At Crime & Consequences, Steven Erickson posts about the dangers of letting media sensationalized sex panic drive crime policy:
There's lots of good debate about the constitutionality of the death penalty for sex crimes, but there's another aspect worth considering.
During the 1980s the numerous child daycare sex abuse cases captivated the public. These cases were aided, in large measure, by junk science -- notably the repressed memory movement and police interviewing techniques that influenced children to falsely report abuse. We've learned a lot about the fallibility of childhood memories since then and the notion of repressed memories has been roundly debunked .
Given this perilous past, which was aided by the quite understandable conviction by most adults to protect children and severely punish those who commit the worst crimes against them, perhaps some pause is in order with the current trend to invoke the death penalty for sex crimes against children. Irrespective of constitutional arguments, history is replete with emotionally charged movements seeking to invoke the power of law in the realm sex.
And at Findlaw (HT: Sentencing Law & Policy), Professor Marci Hamilton takes a very different view:
If there is a way to measure the temperature of public opinion against child abuse, this is it, and it bodes well for children, even if it is not the most effective way of protecting children....
Some have expressed concern that if the penalty for pedophilia is raised to death, children may be deterred from reporting abuse, especially when it is committed by a relative. Yet such a small percentage of child sex abuse victims report their abuse at this point - estimates run about 10% -- that one has to wonder about the marginal effect of the death penalty. Kids already are terrified to report, usually because they are threatened by their abusers, so this shift in the law would seem to make little difference.
My concern, however, is that pedophile-death-penalty laws are, in the end, a distraction from what needs to be done to truly protect the most children possible, the most effectively....
As I discussed in a previous column, legislative reform for children is not hitting at the heart of the problem - the anonymity of the predators, which is guaranteed by overly short statutes of limitations. Megan's Law created public lists of sex offenders, but those lists are woefully short, because the statute of limitations in the vast majority of child sex abuse cases runs long before the victim has the ability to come forward to anyone, and without a criminal conviction, an offender cannot be placed on any state-maintained Megan's List. The result is that thousands upon thousands of predators are out there, unidentified to unsuspecting families and children....
As I discussed in a previous column, legislative reform for children is not hitting at the heart of the problem - the anonymity of the predators, which is guaranteed by overly short statutes of limitations. Megan's Law created public lists of sex offenders, but those lists are woefully short, because the statute of limitations in the vast majority of child sex abuse cases runs long before the victim has the ability to come forward to anyone, and without a criminal conviction, an offender cannot be placed on any state-maintained Megan's List. The result is that thousands upon thousands of predators are out there, unidentified to unsuspecting families and children....
Before investing any more effort in choosing between prison and death for known pedophiles, as a society we really need to focus on identifying the silent and secret society of child predators that is now enjoying the existing statutes of limitations. Revealing these existing predators is the most effective way of protecting our children right now - before further abuse occurs.
I can't say I agree with Hamilton's point. First off, her dismissal of the argument that the death penalty might cause underreporting of abuse seems odd. Arguing that the crime is already woefully reported so the effect would be small is an unusual counter-argument. The low reporting rate illustrates just how difficult the decision to report can be for victims. This is especially true because the attackers are most often friends or family. The death penalty makes this already difficult situation that much harder. As I have said before, reporting Uncle Frank to the authorities is much more difficult if death is on the table. I also find it odd that Hamilton chose to rebut this one argument of the many against the death penalty for child rape.
Hamilton ultimately doesn't take a strong position on the death penalty debate as she instead pushes her proposal for removing the statute of limitations for sex offenders. She claims this is the major problem in prosecuting sex abuse cases. I know Hamilton is writing in a forum that is not conducive to elaborating empirical support, but I find her claim to be a stretch. Is there really substantial evidence that most abuse victims are coming forward only to find the statute of limitations has run (or that they don't come forward because they know the statute has run)? I find that claim hard to believe. It certainly happens, but to argue that this is the major problem seems a hard case to make. I think Hamilton's scholarly focus on clergy abuse cases has led her to see the outlier case as the typical one.
With that being said, I think the rule (which is widely used as far as I know) that the statute of limitations runs once a child reaches adulthood provides a nice balance. If Hamilton wants to argue that the limit should run a couple more years, I wouldn't be opposed to that either. However, her proposal that we retroactively apply a repeal of the statute of limitations seems not just unconstitutional, but ill-advised. As the repressed-memory cases that Erickson blogged about illustrate, prosecuting sex crimes well after the event creates all sorts of problems. And without the media frenzy of the 80's, I think Hamilton is being optimistic that 20-year old cases will result in many convictions.
Lastly, I would also note that Hamilton's description of a "secret society" of sex offenders, while perhaps just rhetorical flourish, really doesn't describe the demographics of child molesters in the United States (although it describes the clergy abusers that she does a wonderful job examining very well).
I agree with your Corey. I think Hamilton isn't telling the whole story. Sex offender registries have only been in existence for a short time. We have yet to see just how many offenders out of the whole offender pool these statutes will apply to. It seems commonplace nowadays that all sex offenders are placed on these registries. But Hamilton's also misses something else: We don't really know how many sex offenders are out there to make the claim that most are unaccounted for. There is *very* little epidemiological evidence out there and much of it suffers from varying definitions of what a sex offender is. As I've said before, we just don't know much about sex offenders in the empirical sense.
Posted by: Steve Erickson | May 31, 2007 at 06:41 PM