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Sex Predator Laws
A powerful new tool for state control
Mark McHarry, Z Magazine, November 2001
The child-sex witch hunts of the 1980s, with their sensational allegations of human and animal sacrifice, satanic rituals and international sex rings, have faded from public consciousness. The circus-like prosecutions such as California's McMartin preschool and Massachusetts' Fells Acres day care center have been discredited, but they have left an odious legacy: sweeping new laws that cut deeply into what had been bedrock civil liberties. [*1]
The most draconian of these is the sexually violent predator laws. Conduct which 40 years ago might have earned a slap on the wrist now brings a life sentence in a maximum-security mental institution. But to far graver effect, the laws and the courts' opinions supporting them give states a new legal mechanism to lock up many more people than just predators.
In effect in at least 16 states and under consideration in 21 more [*2], the sexually violent predator laws conflate physical violence with consensual sex with teenagers, casting a wider net than their name implies. In addition to those who commit an overtly violent act such as rape, they include merely the intention for sex between a gay-identified 17-year-old and an older partner. Despite the media characterization of predators as monsters, many of the cases prosecuted — including the landmark decision upholding the predator laws, Kansas v. Hendricks — involve non-violent sex with teenagers. [*3]
An End Run Around Criminal Law
The predator laws are written as civil law. As such, they make an end run around safeguards against state power long part of criminal law. What's lost? The right to remain silent, to have a lawyer at interrogations, to bail, to a trial by a jury, a standard of proof of guilt beyond a reasonable doubt, the right to an appeal, among others. Fundamental constitutional protections are weakened or absent, notably double jeopardy (repeated punishment for the same crime, as well as the state's appealing an acquittal) and ex post facto (prohibiting a punitive measure created after a crime had been committed). Even one of the most elemental protections against arbitrary state authority, the Due Process Clause, which does apply to civil law, has been weakened.
Once committed, predators do not have the multiple layers of review other civilly committed patients do [*4]. This added review has been part of the courts' reasoning in why civil commitments — whose central purpose was not incapacitation, but self-protection and care — do not require the reasonable doubt standard of criminal law.
Despite rhetoric from state legislators and prosecutors that such laws target a very small group of highly dangerous people such as serial rapists, they are broadly written. The predator laws declare those who have been convicted — in some states merely accused — of a vague array of non-violent sexual behavior represent a danger and may be held for life in a high-security mental health facility.
Predator offenses include "any criminal act [found] to have been sexually motivated" (most states), "sexual misconduct" (Iowa), "individuals who, without committing an actual crime, do something sexual in nature to frighten someone else" (Missouri) [*5], and an adult touching their genitals in the presence of a child (California). Incest is often excluded. Most of the laws subject young people to predator status if they have sex with other minors [*6].
Some states can begin predator proceedings against any citizen, but most target prisoners convicted of a predator crime who have not finished their sentence or are on parole. Anyone believed to be a potential sex predator may be evaluated by a social work or mental health employee — some states have no requirement the evaluator be licensed — as a first step in the commitment process. All the state representative and a judge (or jury for states that use them) need do is find the accused has a personality disorder that makes them "likely", "substantially probable" or even merely "more likely than not" to engage in an illicit act [*7]
For the overwhelming majority, the result is a life sentence. Though laws permit a review every one or two years, it is up to the predator to prove he or she is no longer dangerous. The Chicago Tribune looked at release rates and found few had won back their freedom. Despite having served their criminal sentences, no community wants someone the state has labeled a violent predator.
Washington, with the nation's first program, has released six people in a decade. All were at the request of the prosecuting attorney with the consent of a judge. Although there was intense media coverage and public concern for each, there was no hysteria. But the one attempt the SVP program made on its own to a release a predator became a political football. Prosecutors grilled state mental health experts to prove that the man would never harm anyone. In 1984 he had raped and severely beat two sisters, 14 and 16. His victims gave emotional testimony, the press editorialized against his release and a jury sent him back to Washington's Special Commitment Center [*10].
Mental Health Commitments
The groundbreaking legal provision of the predator laws is the accused need not be diagnosed as mentally ill. All the state need do is find that the person has an undefined mental abnormality or personality disorder which makes them likely to have illicit sex again. A "mental abnormality" or "personality disorder" is not a psychiatrically defined mental illness. It is merely anything a psychologist or state legislature says it is.
Up to now, states have been able to commit people against their will only in the narrow situation where someone had a mental illness and was a danger to themselves or others.
Only nine years ago the Supreme Court held states could not involuntarily commit to a mental institution someone considered dangerous unless they also were mentally ill. Any lower threshold for commitment — such as a personality disorder — would permit the state to lock up practically anyone.
Terry Foucha had been sent to a Louisiana mental institution after being found not guilty by reason of insanity. A hospital review committee recommended he be discharged as not mentally ill, but a state court ordered him returned to the institution. The court said Foucha was dangerous on the basis of a doctor's testimony he had an antisocial personality.
As Justice White wrote for the Supreme Court, most of those in jail have a personality disorder, and every prisoner, by virtue of having committed a crime, could be seen as dangerous:
But five years after Foucha, the Court took this step toward confinement for dangerousness in Kansas v. Hendricks. The Justice who wrote the dissent in Foucha, Clarence Thomas, authored the majority opinion in Hendricks. In the 5-4 decision, the Court set two new standards by which to interpret sex offender commitment statutes [*12]. In so doing, it turned the existing system of civil confinements inside out.
First, the Court held that "mental abnormality" as used in the Kansas law was sufficient to satisfy due process. Hendricks’ lawyers had argued that "mental abnormality" was not equivalent to "mental illness," and thus did not meet the constitutional threshold under Foucha. The Court disagreed, stating "we have never required State legislatures to adopt any particular nomenclature in drafting civil commitment statutes. Rather, we have traditionally left to legislatures the task of defining terms of a medical nature that have legal significance."
Second, the Court held that the Kansas statute did not give rise to criminal proceedings, and thus confinement pursuant to the Act did not constitute punishment. This determination allowed the Court to dispose of Hendricks’ ex post facto and double jeopardy claims.
The commentary in legal and psychiatric journals afterwards ranged from unease to dismay. Many constitutional scholars are appalled the Court erased what had been a clear distinction between criminal and civil law when depriving citizens of liberty. They see states seeking, as Eric Janus says, "the shelter of psychiatric diagnosis and civil commitment to avoid condemnation as preventive detention" [*13] when they want to lock up people whom they could not under criminal law. Psychiatrists believe the Court's opinion ruptured the status quo in which a diagnosed mental illness—as listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, DSM-IV—was a requirement for civil commitment.
Not Just for Predators
The chilling possibility is a similar label may await more than those who have committed violent acts or have had consensual sex with teenagers. Because the predator laws apply only to a personality disorder and because they lack the safeguards of criminal law, they give state legislatures the ability to extend indefinite confinement to any other behavior lawmakers consider deviant or delinquent.
"The term 'mental abnormality' could be used to reach all kinds of behavior that may have no relation to mental illness," says Michael Allen of the Bazelon Center for Mental Health Law. "This law would permit commitment of someone who was just maladjusted." [*14]
Forensic psychologists in state mental-health departments might be happy to have expanded commitment powers, but not mainstream psychiatric organizations, which see as unethical incarceration of the non mentally ill in a psychiatric facility.
"It's a misuse of psychiatry," says Howard V. Zonana, M.D., chair of the American Psychiatric Association’s task force on sexually dangerous offenders. "Once they get in, it's very hard to get out. These statutes are clearly changing the predicate of civil commitment, but only at the moment for sex offenders. But one could take hit men who have an antisocial personality disorder and say these people, too, are a public menace and how could you let them back out on the street?" [*15]
"Predator" has been a term applied to hit men since at least the days of FBI director J. Edgar Hoover. But today the government is branding others as predators, including young people themselves.
A U.S. House of Representatives bill titled the "Violent Youth Predator Act" would eliminate the existing federal mandate for states to release from jails so-called status offenders. These are juveniles guilty of "crimes" such as truancy or incorrigibility, which apply only because they are not yet adults [*16]. It is not much of a leap to imagine certain types of incorrigible youth could be deemed maladjusted and potentially dangerous.
Although the Kansas statute uses both "personality disorder" and "mental abnormality" for individuals subject to confinement, it does not define personality disorder and psychologists are divided as to what merits a personality disorder diagnosis.
The result, writes Katie Isaac in the Houston Law Review, is future court decisions will likely determine to whom else these terms will apply. The Supreme Court is well aware of this, with some of the Justices asking during oral arguments in Hendricks whether a state could legitimately confine an armed robber identified as having a "sociopathic personality." [*17]
Moreover, Hendricks allows states to link any past criminal conduct to a related "mental abnormality" or "personality disorder" in order to justify civil commitment, observes Adam Falk in American Journal of Law & Medicine. A state could link driving under the influence to alcohol-use disorders or, similarly, drug crimes to cocaine, hallucinogen, or cannabis-related disorders. "In this manner, a state could civilly commit all persons convicted of drug- or alcohol-related crimes. Hendricks provides no limitations on the scope of state power." [*18]
Taking a step further, Isaac observes it has been argued that the psychological factors that lead to rape are similar to those that lead to other serious crimes not thought to be caused by mental illness. Since the Kansas statute — as do the others — applies to rape, and if rape is truly the result of the same factors which lead to other non-sexually motivated crimes, "perhaps the Hendricks decision takes a giant step toward allowing the civil commitment of any violent offender who is deemed likely to commit future crimes." [*19]
Reinventing State Mental Institutions
The places where the predators are locked up are state mental hospitals, institutions that have had a dismal reputation, or in highly secure mental-health "treatment centers" under the wing of the state's prison system. Forty years ago, public pressure, including documentaries such as "Titicut Follies" and the novel One Flew Over the Cuckoo's Nest [*20], exposed widespread abuses in the state mental-health institutions and helped spur a movement to release many mentally ill people to what were considered more humane community-based programs.
But now the institutions are back, having reinvented themselves to take advantage of the need to house predators [*21]. At a time of woefully inadequate mental health care for many Americans [*22], places like California's Atascadero State Hospital are flush with cash. Already one of the largest forensic mental institutions in the world, Atascadero is building more cellblocks and hiring staff, from psychiatric technicians to music therapists, to treat the predators. But it and the other institutions' hype about what they can do for their inmates — and treatment is a key to the courts' upholding the predator laws [*23] — has not matched their rhetoric. Worse, it appears they are repeating the same sorry story of psychiatric incompetence, patient abuse, cover-ups and resistance to outside intervention of their predecessors a generation ago.
Like an old southern prison, Washington's new predator facility, the Special Commitment Center, has come under the supervision of a court-appointed Special Master and is facing heavy fines, a result of a long running lawsuit in a U.S. District Court. Tucked away in remote areas, difficult for families and newsmedia to reach, the other facilities are newer and haven't yet been subject to as much court-ordered scrutiny.
Even so, what information there is — from newspaper articles and state audits — paints disturbing trends. A common problem is woefully untrained treatment staff, often just with minimal education and no certification in sex-offender treatment, who are unsure of whether they supposed to be guards or counselors. The treatment programs they are trying to teach are continually changing. Many programs are not individually tailored but employ a cookie-cutter approach for everyone from an older violent rapist to a young adult man who had consensual sex with his underage girlfriend. There is a high turnover of staff and management, and staff receives only confusing and contradictory guidance from senior management.
And the management is not much better. Many lack sex offender treatment credentials, others display incompetence, some blatant racial prejudice [*24] and a few outright criminal conduct. The director of Wisconsin's program was fired in July 2000 after he was accused of doctoring patient records, lying in court and faking his own credentials, this after he got statewide publicity for advocating harsher rules for the predators since they were manipulative and deceitful [*25]. According to a newsletter published by the former court-appointed ombudsman of Washington's Special Commitment Center, a director at the Minnesota Security Hospital sexually assaulted two staff members [*26] and a medical psychiatrist at Washington's SCC was disciplined by the state's Medial Quality Assurance Commission, accused of entering into an inappropriate relationship with a female patient who subsequently attempted suicide [*27].
Washington's program had a clinical director with little prior experience in sex offenses. His predecessor, who is highly credentialed, had quit, calling the program "dysfunctional" and blasting the facility's superintendent for sabotaging his work and withholding key information [*28]. The District Court uncovered repeated instances of staff physically and verbally abusing the inmates — many of whom are developmentally disabled — as well as supervisors falsifying patient records [*29] and continued defiance of oversight. Judge William Dwyer found the SCC in contempt and accused its management of having "fallen into a pattern of first denying that anything is amiss at (the center), then engaging in a flurry of activity to make improvements before the next court hearing, then admitting [at the hearing] that shortfalls of constitutional magnitude still exist, then returning to denial." [*30]
Crude behavior-modification techniques designed to recondition inmates by describing erotic scenes while flooding them with ammonia fumes.
California's Atascadero ranks near the bottom of state hospitals, with an accreditation commission accusing the hospital of overmedicating inmates, keeping inadequate records and inadequate staff credentials [*31]. Arizona's inmates complain of no visible measures of treatment progress, perhaps because the facility had no clinical program director and recreation specialists were teaching treatment programs [*32]. Florida's facility saw a spectacular helicopter escape last year, engineered by the younger lover of an inmate [*33]. A subsequent state audit criticized the facility for allowing inmates to prostitute themselves for food; sexual harassment among treatment staff, which the facility tried to cover up without victim counseling; and record keeping so poor auditors could not tell if the prisoners were making any progress in the treatment program. [*34]
No Standards for Treatment
This latter finding, common among many programs, should be little surprise, since there is no accepted standard of treatment. Those in charge of the institutions acknowledge the programs are experimental. Officials overseeing the Illinois mental health department say they have no idea if their treatment program is successful [*35]. This is echoed in the professional literature, with an exhaustive study by the Canadian Correctional Service reporting, "a foregone response to the question 'Does sex offender treatment work?' is this: We are still uncertain." [*36]
While those treating sex offenders admit their methods are unproven, mental health groups outside the forensic psychology community, notably the American Psychiatric Association, condemn them as ineffective and unethical.
For example, most programs use a profile called RRASOR (Rapid Risk Assessment for Sexual Offense Recidivism) to gauge whether a person should be labeled a predator, and if they are, whether they will recidivate if set free [*37]. RRASOR and its successor Static-99 were designed by a prison official, Karl Hanson. They employ a meta-analytic technique to look at published reports on sex offender recidivism, creating a sheen of statistical objectivity to complement what are generally seen as subjective and inaccurate clinical judgments.
Such profiles such are long way from accepted science. They are based on only a few recidivism reports. Their risk-predictor variables, a majority of which target male homosexuals [*38], are derived from police reports which are inaccurate, often outdated and not subject to impartial review. Hanson has not subjected RRASOR to peer-reviewed scrutiny, merely posting it to a Canadian government Website. [*39]
Leading psychiatrists condemn the profiles. Dr. Fred Berlin, founder of the Johns Hopkins Sexual Disorder Clinic and associate professor of psychiatry at Johns Hopkins Hospital, has said he is "very concerned" about using such tests to deny someone their freedom: "You can use it and be 100 percent wrong.... if psychiatrists are making determinations in that manner, they are acting improperly...." [*40] At least one court has banned Static-99 due to Berlin's testimony, the judges ridiculing the test. [*41]
RRASOR may be new but many of the institutions' practices have not changed much since the 1960s. Among the protocols at Atascadero and other facilities:
Another practice that has not changed but that has gotten more thorough is thought control. Some institutions now instruct their psychiatric aides and other custodians to monitor predators around the clock — including their off-the-cuff remarks, mail and choice of spare-time reading material — for any evidence they might not fully believe what the treatment program is preaching. [*45]
By necessity the systems for implementing predator laws are designed to detect and punish beliefs. In the absence of objective methods, belief is the only way the state has to determine whether a predator has changed and may be released.
Criminal prison inmates may believe what they wish and to a certain extent act on it, e.g., protest their innocence and file court petitions in their defense. For someone declared a predator, any attempt to assert their beliefs locks them in an ideological battle with the state. No matter for those committed as child molesters that there is a body of evidence — small and hotly contested — which asserts sex between minors and adults is not necessarily harmful [*46]. Any attempt for a predator to rationalize his or her conduct is to deny it, and denial is considered non-compliance with treatment. [*47]
Instead, predators must prove a negative, namely that there be no doubt they are no longer dangerous. This is a tough standard to meet. To prove a negative one must do so absolutely. Any doubt means they might commit another crime.
Undermining Due Process
Historian Philip Jenkins points to what had been a pattern every decade or two of relative indifference toward adults having sex with children, followed by an egregious crime that spurs a panic and ill-conceived legislation. Today, he says, this has solidified into a seemingly permanent repression. In his book Moral Panic, he says the child sex abuse movement is "all but indestructible" [*48], and notes it has continued to gain momentum despite setbacks such as the day-care and repressed-memory debacles (the latter still alive in forensic psychology textbooks, having been re-christened by its believers as "traumatic amnesia"). [*49]
The number of people committed as predators, now in the several hundreds, is likely to rise to tens of thousands within a few years given the steady inflow and "no exit" policies of the states' programs. Buttressed by laws requiring licensed professionals and those holding specified jobs to report illicit sex, backed by expanded social work / mental health / police resources and taking advantage of missing criminal-law protections, there is no doubt more people will be incarcerated indefinitely.
But of greater concern is the line we cross when we lose fundamental constitutional protections.
All of the rights eroded by Hendricks are important, but perhaps none as much as due process. Part of the "great safeguards which the law adopts in the punishment of crime and the upholding of justice" [*50], it stretches back centuries, from the Egyptians to the Aztecs, seen in every civilization that pretends to rule of law. It means fundamental fairness, preventing the State from using its awesome power arbitrarily. It is an essential moral underpinning to our democracy, part of the compact which obligates the State to safeguard our right to live freely.
The Supreme Court's Hendricks decision allows states to find an individual can control his or her conduct for the purpose of criminal confinement, yet can not control the exact same conduct for the purpose of civil commitment. This switches off what were bright standards limiting when and how the government can confine people. It gives the State a broad new opening under law to confine its citizens.
It remains to be seen if the line has been drawn at predators or if the government will move to lock up others thought to be maladjusted and dangerous. It is disturbing to know it has the power to do so.
Mark McHarry is a consultant in the high-tech industry. He has written articles and reviews for Alternative Press Review, Bay Area Reporter, Gay Community News, Journal of Homosexuality, PAN and the Roundel, among others.
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