Sex Predator Laws


McHarry


The child-sex witch hunts
of the 1980s, with their sensational allegations of human and animal sacrifice,
satanic rituals, and international sex rings, have faded from public
consciousness. The circus-like prosecutions such as California’s McMartin
preschool and Massachusetts’ Fells Acres day care center have been discredited,
but they have left an odious legacy: sweeping new laws that cut deeply into what
had been bedrock civil liberties.

The most
draconian of these is the sexually violent predator laws. Conduct which 40 years
ago might have earned a slap on the wrist now brings a life sentence in a
maximum-security mental institution. But to far graver effect, the laws and the
courts’ opinions supporting them give states a new legal mechanism to lock up
many more people than just predators.

In effect in at
least 16 states and under consideration in 21 more, the sexually violent
predator laws conflate physical violence with consensual sex with teenagers,
casting a wider net than its name implies. In addition to those who commit an
overtly violent act such as rape, they include merely the intention for sex
between a gay-identified 17-year-old and an older partner. Despite the media
characterization of predators as monsters, many of the cases
prosecuted—including the landmark decision upholding the predator laws,
Kansas v. Hendricks
—involve non-violent sex with teenagers.

 

An End Run
Around Criminal Law


The predator laws are
written as civil law. As such, they make an end run around safeguards against
state power long part of criminal law. What’s lost? The right to remain silent,
to have a lawyer at interrogations, to bail, to a trial by a jury, a standard of
proof of guilt beyond a reasonable doubt, the right to an appeal, among others.
Fundamental constitutional protections are weakened or absent, notably double
jeopardy (repeated punishment for the same crime, as well as the state’s
appealing an acquittal) and ex post facto (prohibiting a punitive measure
created after a crime had been committed). All of these protections apply to
criminal law only. Even one of the most elemental protections against arbitrary
state authority, the Due Process Clause, which does apply to civil law, has been
weakened.


Once committed,
predators do not have the multiple layers of review other civilly committed
patients do. This added review has been part of the courts’ reasoning in why
civil commitments—whose central purpose was not incapacitation, but
self-protection and care—do not require the reasonable doubt standard of
criminal law.

Despite rhetoric
from state legislators and prosecutors that such laws target a very small group
of highly dangerous people such as serial rapists, they are broadly written. The
predator laws declare those who have been convicted—in some states merely
accused—of a vague array of non-violent sexual behavior represent a danger and
may be held for life in a high-security mental health facility. Predator
offenses include “any criminal act [found] to have been sexually motivated”
(most states), “sexual misconduct” (Iowa), “individuals who, without committing
an actual crime, do something sexual in nature to frighten someone else”
(Missouri), and an adult touching their genitals in the presence of a child
(California). Incest is often excluded. Most of the laws subject young people to
predator status if they have sex with other minors. Some states can begin
predator proceedings against any citizen, but most target prisoners convicted of
a predator crime who have not finished their sentence or are on parole. Anyone
believed to be a potential sex predator may be evaluated by a social worker or
mental health employee—some states have no requirement that the evaluator be
licensed—as a first step in the commitment process. All the state representative
and a judge (or jury for states that use them) need do is find the accused has a
personality disorder that makes them “likely,” “substantially probable” or even
“more likely than not” to engage in an illicit act.

For the
overwhelming majority, the result is a life sentence. Though laws permit a
review every one or two years, it is up to the predator to prove he or she is no
longer dangerous. The Chicago Tribune looked at release rates and
found few had won back their freedom. Despite having served their criminal
sentences, no community wants someone the state has labeled a violent predator.

Kansas, whose law
was passed more than six years ago, last year “released” one predator into a
correctional facility. Illinois, whose law took effect about the same time, has
let out no one.

Washington, with
the nation’s first program, has released six people in a decade. All were at the
request of the prosecuting attorney with the consent of a judge. Although there
was intense media coverage and public concern for each, there was no hysteria.

 

Mental Health
Commitments


 


The groundbreaking legal
provision of the predator laws is the accused need not be diagnosed as mentally
ill. All the state need do is find that the person has an undefined mental
abnormality or personality disorder which makes them likely to have illicit sex
again. A “mental abnormality” or “personality disorder” is not a psychiatrically
defined mental illness. It is anything a psychologist or state legislature says
it is. Up to now, states have been able to commit people against their will only
in the narrow situation where someone had a mental illness and was a danger to
themselves or others.

    Nine years
ago the Supreme Court held states could not involuntarily commit to a mental
institution someone considered dangerous unless they also were mentally ill. Any
lower threshold for commitment—such as a personality disorder—would permit the
state to lock up practically anyone. Terry Foucha had been sent to a Louisiana
mental institution after being found not guilty by reason of insanity. A
hospital review committee recommended he be discharged as not mentally ill, but
a state court ordered him returned to the institution. The court said Foucha was
dangerous on the basis of a doctor’s testimony he had an antisocial personality.

As Justice White
wrote for the Supreme Court, most of those in jail have a personality disorder,
and every prisoner, by virtue of having committed a crime, could be seen as
dangerous. This rationale would permit the State to hold indefinitely any other
insanity acquittee not mentally ill who could be shown to have a personality
disorder that may lead to criminal conduct. The same would be true of any
convicted criminal, even though he or she has completed his or her prison term.
It would also be only a step away from substituting confinements for
dangerousness for our present system, which, with only narrow exceptions and
aside from permissible confinements for mental illness, incarcerates only those
who are proved beyond reasonable doubt to have violated a criminal law. But five
years after Foucha, the Court took this step toward confinement for
dangerousness in Kansas v. Hendricks. The Justice who wrote the dissent
in Foucha, Clarence Thomas, authored the majority opinion in Hendricks.
In the 5-4 decision, the Court set two new standards by which to interpret sex
offender commitment statutes. In so doing, it turned the existing system of
civil confinements inside out.


First, the Court
held that “mental abnormality” as used in the Kansas law was sufficient to
satisfy due process. Hendricks’ lawyers had argued that “mental abnormality” was
not equivalent to “mental illness,” and thus did not meet the constitutional
threshold under Foucha. The Court disagreed, stating “we have never
required State legislatures to adopt any particular nomenclature in drafting
civil commitment statutes. Rather, we have traditionally left to legislatures
the task of defining terms of a medical nature that have legal significance.”

Second, the Court
held that the Kansas statute did not give rise to criminal proceedings, and thus
confinement pursuant to the Act did not constitute punishment. This
determination allowed the Court to dispose of Hendricks’ ex post facto
and double jeopardy claims. The commentary in legal and psychiatric journals
afterwards ranged from unease to dismay. Many constitutional scholars are
appalled the Court erased what had been a clear distinction between criminal and
civil law when depriving citizens of liberty. They see states seeking, as Eric
Janus says, “the shelter of psychiatric diagnosis and civil commitment to avoid
condemnation as preventive detention” when they want to lock up people whom they
could not under criminal law. Psychiatrists believe the Court’s opinion ruptured
the status quo in which a diagnosed mental illness—as listed in the American
Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders,
DSM-IV— was a requirement for civil commitment.

 

Not Just for
Predators     


The chilling possibility
is a similar label may await more than those who have committed violent acts or
have had consensual sex with teenagers. Because the predator laws apply only to
a personality disorder and because they lack the safeguards of criminal law,
they give state legislatures the ability to extend indefinite confinement to any
other behavior lawmakers consider deviant or delinquent.     

“The term ‘mental
abnormality’ could be used to reach all kinds of behavior that may have no
relation to mental illness,” says Michael Allen of the Bazelon Center for Mental
Health Law. “This law would permit commitment of someone who was just
maladjusted.” Forensic psychologists in state mental-health departments might be
happy to have expanded commitment powers, but not mainstream psychiatric
organizations, which see as unethical incarceration of the non mentally ill in a
psychiatric facility.

“It’s a misuse of
psychiatry,” says Howard V. Zonana, MD, chair of the American Psychiatric
Association’s task force on sexually dangerous offenders. “Once they get in,
it’s very hard to get out. These statutes are clearly changing the predicate of
civil commitment, but only at the moment for sex offenders. But one could take
hit men who have an antisocial personality disorder and say these people, too,
are a public menace and how could you let them back out on the street?”
“Predator” has been a term applied to hit men since at least the days of FBI
director J. Edgar Hoover. But today the government is branding others as
predators, including young people. A U.S. House of Representatives bill titled
the “Violent Youth Predator Act” would eliminate the existing federal mandate
for states to release from jails so-called status offenders. These are juveniles
guilty of “crimes” such as truancy or incorrigibility, which apply only because
they are not yet adults. It is not much of a leap to imagine certain types of
incorrigible youth could be deemed maladjusted and potentially dangerous.

Although the
Kansas statute uses both “personality disorder” and “mental abnormality” for
individuals subject to confinement, it does not define personality disorder and
psychologists are divided as to what merits a personality disorder diagnosis.

The result,
writes Katie Isaac in the Houston Law Review, is future court decisions
will likely determine to whom else these terms will apply. The Supreme Court is
well aware of this, with some of the Justices asking during oral arguments in
Hendricks
whether a state could legitimately confine an armed robber
identified as having a “sociopathic personality.”

Moreover,
Hendricks
allows states to link any past criminal conduct to a related
“mental abnormality” or “personality disorder” in order to justify civil
commitment, observes Adam Falk in American Journal of Law & Medicine. A
state could link driving under the influence to alcohol-use disorders or,
similarly, drug crimes to cocaine, hallucinogen, or cannabis-related disorders.
“In this manner, a state could civilly commit all persons convicted of drug- or
alcohol-related crimes. Hendricks provides no limitations on the scope of
state power.”


Taking a step
further, Isaac observes it has been argued that the psychological factors that
lead to rape are similar to those that lead to other serious crimes not thought
to be caused by mental illness. Since the Kansas statute—as do the
others—applies to rape, and if rape is truly the result of the same factors
which lead to other non-sexually motivated crimes, “perhaps the Hendricks
decision takes a giant step toward allowing the civil commitment of any
violent offender who is deemed likely to commit future crimes.”

 

Reinventing
State Mental Institutions


The places where the
predators are locked up are state mental hospitals, institutions that have had a
dismal reputation, or in highly secure mental-health “treatment centers” under
the wing of the state’s prison system. Forty years ago, public pressure,
including documentaries such as Titicut Follies and the novel One Flew
Over the Cuckoo’s Nest,
exposed widespread abuses in the state mental-health
institutions and helped spur a movement to release many mentally ill people to
what were considered more humane community-based programs.

But now the
institutions are back, having reinvented themselves to take advantage of the
need to house predators. At a time of woefully inadequate mental health care for
many Americans, places like California’s Atascadero State Hospital are flush
with cash. Already one of the largest forensic mental institutions in the world,
Atascadero is building more cellblocks and hiring staff, from psychiatric
technicians to music therapists, to treat the predators. But it and the other
institutions’ hype about what they can do for their inmates—and treatment is a
key to the courts’ upholding the predator laws—has not matched their rhetoric.
Worse, it appears they are repeating the same sorry story of psychiatric
incompetence, patient abuse, cover-ups and resistance to outside intervention of
their predecessors a generation ago.

Like an old
southern prison, Washington’s new predator facility, the Special Commitment
Center, has come under the supervision of a court-appointed Special Master and
is facing heavy fines, a result of a long-running lawsuit in a U.S. District
Court. Tucked away in remote areas, difficult for families and newsmedia to
reach, the other facilities are newer and haven’t yet been subject to as much
court-ordered scrutiny, yet. Even so, what information there is—from newspaper
articles and state audits—paints disturbing trends. A common problem is woefully
untrained treatment staff, ill trained, often just with minimal education and no
certification in sex-offender treatment, who are unsure of whether they are
supposed to be guards or counselors. The treatment programs they are trying to
teach are continually changing. Many programs are not individually tailored but
employ a cookie-cutter approach for everyone from an older violent rapist to a
young adult man who had consensual sex with his underage girlfriend. There is a
high turnover of staff and management, and staff receives only confusing and
contradictory guidance from senior management. The management is not much
better. Many lack sex offender treatment credentials, others display
incompetence, some blatant racial prejudice and a few outright criminal conduct.
The director of Wisconsin’s program was fired in July 2000 after he was accused
of doctoring patient records, lying in court and faking his own credentials,
this after he got statewide publicity for advocating harsher rules for the
predators since they were manipulative and deceitful. According to a newsletter
published by the former court-appointed ombudsman of Washington’s Special
Commitment Center, a director at the Minnesota Security Hospital sexually
assaulted two staff members and a medical psychiatrist at Washington’s SCC was
disciplined by the state’s Medial Quality Assurance Commission, accused of
entering into an inappropriate relationship with a female patient who
subsequently attempted suicide.

Washington’s
program had a clinical director with little prior experience in sex offenses.
His predecessor, who is highly credentialed, had quit, calling the program
“dysfunctional” and blasting the facility’s superintendent for sabotaging his
work and withholding key information. The District Court uncovered repeated
instances of staff physically and verbally abusing the inmates—many of whom are
developmentally disabled—as well as supervisors falsifying patient records and
continued defiance of oversight. Judge William Dwyer found the SCC in contempt
and accused its management of having “fallen into a pattern of first denying
that anything is amiss at (the center), then engaging in a flurry of activity to
make improvements before the next court hearing, then admitting [at the hearing]
that shortfalls of constitutional magnitude still exist, then returning to
denial.”


California’s
Atascadero ranks near the bottom of state hospitals, with an accreditation
commission accusing the hospital of overmedicating inmates, keeping inadequate
records and inadequate staff credentials. Arizona’s inmates complain of no
visible measures of treatment progress, perhaps because the facility had no
clinical program director and recreation specialists were teaching treatment
programs. Florida’s facility saw a spectacular helicopter escape last year,
engineered by the younger lover of an inmate. A subsequent state audit
criticized the facility for allowing inmates to prostitute themselves for food;
sexual harassment among treatment staff, which the facility tried to cover up
without victim counseling; and record keeping so poor auditors could not tell if
the prisoners were making any progress in the treatment program.

No Standards
for Treatment


This latter finding,
common among many programs, should be little surprise, since there is no
accepted standard of treatment. Those in charge of the institutions acknowledge
the programs are experimental. Officials overseeing the Illinois mental health
department say they have no idea if their treatment program is successful. This
is echoed in the professional literature, with an exhaustive study by the
Canadian Correctional Service reporting, “a foregone response to the question
‘Does sex offender treatment work?’ is this: We are still uncertain.”

While those
treating sex offenders admit their methods are unproven, mental health groups
outside the forensic psychology community, notably the American Psychiatric
Association, condemn them as ineffective and unethical.

    For example,
most programs use a profile called RRASOR (Rapid Risk Assessment for Sexual
Offense Recidivism) to gauge whether a person should be labeled a predator, and
if they are, whether they will recidivate if set free. RRASOR and its successor
Static 99 were designed by a prison official, Karl Hanson. They employ a
meta-analytic technique to look at published reports on sex offender recidivism,
creating a sheen of statistical objectivity to complement what are generally
seen as subjective and inaccurate clinical judgments.

Such profiles are
a long way from accepted science. They are based on only a few recidivism
reports. Their risk-predictor variables, a majority of which target male
homosexuals, are derived from police reports that are inaccurate, often outdated
and not subject to impartial review. Hanson has not subjected RRASOR to
peer-reviewed scrutiny, merely posting it to a Canadian government website.
Leading psychiatrists condemn the profiles. Dr. Fred Berlin, founder of the
Johns Hopkins Sexual Disorder Clinic and associate professor of psychiatry at
Johns Hopkins Hospital, has said he is “very concerned” about using such tests
to deny someone their freedom: “You can use it and be 100 percent wrong…if
psychiatrists are making determinations in that manner, they are acting
improperly….” At least one court has banned Static 99 due to Berlin’s
testimony, the judges ridiculing the test.

    RRASOR may be
new but many of the institutions’ practices have not changed much since the
1960s. Among the protocols at Atascadero and other facilities: Crude
behavior-modification techniques designed to recondition inmates by describing
erotic scenes while flooding them with ammonia fumes.

Unapproved drugs
such as Lupron lower the predators desire for sex. Lupron is a new class of
pharmaceutical whose sole approved use is for endometriosis. Its debilitating
side effects have generated controversy in the short time it has been on the
market, including the establishment of a National Lupron Victims Network. It is
the drug of choice to use on predators because of a handful of reports in the
medical literature claiming it suppresses sex fantasies better than the safer
and more proven anti-androgens used by cancer patients and gender-variant
individuals. Use of a controversial device, the penile plethysmograph, to assess
deviant arousal. Even the corrections community notes its inaccuracy and
unreliability, the lack of an accepted methodology with which to gauge results
in an individual over time, and complaints it is readily circumvented.

Thought
Control

    Another
practice that has not changed but that has gotten more thorough is thought
control. Some institutions now instruct their psychiatric aides and other
custodians to monitor predators around the clock—including their off-the-cuff
remarks and choice of spare-time reading material—for any evidence they might
not fully believe what the treatment program is preaching.

By necessity the
systems for implementing predator laws are designed to detect and punish
beliefs. In the absence of objective methods, belief is the only way the state
has to determine whether a predator has changed and may be released.

Criminal prison
inmates may believe what they wish and to a certain extent act on it, e.g.,
protest their innocence and file court petitions in their defense. For someone
declared a predator, any attempt to assert their beliefs locks them in an
ideological battle with the state. No matter for those committed as child
molesters that there is a body of evidence—small and hotly contested—which
asserts sex between minors and adults is not necessarily harmful. Any attempt
for a predator to rationalize his or her conduct is to deny it, and denial is
considered non-compliance with treatment.

Instead,
predators must prove a negative, namely that there be no doubt they are no
longer dangerous. This is a tough standard to meet. To prove a negative one must
do so absolutely. Any doubt means they might commit another crime.         

Undermining Due Process


Historian Philip Jenkins
points to what had been a pattern every decade or two of relative indifference
toward adults having sex with children, followed by an egregious crime that
spurs a panic and ill-conceived legislation. Today, he says, this has solidified
into a seemingly permanent repression. In his book Moral Panic, he says
the child sex abuse movement is “all but indestructible,” and notes it has
continued to gain momentum despite setbacks such as the day-care and
repressed-memory debacles (the latter still alive in forensic psychology
textbooks, having been rechristened by its believers as “traumatic amnesia”).

The number of
people committed as predators, now in the several hundreds, is likely to rise to
tens of thousands within a few years given the steady inflow and “no exit”
policies of the states’ programs. Buttressed by laws requiring licensed
professionals and those holding specified jobs to report illicit sex, backed by
expanded social work/mental health/police resources and taking advantage of
missing criminal-law protections, there is no doubt more people will be
incarcerated indefinitely.

But of greater
concern is the line we cross when we lose fundamental constitutional pro-
tections. All of the rights eroded by Hendricks are important, but
perhaps none as much as due process. Part of the “great safeguards which the law
adopts in the punishment of crime and the upholding of justice,” it stretches
back centuries, from the Egyptians to the Aztecs, seen in every civilization
that pretends to rule of law. It means fundamental fairness, preventing the
State from using its awesome power arbitrarily. It is an essential moral
underpinning to our democracy, part of the compact that obligates the State to
safeguard the right to live freely.

The Supreme
Court’s Hendricks decision allows states to find an individual can
control his or her conduct for the purpose of criminal confinement, yet can not
control the exact same conduct for the purpose of civil commitment. This
switches off what were bright standards limiting when and how the government can
confine people. It gives the State a broad new opening under law to confine its
citizens. It remains to be seen if the line has been drawn at predators or if
the government will move to lock up others thought to be maladjusted and
dangerous. It is disturbing to know it has the power to do so.       Z

Mark McHarry is a consultant in the high-tech industry. He has written articles
and reviews for
Alternative Press Review, Bay Area Reporter, Gay
Community News, Journal of Homosexuality, PAN
and the
Roundel
, among others.