Sex Offender Laws: Fair for Some, Draconian for Others

In my previous posting to this site, “Is it Automatically OK to Hate Sex Offenders?,” I discussed the various types of sexual offenders, noting that some are more likely to respond to treatment and less likely to reoffend than others. In this follow-up article, I discuss the fact that even though not all sex offenders are created equally, they are uniformly subjected to the same highly punitive and largely inflexible sentencing laws. Both my previous posting and this article are drawn from an academic report I was asked to write for Sex Offender Law Report. That article appears in their Dec/Jan 2017 issue.

To sum up my previous posting, I will state that there are five basic categories of sexual offenders:

• Violent offenders
• Fixated/dedicated child offenders
• Situational/regressed child offenders
• Situational offenders (non-child)
• Sexually addicted offenders

As discussed in my previous article, the initial two categories, violent offenders and fixated/dedicated child offenders, typically do not respond well to treatment, and they are relatively likely to commit further offenses. Conversely, situational and addicted offenders generally respond well to treatment, and, in general, they are relatively unlikely to commit further crimes.

Interestingly, two offenders can be charged with the same crime (possession of child pornography, for instance), but fall into very different typologies. For instance, a fixated/dedicated child offender might be caught with half a dozen illegal images on his computer, as might a situational or addicted offender. The difference is the fixated/dedicated child offender has no sexual interests beyond his or her attraction to minors, and because of this may feel that he or she has a right to satisfy this “God-given interest.” Most likely, this offender found child porn when he or she intentionally went looking for it. Meanwhile, situational and addicted offenders typically stumble across child porn while perusing legal porn, finding it arousing and perhaps looking for more of it. Generally, these offenders feel great shame and remorse, and after they are caught they admit what they’ve done and gratefully accept counseling designed to help them. However, the American legal system provides little opportunity to differentiate between these offenders, and they will likely receive the same highly punitive sentence even though one of them presents little danger to self, family, community, or society.

A simple and undeniable truth about sex offenders and the American legal system is that punishments have escalated significantly in recent years. Between 1994 and 2007, for example, the mean sentence for a child pornography conviction rose from 36 months to 110 months.¹ For the most part, this escalation is a direct result of changes to federal (and sometimes state) sentencing guidelines—mandates mostly enacted as an over-the-top response to an ongoing series of media misrepresentations, in particular sensationalist television shows like To Catch a Predator, plus a single piece of now heavily criticized research known as the Butner study.

The Butner study, coauthored by a US Marshall, looked at 155 men convicted of child porn offenses, finding that many of these individuals had also committed a previously undisclosed and unprosecuted hands-on offense.² However, because of its inherent bias and some blatantly obvious design flaws, more equitable researchers believe (and have stated rather vociferously) that the Butner Study does not definitively establish a causal relationship between the viewing of child pornography and contact sexual offending.³ In fact, better designed, less biased, peer-reviewed scholarly studies almost uniformly show results that are diametrically opposed to the Butner Study.

Much of the recent credible research into sexual offending (especially offending against children) has been done by renowned Canadian scholar Michael Seto, Director of Forensic Rehabilitation Research at Royal Ottawa Health Care and author of the 2013 book, Internet Sex Offenders. In a 2005 study, Seto and his colleague, Angela Eke, looked at 201 convicted child porn offenders, finding that both recidivism and escalation into hands-on offending are relatively predictable among this population. Moreover, the most likely indicator for both recidivism and escalation is a prior history of other criminaloffenses rather than a sexual attraction to minors.⁴ In other words, Seto and Eke found that a child porn user’s attraction to minors is not a primary risk factor for future sexual offending, while a history of criminal behaviors in general is a major risk factor—perhaps indicating an ongoing propensity to disregard laws in all areas of life.

And this is hardly a lone finding. Seto and Eke’s groundbreaking work has been backed up by other researchers, most notably a 2009 European study by Swiss and German scientists. This study found that among people who had not previously committed a hands-on sexual offense, the viewing of child pornography—even the extensive viewing thereof—was not, by itself, an indicator of future hands-on offending. In fact, only 1 out of 220 test subjects without a prior contact offense went on to commit one.⁵

Thanks to these and other studies, the Butner study is now thoroughly discredited. Nevertheless, the unforgiving laws it helped to create remain in place, adversely affecting numerous sexual offenders—most notably situational and addicted offenders who might better respond to treatment than imprisonment. And there is little opposition to this, because what media personality or politician would advocate for offenders when there is so much to be gained with the opposite stance. Thus, our current sentencing guidelines are for the most part highly punitive and one size fits all in their approach, with the vast majority of sex offenders treated as if they are an ongoing high-level danger to society, even though their motivations for offending, their likely response to informed treatment, and their potential for reoffending may vary greatly.

Unfortunately, many members of the clinical and legal communities are not fully versed in the clinical intricacies of sexual offending. Instead, like the general public, they possess only a rudimentary and sensationalized view of sexual misbehavior. The criminal justice system, thanks to harsh mandatory sentencing guidelines, is especially deaf, dumb, and blind in this regard. At best, therapists, defense attorneys, and other officials can work together to evaluate a particular offender’s motivations, history, and likelihood of future wrongdoing, and to present, when appropriate, an argument for therapeutic rather than purely punitive sentencing. However, even when that occurs the court may still be required to mete out a harsh mandatory sentence.

So what can be done, you might ask? For starters, those of us who work in the mental health profession, especially those of us who work with sexual trauma survivors (as I do), can learn the truth about the different types of offenders. And then we can educate and advocate with the media, the judicial system, and the general public, working to ensure outcomes that are best for the client as well as the public. In becoming better informed, we can combat the highly biased media vision of sexual offenders, working to end the fearmongering and to put a more accurate face on the issue.

Those of us who research, treat, and manage this population are well aware of the fact that most sex offenders are neither violent rapists nor snatch and grab child molesters. Sure, that depiction makes for exhilarating TV, but it’s just not accurate. Such individuals are in fact a very small percentage of the overall offender population. The less exciting but much more accurate reality is that most sex offenders are relatively normal people who’ve simply made a mistake that they deeply regret. They typically don’t deny what they did, they generally feel great shame about it, and they are nearly always motivated to accept treatment and to make whatever life changes are necessary to avoid repeating their problematic behaviors.

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