Recidivism Of Sex Offenders Essay, Research Paper

Sex offenders have been a serious problem for our legal system at all levels, not to mention those

who have been their victims. There are 43,000 inmates in prison for sexual offenses while each

year in this country over 510,000 children are sexually assaulted(Oakes 99). The latter statistic, in

its context, does not convey the severity of the situation. Each year 510,000 children have their

childhood’s destroyed, possibly on more than one occasion, and are faced with dealing with the

assault for the rest of their lives. Sadly, many of those assaults are perpetrated by people who

have already been through the correctional system only to victimize again. Sex offenders, as a

class of criminals, are nine times more likely to repeat their crimes(Oakes 99). This presents a

problem for the public, as potential victims, and the legal system which is entrusted by the public

for protection. It would be irresponsible for the legal system to ignore the criminal class of sex

offenders, for they are subject to a recurring physiological urge that requires the use of effective

restraints that would curb the habitual repetition of episodes producing the harmful consequences

to the public(Schopf 95). In light of this realization, steps beyond treatment have been taken to

reduce the recidivism rate of sex offenders. Notification laws, special supervising techniques by

parole officers, and both surgical and chemical castration are techniques used in various forms in

this country and abroad with success. However, notification laws and both forms of castrations

have not come about without criticism on constitutional grounds. Any criticism should take into

account the extraordinary recidivism rates found only in the criminal class of the sex offender.

A study found in the Journal of Interpersonal Violence by Michael C. Seto and Howard E.

Barbaree looked at 224 sex offenders. Of those men, 33 committed a new offense of some kind

for a general recidivism rate of 14.7 percent. Even more interesting was the study did not support

the idea that good treatment behavior, as in positive or appropriate behavior in group sessions,

good homework assignments, and positive ratings of motivation, could be associated with a less

of a chance for recidivism. They gave two possible reasons for this finding. Sex offenders, by the

very nature of their criminal behavior, are masters of manipulation and exploitation. These

individuals can exhibit behavior that contributes to favorable assessments. The second possible

reason is these skills are learned, or enhanced, in the treatment setting. Data from a program

evaluation by Quinsey et al in 1998 is consistent with this interpretation. They hypothesized that

it was due to exposure to sexually deviant material or by learning about others’ modi operandi.

A more recent study, published in the same journal, by Looman et al in 2000 suggests the

opposite. Of the released sex offenders they studied they found a 23.6 percent recidivism rate for

those treated while a 51.7 percent rate for the untreated group. They also conducted an analysis

separately on the outcome for men who had previous sexual convictions. Those with no previous

sexual offense convictions had a 20.9 percent recidivism rate of the treated men compared to 42.9

percent of the untreated men. Of the men with previous sexual offenses, 26.1 percent of the

treated group sexually reoffended compared to 73.1 percent of the untreated men. According to

this study, treatment is invaluable in minimizing the recidivism of sex offenders with previous

offenses. With such conflicting reports on the effectiveness of treatment it is easy to see why our

legal system has taken other steps to keep sex offenders from continually victimizing.

Registration of sex offenders began in 1994 with the Jacob Wetterling Crimes Against

Children and Sexually Violent Offender Registration Act. It encouraged states, by threatening to

hold back ten percent of their crime-fighting funding, to establish systems where anyone who

commits a sexual or kidnapping offense against a child is required to register his or her address

with the state apon release. The original version gave law enforcement agencies the choice when

to release an offender’s information if they thought it necessary for the public’s protection.

Unfortunately, some law enforcement agencies did not do so(Oakes 99).

On July 29, 1994, the ineffectiveness of the current notification law became painfully

apparent. Megan Kanka, unbeknownst to her or her family, lived across the street from three

convicted sex offenders. On that day Jesse Timmendequas, a twice-convicted sex offender, lured

Megan into his house by promising to show her a new puppy. He then raped and murdered her.

Other than the three men, no one in the residential neighborhood of Trenton, New Jersey was

aware of their criminal backgrounds(Oakes 99). Timmendequas had been released despite his and

his therapist’s doubts that he could adjust to life outside of prison. On top of this, he had been

granted early release for “good time”, even though failed to participate regularly in prescribed

therapy. “Had I known that there were three pedophiles living across the street from my home, I

never would have allowed Megan to walk out of the door of my house alone. I guarantee she

would be alive today,” stated Maureen Kanka(Martin 96).

In response to this preventable atrocity New Jersey enacted Megan’s Law. On May 17,

1996 President Clinton, on recommendation from The Department of Justice, amended the 1994

Wetterling Act with Megan’s Law requiring agencies to release information in all cases necessary

to protect the public and allowing any registry information to be disclosed for any purpose

permitted under state law. Today, all 50 states require convicted sex offenders register with

states agencies of law enforcement. As of February 1998, there were nearly 240,000 offenders

registered in the United States(Oakes 99).

Even still, not all registry information is disseminated to the public. Some states

numerically rank offenders using tier levels according to factors used to determine the offender’s

risk of re-offense. The higher the tier classification, the more information about the offender is

released to the public. Classification is done by either prosecutors, boards, or clinics. Every

offender is at least assigned to the low risk Tier 1, where only the law enforcement agency is

notified. A Tier 2 ranking, considered moderate risk, requires that notification be made to

agencies, schools, and community organizations. A Tier 3 ranking is considered high risk and

community notification is required. In addition, some states require that the sex offender be given

notice to the classification. This allows for a review process if the offender wants to challenge the

classification(Oakes 99). Such a system is likely an effort to head off constitutional challenges, of

which there have been many.

Sex offenders have raised challenges to notification laws based on the Bill of Attainder,

Cruel and Unusual Punishment, Double Jeopardy, Due Process, Equal Protection, and Ex Post

Facto Clauses in the United States Constitution. In the Michigan case, Doe v. Kelley ‘97, the

court held that because notification does not constitute a punitive purpose, the Bill of Attainder

Clause was not violated. A New Jersey court, in Paul v. Verniero ‘97, held that notification does

not constitute punishment and does not violate the Cruel and Unusual Punishment Clause. In

1997, the Double Jeopardy and Ex Post Facto Clause arguments were defeated in Kansas v.

Hendricks when the court held that notification did not amount to a second trial. In Femedeer v.

Haun ‘99, the Utah court set up a two step analysis that an offender must meet before

demonstrating a violation of the Due Process Clause. The first step is to determine if the state

interfered with a liberty interest. If an interest exists, then it must be determined if the procedures

for the deprived interest are constitutionally sufficient. Several federal courts have found these

challenges fail(Oakes 99).

Simply notifying the public does not remove the responsibility of the legal system from

keeping sex offenders from committing another offense. If the correctional system releases a

convicted offender and places him or her on parole they must be supervision. A study found in

the Journal of Criminal Justice and Behavior, by R. Hanson and Andrew Harris, looked at

possible behavioral indicators predicting the recidivism of a sex offender. They found recidivists

generally have poor supports, attitudes tolerant of sexual assault, antisocial lifestyles, poor

self-management strategies, and difficulties cooperating with supervision. Most importantly,

recidivists showed increased anger and distress just before reoffending. That being said,

supervision is incredibly important in preventing further victimization. The Florida Department of

Corrections has outlined six special considerations for the supervisors of sex offenders. Contacts

in the field should be irregular and unpredictable, and weekend visits are a necessity.

“Walk-throughs” are important during home visits. Items, like toys and stuffed animals, teen

magazines, cameras, children’s clothing, video games, or any suspicious materials, should raise a

red flag. Making occasional contact with family, friends, and the offender’s counselor may yield

useful information. Employers should be contacted and have an understanding for what the

offender is on probation for. Employers are also good sources of information. Contact with

police officers on patrol might yield information pertaining to late night/early morning activity the

supervisor might never have learned on their own. Religious activity, while potentially positive, is

the perfect situation in which to reoffend. The pastor should be contacted to confirm the offender

is not alone with children. Most of these considerations do not apply to other classes of criminals

under supervision. However, even with treatment, community notification, and supervision it is

said that as long the sex offender is on the street, there is very little that can be done to prevent

him of her from committing a new offense(Sampson 99). This disturbing realization has led to a

third preventative option.

Castration has been used throughout history to prevent undesirable procreation and to

punish criminals. In 1892, Switzerland became the first European country the castrate a sex

offender. Most other European countries followed suit except those such as Spain, Belgium,

France, and Portugal which are predominantly Catholic, because of that religion’s conflict with

the practice. Today, with the high recidivism rate of sex offenders on the forefront, many

countries have returned to castration laws as a means to punish habitual sex offenders and, more

importantly, to deter them from reoffending. Two types of castration are being utilized, surgical

and chemical. Surgical castration involves the removal of a man’s testosterone-producing

testicles to suppress his sex drive. This procedure reduces a man’s sex drive to a level similar to

that before puberty. Side effects include loss of facial and body hair, increased perspiration,

weight gain, and the softening of the skin. Positive side effects include a recidivism rate for

castrated offenders of only three percent, as opposed to a forty-six percent recidivism rate for sex

offenders who have not been castrated. Thousands of sex offenders who were surgically

castrated in Denmark, Germany, Sweden, Norway, Holland, and Czechoslovakia have only a 2.2

percent recidivism rate. Although it has proven to be effective, some countries are hesitant to

implement such a permanent procedure because of its harsh and irreversible nature. Chemical

castration, which is not permanent, is the latest measure implemented to fight the problem of

recidivism among sex offenders. It involves a weekly injection of hormone suppressers that

inhibit testosterone production. Depo-Provera is the newest of these inhibitors. However, due to

its experiment status the Michigan and Montana Supreme Courts have already held the use of the

drug unconstitutional as a condition of probation. Such legal action and other actions arguing

against chemical castration on constitutional grounds has some activist groups upset. The

Women’s Coalition in Pasadena stated, “I don’t care about the rights of serial child molesters. To

me, they’ve lost their rights once they rape, molest, and violate small children. This, by the way,

is not punishment. [Chemical castration] is a help for their problem. …It does not sterilize them.

It merely lowers their testosterone level.”(Carpenter 98)

Florida’s own chemical castration policy has come under fire. At the heart of the conflict

is the bodily integrity and the right to refuse medical treatment encompassed by Florida’s right to

privacy. The Florida castration law provides no room for the consent of the defendant and is in

many cases mandatory. It is the court-appointed medical officer who decides who are

inappropriate candidates, which may or may not include those withholding consent. Also, the law

lacks a provision providing counseling rendering the legislation ineffective in achieving the goal of

the state, protecting the public from repeat sex offenders(Keene 97).

The American judicial system is certainly not in an easy position when attempting to

reduce the recidivism rate of the particularly habitual sex offender criminal class. Because they

have rates drastically higher than any other violent criminal class they do deserve special attention

from the public and every institution that comes into contact with them. Yes, sex offenders are

protected by the Constitution, but by the Legislature enacting notification laws, they made it clear

when weighting any possible infringement upon rights enjoyed by convicted sex offenders that

precedence would go to the rights of potential victims over those of sex offenders in any area

where those rights might conflict(Martin 96). The findings regarding the effectiveness of

treatment were interesting. Treatment may be more effective for those who sexually offend

because of previous abuse, while chemical castration may be more effective for those who offend

more so out of sexual desire. Regardless, if the justice system is going to release a high risk

criminal like a sex offender, the immediate public has a right to know. A multi-tiered approach of

treatment, notification, and chemical castration seems to be the best approach to alleviating this

very serious problem.

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Carpenter, A. (1998). Belgium, Germany, England, Denmark, and the United States: The

Implamentation of Registration and Castration Laws as Protection Against Habitual

Sex Offenders. Dickinson Journal of International Law,16, pp. 435

Hanson, R. & Harris, A. (2000). Where Should We Intervene?: Dynamic Predictors of

Sexual Offense. Journal of Criminal Justice and Behavior, Vol. 27, Issue 1

Keene, B. (1997). Chemical Castration: An Analysis of Florida’s New “Cutting Edge”

Policy Towards Sex Criminals. Florida Law Review, 49, pp. 801

Looman, J., Abracen, J.& Nicholaichuk, T. (2000). Recidivism Among Treated Sexual

Offenders and Matched Controls: Data from the Regional Treatment Center (Ontario).

Journal of Interpersonal Violence, Vol. 15. pp. 279-290

Martin, R. (1996). Pursuing Public Protection Through Mandatory Community Notification

of Convicted Sex Offenders: The Trials and Tribulations of Megan’s Law. The Boston

Public Interest Law Journal, Vol. 6, Issue 29

Oakes, S. (1999). Megan’s Law: Analysis on Whether it is Constitutional to Notify the Public

of Sex Offenders Via the Internet. The John Marshal Journal of Computer and

Information Law

Sampson, E. (1999). Supervising Sex Offenders: Alternatives to Incarceration, Bethpage,

Vol. 5, pp.6-7

Schopf, S. (1995). “Megan’s Law”: Community Notification and the Constitution. Columbia

Universtiy School Journal of Law and Social Problems, 29

Seto, M. & Barbaree, H. (1999). Psychopathy, Treatment Behavior, and Sex Offender

Recidivism. Journal of Interpersonal Violence, Vol. 14, pp.1235-1248