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
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.
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.
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).
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
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
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
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
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
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.
That the vast majority of sex offenses are committed by predators and that,
indeed, most sex offenders are predators with extremely high rates of
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
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.
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.
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.
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.
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.
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.
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
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.
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.
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
That broad public notification of sex offenders' names, addresses and place
of employment will help people protect their child and reduce offending
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
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
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
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
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
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.
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.
authors of this piece do not subscribe to those views, and do not seek such
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
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.
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
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.
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."
would have been considerably less likely to accept her denial of responsibility
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
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.
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.
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.
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.
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.
(1) Forensic psychologist, practiced for 10 years in New Jersey.
(2) Currently inmates of the Adult Diagnostic and Treatment Center.
(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.
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.
(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
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]
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