The hare and the tortoise: dangerousness and sex offender policy in the United States and Canada.
Publication: Canadian Journal of Criminology and Criminal Justice
Publication Date: 01-JAN-03 Format: Online - approximately 10437 words
Delivery: Immediate Online Access
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Article Excerpt
Introduction
In this article, building on a body of earlier work on dangerous offender legislation (Petrunik 1982; 1984; 1994a; 1994b; 2002), I compare recent American and Canadian approaches to the management of dangerous sex offenders. I place particular emphasis on the shifts in legislation and policy that emerged following several high profile cases in the two countries: the sexual assault and mutilation of a seven-year-old boy by Earl Shriner in Washington State in 1989, the abduction of Jacob Wetterling in Minnesota in 1990, the sexual assault and murder of Megan Kanka in New Jersey in 1994, and the sexual assault and murder of Christopher Stephenson in Ontario by Joseph Fredericks in 1988. In doing so, I contrast the swift, aggressive approach taken in the United States (the hare) with the generally slower, more cautious approach taken in Canada (the tortoise). I suggest some factors, relating to different circumstances in the two societies, that might aid in understanding why this has been the case.
A brief discussion of how sex offences and sex offenders are viewed, relative to other kinds of offences and offenders in contemporary Western societies, is useful at this point. Much more than property offences or even physical assaults, sex offences against persons are considered to be violations of the self that damage the very core of victims. Such damage can often involve a sense of moral pollution. Here, the Durkheimian distinction (Durkheim 1965) between the sacred and the profane is apropos. The more sacred, pure, or innocent the victim; the more profane or unclean the assault and the person committing it are considered to be. In Western societies, there is no victim more sacred than a child victim and no offender more profane than one who spoils the innocence of children. This sense of the sacred and profane is recognized even in prison society, where child sex offenders are pariahs (Lancashire 1976), unclean or inhuman beings deserving of all manner of verbal and physical assaults and humiliations. (2)
In addition to their perceived sacredness, another important feature of children is their perceived vulnerability. In modern Western societies, fear and anxiety about threats to children's physical and psychic well-being are pervasive. There is little correlation between the statistical risk of harm and the extent of fear of parents and the community at large. Indeed, the fear that one's children will be abducted and sexually assaulted is out of all proportion to the probability of the occurrence of this rare event (Best 1990), an indication that powerful, primal feelings are at work.
Those offenders who sexually assault and kill or maim their victims, while clearly uncommon, (3) are arguably among the most feared as well as loathed offenders in contemporary society (Lieb, Quinsey, and Berliner 1998: 52-53; The Violence Research Group 1996: 148-151). Such offenders exert an iconic influence on the public's opinion of sex offenders in general (Surette 1994). So great is the sense of vulnerability and violation attached to the sexual victimization of children and women that sex offenders in general, not just extremely violent ones, are considered to be highly dangerous.
In the following section, I define dangerousness, discuss its key elements, and examine three models relating to the perceived dangerousness of sex offenders that have been significant for social policy in the twentieth century and at the dawn of the twenty-first. I then go on to compare and explain differences between the way in which the most recent of these models (community protection) has developed in the United States and the way in which it has developed in Canada. (4)
Three models of dangerousness: Forensic-clinical, justice, and community protection
The notion of dangerousness has long been used in civil and criminal legislation to refer to the capacity of persons to harm themselves or others, physically, psychologically, or morally, and their likelihood of doing so (Ancel 1965: 15). It is useful to distinguish dangerousness from risk. The latter simply refers to the likelihood of a person's committing any future harmful act, while the former combines the perceived likelihood of a future harmful act's being committed with a perception of how serious that harm is considered to be. To give an example, a person considered to be at an 80% risk of shoplifting will be considered to be less dangerous than a person considered to be at a 20% risk of committing sexual assault.
While the above definition of dangerousness does not specify the kinds of harms that are involved and who specifically is at risk, it has several key elements that are important to consider when applied to sex offenders. First, dangerousness refers not to specific harmful acts or omissions, or to the circumstances in which they occur, but rather to an abnormal state of being (paraphilia, personality disorder, or mental abnormality) of perpetrators that predisposes them to do harm. Second, the concept of dangerousness is more oriented to possible future actions than to past events. In assessing dangerousness, the past of an individual is of interest primarily for the purpose of predicting and controlling his future behaviour. Third, alleged dangerousness leads to a focus on incapacitation as opposed to on punishment proportional to the gravity of offences committed. Thus, someone who commits a series of non-violent sex offences against children due to an alleged personality disorder or paraphilia might be viewed as more dangerous than someone who commits a single, non-sexually motivated, murder. The murderer will receive a lengthy sentence to punish him for the seriousness of his crime, even if he is viewed as unlikely to re-offend. The sex offender, in contrast, will be subjected to a variety of controls (in addition to a prison sentence) not just to punish him because of the gravity of his offences, but also to incapacitate him because he is thought to have a propensity that compels him to recidivate. Fourth, the notion of dangerousness tends to be applied selectively, primarily in the case of males who offend sexually or violently against women and children outside a domestic context. Generally, such offenders tend to be repeat offenders, who either are not related to their victims or have cultivated relationships with them specifically for the purpose of victimization. This serial pattern of offending is the basis for the designation, both in popular discourse and in legislation, of the repeat sex offender as a predator (Petrunik 1982; 1994a; 1994b).
In the last decade of the twentieth century there was a wave of support for a community protection model for dealing with predatory sex offenders across the United States and, to a lesser extent, Canada, the United Kingdom, Australia, New Zealand, and parts of continental Europe (Jenkins 2001). At a micro-level, this demand for special community protection measures is a response to law enforcement officials' and victims' advocates' claims that the forensic-clinical and justice models of social control failed to protect the community from the enduring risk posed by sex offenders. At a macro-level, the community protection movement is part of a shift in governance from welfarist approaches to remedying individual and socio-economic deficits to neo-liberal, state-community partnerships for managing all manner of perceived risks and associated fears (Brown and Pratt 2000).
The forensic-clinical model of dangerousness emerged in the late nineteenth and early twentieth centuries (Foucault 1977; Petrunik 1982; 1984) as a challenge to classical liberal criminology. The emphasis of the classical approach was on holding rational offenders accountable for their offences through a system emphasizing due process of law and penalties proportionate to the seriousness of offences. In contrast, proponents of a forensic-clinical approach gave little attention to due process concerns, often considering such concerns as an impediment to effective treatment. They advocated the confinement for an indeterminate time of persons who could not be deterred by fixed penalties because of mental or personality disorders that predisposed them to crime (Petrunik 1982; 1984). Confinement had to be indeterminate, because it could not be specified in advance how long it would take for the offender's disorder to improve and the danger s/he posed to be reduced sufficiently to permit release.
The tasks of forensic clinicians have always been the same: to diagnose psychopathology, to provide expert opinion on fitness and criminal responsibility, to assess risk of future harmful conduct, and to provide appropriate treatment. In carrying out their work, forensic clinicians have operated in terms of a model in which the privacy of the patient's clinical records must be protected even when those records contain information about serious acts of violence (Petrunik and Weisman 2002). Although the element of risk assessment has recently been given increased priority, the clinical model continues to emphasize the concept that most sex offending is driven by disorder. It is believed that most types of disorder (with the possible exception of severe cognitive disorder and some forms of severe personality disorder, such as psychopathy), if not curable, can at least be managed through a combination of psychotherapy, cognitive behavioural therapy, and pharmacological intervention. (5)
The justice model emphasizes the principles of due process, proportionality, and equity. It emerged in the 1970s based on a combination of factors. First, there was a renaissance of classical principles stressing a determinate sentence proportionate to the seriousness of the offence. Second, there was a rights revolution in criminal and mental health law that extended due process rights to mentally ill persons and to offenders alleged to be mentally disordered, with the result that involuntary civil commitment, particularly for lengthy periods, became more difficult to obtain and to sustain. Third, there were social science challenges of the ability of forensic clinicians to diagnose disorders and assess risk accurately and to carry out effective treatment (Petrunik 1982; 1994a; 1994b).
The community protection model emerged in response to the concern that the forensic-clinical and justice models gave insufficient attention to public safety and victims' rights. For proponents of community protection, treatment of mental disorder, and offender rehabilitation, respect for the liberty, privacy, and security of the person rights of suspects, offenders, and the mentally ill, and the principles of due process, proportionality, and equity all had to take a back seat to public safety issues.
The community protection model developed in concert with the rise during the late 1980s and early 1990s of various populist social movements calling for increased government attention to the rights of victims and their families and to citizens' fears about crime and for increased community participation in crime control (Petrunik 1994a, 1994b; Scottish Executive 2001). In contrast with the justice model of social control, which emphasizes avoiding false positives (6) in risk assessments (Petrunik 2002: 488-492), the community protection approach prioritizes public safety over the liberty, privacy, and security of the person rights of mental patients, accused persons, and offenders. Community protection advocates call for drastic means to avoid false negatives, particularly in those spectacular cases (sex murders of children) that arouse widespread public rage and fear. In contrast with the forensic-clinical model (where there is also a concern about false negatives), the community protection model is unconcerned about treatment and other rehabilitation programs intended to prevent offenders from re-offending and to help them integrate into the community (Petrunik 2002: 486-488, 492-495). Interestingly, forensic-clinical approaches have been strongly influenced by the policy shift to community protection, with the result that clinicians now seem to be devoting as much, if not more, attention to issues of risk assessment and risk management than to treatment. The difference between clinicians and the proponents of a community protection model is that the latter tend to magnify considerations of risk, arguing for extreme caution in the loosening of controls, (7) even when the results of actuarial and clinical assessments overwhelmingly indicate that risk of re-offense is minimal.
Community protection approaches in the United States
The key initial event in the development of the community protection approach in the United States took place in WashingtonState in 1989. The residents of Washington were horrified when a seven-year-old boy was abducted, sexually assaulted, and mutilated by Earl Shriner, a repeat child sex offender and alleged murderer, who had been involuntarily committed as a defective delinquent during his adolescence. As an adult, Shriner came under the ambit of the criminal justice system, where he fully served a fixed sentence for sexual assault. He failed to qualify for involuntary commitment under civil mental health legislation on his release, despite the discovery of plans he had made to torture and rape children. Not long after his release Shriner carried out the brutal assault that galvanized the people of Washington (Boerner 1992; Lafond 1992).
In response to intensive media coverage and to public outcry, Washington's governor immediately set up a community task force to develop special controls for dangerous sex offenders. The focus was not on intra-familial child abusers (the most common type of sex offender, with the lowest recidivism rates) but rather on predatory, extra-familial offenders. Such offenders, although few in number, struck fear into the heart of the community because of the random, compulsive nature of their offences, their multiple victims, their high recidivism rates, and occasionally, their shocking acts of violence. The Shriner case was of particular concern because he was representative of sex offenders who, following sentencing reforms in the early 1980s, had fully served fixed prison sentences for their crimes and had to be released. Complicating matters further, reforms of mental health law according to a justice model placed restrictions on the use and duration of involuntary civil commitment. This made it virtually impossible to confine, for an indeterminate period of time, individuals who were considered to have serious personality disorders and paraphilias but were not acutely psychotic and did not meet the standard of imminent danger (based on recent evidence of overt violent acts) to self or others (Boerner 1992: 542-544; Lafond 1992; Jenkins 1998: 191).
The task force, with strong representation from victims' advocates (including the mother of Shriner's victim), reported within six months. Only four months later a sweeping package of reforms, the Community Protection Act, was passed by Washington's legislature. Among the measures introduced were the following: a post-sentence civil commitment procedure for persons found to meet the criteria for a sexually violent predator (the SVP statute); a sex offender registry (SOR); and a tiered approach to notification of criminal justice officials, community groups, and individual members of the community, based on three levels of perceived offender risk: high, moderate, and low (State of Washington 1989; Boerner 1992). In the case of individuals judged to be low risk, only the police were required to be informed. In the case of those judged to be at moderate risk, relevant community organizations such as schools and parks and recreation organizations were also informed. Most contentious was the category of high-risk offender, which required that members of the public living in the immediate vicinity of any person so designated be provided with his name, address, and other pertinent information.
In 1994 the community protection movement gained impetus when several other states (including Kansas, Wisconsin, and Minnesota) followed Washington's lead and introduced their own sexually violent predator commitment statutes. Indiana passed Zachary's Law (named after a child homicide victim named Zachary Snider), creating the first online SOR (Jenkins 1998: 200). New Jersey passed a comprehensive set of provisions called Megan's Law, only 89 days after the abduction and sexual homicide of seven-year-old Megan Kanka (Kanka 2000a; 2000b; Laurence 1997; Wright 1995).
That same year the U.S. federal government enacted legislation to put pressure on states to set up their own sex offender registries. President Bill Clinton, realizing that the control of child sex offenders was an issue with almost universal public support, was instrumental in passage of the Jacob Wetterling Act (JWA), named after a boy abducted in Minnesota in 1990 and never seen since. This legislation required all states to set up SORs or else face a 10% cut in criminal justice handing (Lewis 1996; Coflin 1997: 4; Logan 1999: 1173). Enactment of the JWA was followed by the enactment of two related federal statutes in 1996. The federal Megan's Law required all states to carry out community notification according to federal standards or else face similar funding cuts. The Pam Lychner Act set up NSOR, a national sex offender registry and tracking system run by the FBI, and required life-time registration for all offenders who had engaged in coercive penetrative sex or had had victims under the age of 12 (Lieb et al. 1998: 73; Logan 2000: 600). In 1998 the Commerce, Justice and State, the Judiciary, and Related Agencies Appropriation Act was passed. This legislation mandated states to identify which sex offenders might be considered sexually violent predators and required that such offenders be subject to state and federal registration and notification requirements for life (Petrunik 2002: 494).