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Sex offenders have been a serious problem for our legal system at all levels, not to mention those who have been their victims. There are 43,000 inmates in prison for sexual offenses while each year in this country over 510,000 children are sexually assaulted (Oakes 99). The latter statistic, in its context, does not convey the severity of the situation. Each year 510,000 children have their childhoods destroyed, possibly on more than one occasion, and are faced with dealing with the assault for the rest of their lives. Sadly, many of those assaults are perpetrated by people who have already been through the correctional system, only to victimize again. Sex offenders, as a class of criminals, are nine times more likely to repeat their crimes (Oakes 99).
This presents a problem for the public, as potential victims, and the legal system, which is entrusted by the public for protection. It would be irresponsible for the legal system to ignore the criminal class of sex offenders, for they are subject to a recurring physiological urge that requires the use of effective restraints that would curb the habitual repetition of episodes producing the harmful consequences to the public (Schopf 95). In light of this realization, steps beyond treatment have been taken to reduce the recidivism rate of sex offenders. Notification laws, special supervising techniques by parole officers, and both surgical and chemical castration are techniques used in various forms in this country and abroad with success. However, notification laws and both forms of castrations have not come about without criticism on constitutional grounds. Any criticism should take into account the extraordinary recidivism rates found only in the criminal class of the sex offender. A study found in the Journal of Interpersonal Violence by Michael C. Seto and Howard E. Barbaree looked at 224 sex offenders. Of those men, 33 committed a new offense of some kind for a general recidivism rate of 14.7 percent (Journal). Even more interesting was the study did not support the idea that good treatment behavior, as in positive or appropriate behavior in group sessions, good homework assignments, and positive ratings of motivation, could be associated with less of a chance for recidivism.
Soto and Barbaree gave two possible reasons for this finding. First, sex offenders, by the very nature of their criminal behavior, are masters of manipulation and exploitation. These individuals can exhibit behavior that contributes to favorable assessments. The second possible reason is these skills are learned, or enhanced, in the treatment setting. Data from a program evaluation by Quinsey in 1998 is consistent with this interpretation. They hypothesized that it was due to exposure to sexually-deviant material or by learning about other's actions. A more recent study, published in the same journal, by Looman in 2000 suggests the opposite (Florida). Of the released sex offenders they studied, they found a 23.6 percent recidivism rate for those treated while a 51.7 percent rate for the untreated group. They also conducted an analysis separately on the outcome for men who had previous sexual convictions. Those with no previous sexual offense convictions had a 20.9 percent recidivism rate of the treated men compared to 42.9 percent of the untreated men. Of the men with previous sexual offenses, 26.1 percent of the treated group sexually "reoffended," compared to 73.1 percent of the untreated men. According to this study, treatment is invaluable in minimizing the recidivism of sex offenders with previous offenses (Florida).
With such conflicting reports on the effectiveness of treatment, it is easy to see why our legal system has taken other steps to keep sex offenders from continually victimizing. Registration of sex offenders began in 1994 with the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (Recidivism). It encouraged states, by threatening to hold back ten percent of their crime-fighting funding, to establish systems where anyone who commits a sexual or kidnapping offense against a child is required to register his or her address with the state upon release. The original version gave law enforcement agencies the choice when to release an offender's information if they thought it necessary for the public's protection. Unfortunately, some law enforcement agencies did not do so (Oakes 99).
On July 29, 1994, the ineffectiveness of the current notification law became painfully apparent. Megan Kanka, unbeknownst to her or her family, lived across the street from three convicted sex offenders. On that day Jesse Timmendequas, a twice-convicted sex offender, lured Megan into his house by promising to show her a new puppy. He then raped and murdered her. Other than the three men, no one in the residential neighborhood of Trenton, New Jersey was aware of their criminal backgrounds (Oakes 99). Timmendequas had been released despite his and his therapist's doubts that he could adjust to life outside of prison. On top of this, he had been granted early release for "good time," even though he failed to participate regularly in prescribed therapy.
"Had I known that there were three pedophiles living across the street from my home, I never would have allowed Megan to walk out of the door of my house alone. I guarantee she would be alive today," stated Maureen Kanka (Martin 96). In response to this preventable atrocity, New Jersey enacted Megan's Law. On May 17, 1996 President Clinton, on recommendation from The Department of Justice, amended the 1994 Wetterling Act with Megan's Law requiring agencies to release information in all cases necessary to protect the public and allowing any registry information to be disclosed for any purpose permitted under state law (Martin 96). Today, all 50 states require convicted sex offenders to register with states agencies of law enforcement. As of February 1998, there were nearly 240,000 offenders registered in the United States (Oakes 99).
Even still, not all registry information is disseminated to the public. Some states numerically rank offenders using tier levels according to factors used to determine the offender's risk of re-offense (Pursuing). The higher the tier classification, the more information about the offender is released to the public. Classification is done by either prosecutors, boards, or clinics. Every offender is at least assigned to the low risk Tier 1, where only the law enforcement agency is notified. A Tier 2 ranking, considered moderate risk, requires that notification be made to agencies, schools, and community organizations. A Tier 3 ranking is considered high risk and community notification is required. In addition, some states require that the sex offender be given notice to the classification. This allows for a review process if the offender wants to challenge the classification (Oakes 99). Such a system is likely an effort to head off constitutional challenges, of which there have been many. Sex offenders have raised challenges to notification laws based on the Bill of Attainder, Cruel and Unusual Punishment, Double Jeopardy, Due Process, Equal Protection, and Ex Post Facto clauses in the United States Constitution (Megan's Law). In the Michigan case Doe v. Kelley '97 the court held that because notification does not constitute a punitive purpose, the Bill of Attainder Clause was not violated. A New Jersey court in Paul v. Verniero '97 held that notification does not constitute punishment and does not violate the Cruel and Unusual Punishment clause (Boston Public). In 1997, the Double Jeopardy and Ex Post Facto Clause arguments were defeated in Kansas v. Hendricks when the court held that notification did not amount to a second trial. In Femedeer v. Haun '99, the Utah court set up a two-step analysis that an offender must meet before demonstrating a violation of the Due Process clause. The first step is to determine if the state interfered with a liberty interest. If an interest exists, then it must be determined if the procedures for the deprived interest are constitutionally sufficient. Several federal courts have found these challenges false (Oakes 99).
Simply notifying the public does not remove the responsibility of the legal system from keeping sex offenders from committing another offense. If the correctional system releases a convicted offender and places him or her on parole, they must be supervised. A study found in the Journal of Criminal Justice and Behavior, by R. Hanson and Andrew Harris, found that possible behavioral indicators predicting the recidivism of a sex offender. They found recidivists generally have poor supports, attitudes tolerant of sexual assault, antisocial lifestyles, poor self-management strategies, and difficulties cooperating with supervision. Most importantly, recidivists showed increased anger and distress just before reoffending (Journal). That being said, supervision is incredibly important in preventing further victimization. The Florida Department of Corrections has outlined six special considerations for the supervisors of sex offenders. Contacts in the field should be irregular and unpredictable, and weekend visits are a necessity. "Walk-throughs" are important during home visits. Items, like toys and stuffed animals, teen magazines, cameras, children's clothing, video games, or any suspicious materials, should raise a red flag. Making occasional contact with family, friends, and the offender's counselor may yield useful information. Employers should be contacted and have an understanding for what the offender is on probation for. Employers are also good sources of information. Contact with police officers on patrol might yield information pertaining to late night/early morning activity the supervisor might never have learned on his own. Religious activity, while potentially positive, is the perfect situation in which to reoffend. The pastor should be contacted to confirm the offender is not alone with children. Most of these considerations do not apply to other classes of criminals under supervision. (Supervision)
However, even with treatment, community notification, and supervision it is said that as long the sex offender is on the street, there is very little that can be done to prevent him of her from committing a new offense (Sampson 99). This disturbing realization has led to a third preventative option. Castration has been used throughout history to prevent undesirable procreation and to punish criminals. In 1892, Switzerland became the first European country the castrate a sex offender. Most other European countries followed suit except those such as Spain, Belgium, France, and Portugal, which are predominantly Catholic. That religion's conflict with the practice is what halted them (Bibliography Carpenter). Today, with the high recidivism rate of sex offenders on the forefront, many countries have returned to castration laws as a means to punish habitual sex offenders and, more importantly, to deter them from reoffending. Two types of castration are being utilized, surgical and chemical. Surgical castration involves the removal of a man's testosterone-producing testicles to suppress his sex drive. This procedure reduces a man's sex drive to a level similar to that before puberty. Side effects include loss of facial and body hair, increased perspiration, weight gain, and the softening of the skin. Positive side effects include a recidivism rate for castrated offenders of only three percent, as opposed to a forty-six percent recidivism rate for sex offenders who have not been castrated. Thousands of sex offenders who were surgically castrated in Denmark, Germany, Sweden, Norway, Holland, and Czechoslovakia have only a 2.2 percent recidivism rate (Bibliography Carpenter). Although it has proven to be effective, some countries are hesitant to implement such a permanent procedure because of its harsh and irreversible nature.
Chemical castration, which is not permanent, is the latest measure implemented to fight the problem of recidivism among sex offenders. It involves a weekly injection of hormone suppressers that inhibit testosterone production. Depo-Provera is the newest of these inhibitors. However, due to its experiment status the Michigan and Montana Supreme Courts have already held the use of the drug unconstitutional as a condition of probation (Dickens). Such legal situations and other actions arguing against chemical castration on constitutional grounds have some activist groups upset. The Women's Coalition in Pasadena stated,
"I don't care about the rights of serial child molesters. To me, they've lost their rights once they rape, molest, and violate small children. This, by the way, is not punishment. [Chemical castration] is a help for their problem. ...It does not sterilize them. It merely lowers their testosterone level."(Carpenter 98)
Florida's own chemical castration policy has come under fire. At the heart of the conflict are the bodily integrity and the right to refuse medical treatment encompassed by Florida's right to privacy. The Florida castration law provides no room for the consent of the defendant and is in many cases mandatory. It is the court-appointed medical officer who decides who are inappropriate candidates, which may or may not include those withholding consent. Also, the law lacks a provision providing counseling rendering the legislation ineffective in achieving the goal of the state, protecting the public from repeat sex offenders (Keene 97). The American judicial system is certainly not in an easy position when attempting to reduce the recidivism rate of the particularly habitual sex offender criminal class. Because they have rates drastically higher than any other violent criminal class, they do deserve special attention from the public and every institution that comes into contact with them.
Yes, sex offenders are protected by the Constitution, but by the Legislature enacting notification laws, The Legislature has made it clear when weighting any possible infringement upon rights enjoyed by convicted sex offenders that precedence would go to the rights of potential victims over those of sex offenders in any area where those rights might conflict (Martin 96). The findings regarding the effectiveness of treatment were interesting. Treatment may be more effective for those who sexually offend because of previous abuse, while chemical castration may be more effective for those who offend more so out of sexual desire. Regardless, if the justice system is going to release a high-risk criminal like a sex offender, the immediate public has a right to know. A multi-tiered approach of treatment, notification, and chemical castration seems to be the best approach to alleviating this very serious problem.