in 15 states in the same year, only 5.3 percent were
re-arrested for a sex offense within 3 years of their release.13 Published data
from other states found similarly low rates of recidivism among convicted sex
offenders, ranging from 3.21 percent to roughly 7 percent.14
Despite these data suggesting that sex crimes were dramatically decreas-
ing in number, that most sex offenses were being committed by relatives and
acquaintances rather than strangers, and that only a small percentage of
convicted sex offenders were recidivating, the past two decades have been
marked by an unprecedented spate of tough and expensive state and federal
legislation that has recently been referred to as an “emerging criminal war on
sex offenders.” 15
To date, this “war on sex offenders” has included a wide variety of federal,
state, and local laws. For example, every state has now adopted its own version
of “Megan’s Law,” requiring convicted sex offenders to register with the state
and to have their photographs, names, addresses, and other information about
them made readily available to the public on Internet websites and through
other media. Registration is generally required on an annual basis, and failure to
register is itself a serious crime, punishable by imprisonment. Many offenders

xvii
introduction

are required to register for the rest of their lives. Moreover, many states and
municipalities have passed residency restriction laws prohibiting convicted
sex offenders from living, working, or even being in certain geographical areas
such as 2,500 feet from a school, day care center, park, or other place where
children may congregate.
The “war” on sex offenders has also included the imposition of lengthy
prison sentences for those who utilize the Internet for criminal sexual
purposes. For example, recently enacted federal laws mandate a minimum
sentence of 10 years in prison for anyone convicted of using the Internet to
attempt to entice a minor (or an adult posing as a minor) to engage in sexual
acts. Additionally, under federal and some state laws, many individuals
convicted of receiving and possessing child pornography are now routinely
incarcerated for one or more decades.
Finally, this “emerging criminal war on sex offenders” now includes the
“sexually violent predator” laws that have been enacted between 1990 and
2008 in 20 states and the federal jurisdiction. Under these statutes, convicted
sex offenders who have fully served their criminal sentences may be indefi-
nitely committed to secure prison-like treatment facilities if they are found to
have a “mental abnormality” that makes them likely to reoffend.
All of these laws are aimed at reducing the incidence of sexual offending,
especially against children. All are predicated on psychological assumptions
about sex offenders. And all of them raise significant legal and public policy
questions.
This book examines these laws from three perspectives: psychology, law,
and public policy. Are these laws supported by, or consistent with, psycho-
logical and other empirical data? Are court decisions upholding the constitu-
tionality of these laws consistent with such data and the ability of psychologists
and other experts to predict future dangerousness? Finally, given their costs
and benefits, do these laws represent sound public policy and a wise invest-
ment of increasingly limited taxpayer dollars in the government’s efforts to
reduce the incidence of sex offenses?
Chapter 1 deals with sexually violent predator (SVP) laws. The chapter
begins by looking at the historical roots of these laws, which lie in what were
once known as “sexual psychopath” laws—long-abandoned statutes that
similarly attempted to reduce sex offending by a special commitment and
treatment process aimed at certain sex offenders. This chapter also reviews the
various SVP statutes and the major court decisions that have upheld these
laws; presents and analyzes statistics on the implementation of these laws;
explores the significant controversy these laws have engendered among
psychologists and other mental health experts, especially with regard to the

xviii
 introduction

concept of “mental abnormality” and the ability of mental health experts to

predict sexual recidivism; reviews the data regarding the efficacy of psycho-
logical and other treatment modalities that are critical to the constitutionality
of SVP laws; and weighs the economic and other costs and benefits of the
nation’s current SVP statutes.
Chapter 2 examines sex offender registration, notification, and restriction
laws. As in the preceding chapter, the analysis begins by looking at the his-
torical roots of these laws, now long-defunct efforts by a number of states to
monitor the whereabouts of convicted sex offenders. This chapter also traces
the legislative and judicial history of these laws from 1990 to the present and
examines this body of law in light of empirical data regarding sex offender
recidivism and the deterrent efficacy of sex offender registration, public
notification, and restrictions on where convicted sex offenders may live, work,
or travel. Finally, this chapter details and then weighs the economic and other
costs and benefits of these laws.
Chapter 3 deals with laws criminalizing the possession of child pornogra-
phy and mandating lengthy prison terms for many of those convicted of this
offense, particularly those sentenced in federal courts. The chapter begins
with a historical overview of child pornography laws in the United States.
This chapter then details current laws and penalties, with particular emphasis
on the relationship of the U.S. Federal Sentencing Guidelines to the increasing
length of incarceration for those convicted of possessing child pornography.
This chapter also reviews current psychological data and understanding with
regard to child pornography and those who possess it, paying particular
attention to the question of whether these individuals are (or are likely to
become) “hands-on” child sex offenders. Finally, this chapter looks at U.S.
child pornography laws and sentencing from a comparative law perspective,
estimates the cost of lengthy prison terms for child pornography offenders,
and considers alternative methods to reduce the production, distribution, and
possession of child sexual abuse images.
Chapter 4 examines laws, sentences, and law enforcement methods
applicable to individuals who use or attempt to use the Internet as a means of
arranging sexual encounters with minors, mostly teenagers. After reviewing
the law and federal sentencing structure related to this offense, this chapter
presents empirical data on the nature and scope of this crime and reviews
psychological research on those who commit this offense and the danger they
pose to minors. These analyses are followed by an examination of so-called
sting operations used by law enforcement and private organizations in which
Internet sex offenders are led to believe that they are attempting to sexually
lure a teenager but are instead communicating online with an adult “decoy.”

xix