Thesis: Protecting the Community From Sex Offenders Few

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Protecting the Community From Sex Offenders

Few crimes strike more fear into the hearts of the average citizen than sexually-based offenses. From the trauma of adult rape to the absolute horror of child predators who kill their victims, the community at large is terrified of those criminals who commit sexually-based offenses. This terror is justified, though it may be misdirected towards stranger crimes, rather than focusing on those criminals who commit sexually-based offenses against their own families and friends. This revulsion is also relatively recent and is largely limited to the Western world. In many societies, sexual offense victims are still penalized; some communities still seek to remedy rape by forcing the victim to marry the offender. Therefore, it should come as no surprise that methods for protecting the community from sexual offenders are relatively new. Nor should it come as a surprise that even the most innovative and promising policies can create serious problems for the various stakeholders involved. For example, Louisiana recently attempted to make repeat child sexual offenders death eligible. This law was an attempt to show community outrage at those who would prey on children, and many believed that the law would be found to be constitutional, despite an earlier Supreme Court decision holding that the infliction of the death penalty as punishment for the rape of an adult female violated the prohibition against cruel and unusual punishment. However, the Supreme Court determined that inflicting the death penalty as punishment for even repeated child sexual offenses also violated the prohibition against cruel and unusual punishment. Not all unsuccessful efforts to protect children from the threat of sexual assault have been as controversial as death, but many of them have met with great levels of resistance, because they are perceived to be ineffective, alarmist, or a combination of the two.

Mandating treatment for sexual offenders has, surprisingly, garnered little support in the community, because there is a perception that nothing can fix sexual offenders. However, that perception is false. Certain treatments have proven very effective at rendering child sexual offenders safe for the surrounding community. In addition, pedophilia is a DSM-IV diagnostic category, which means that current state law already permits the indefinite commitment of someone suffering from that disease, until such time as that person is determined to longer be a danger to self or others. However, current policy does not reflect that possibility, instead seeking to criminally prosecute the vast majority of people who offend against children.

First and foremost, it is important to understand that not all people who sexually offend against children are pedophiles and not all pedophiles sexually offend against children. Treating a situational child molester for pedophilia would be an ineffective waste of resources, but requiring a mandatory psychiatric evaluation for anyone charged with a sexual offense against a child would provide the opportunity to determine how to classify an offender and whether to seek prosecution or mental commitment. Therefore, the proposed policy is that all persons charged with a sexual offense against a child be placed under an emergency 72-hour psychiatric hold for evaluation for pedophilia, with the charge that they are a danger to self or others. If that person is determined to be a pedophile rather than a situational offender, then he would be subject to a civil commitment proceeding, where he would undergo treatment until such time, if ever, his doctors and the probate court judge determined that he was no longer a danger to self or others due to his underlying condition. Furthermore, because pedophiles, unlike situational offenders, are primarily sexually attracted to children, the offender would be given access to a variety of different options, including, but not limited to, chemical and action castration, to remove his sex drive, if that proved necessary to render him harmless to the community.

Policy stakeholders

Because this policy would require the diversion of many offenders from the criminal justice system into the civil commitment system, the most salient stakeholders are judges, prosecutors, defense attorneys, mental health workers, victims, and criminals. These stakeholders are significant because they are the people whose lives would be most strongly impacted by the change to the civil commitment system. First, prosecutors would be impacted, because they would be diverting many defendants out of the criminal justice system, resulting in lower conviction rates and less perceived accountability for the crimes. Defense attorneys would also be impacted, because the burden of proof for civil commitment is much lower than the burden of proof for a criminal conviction. Mental health workers would face the greatest impact; working to cure sexual offenders, doctors and other mental health workers would have to be cognizant of the differences between pedophiles and situational offenders, be aware of the range of treatment options available for each offender, and be willing to offer up any and all solutions to cure the pedophilia. Finally, criminals will be impacted by such a policy shift, because it could mean the equivalent of a life sentence for even first-time sexual offenders, but it could also provide sexual offenders with the treatment many of them desperately need and desire and cannot obtain while incarcerated.

Policy claim

The current policy in the state of Texas is to prosecute all sexual offenses against children. Only defendants with obvious mental issues, such as dissociative disorders, are selected for mental health treatment, and the goal of such treatment is to get the defendants capable of standing trial. In addition, those convicted of sexual offenses against children are subject to having to register on a sex-offender registry, which publishes their names, addresses, and limited information about the underlying sexual offense on the internet. However, Texas law also provides for the civil commitment of a person with a recognized psychological disorder who presents a danger to self or others. A pedophile that does not aggress against children or is not actively planning to aggress against a child would not be subject to civil commitment anymore than he or she would be to prosecution, because a civil commitment procedure requires proof that the defendant poses a real threat, not a theoretical threat, to himself or others.

However, a defendant who has sexual offended against a child and is determined to be a pedophile could be subject to commitment until such time as his treating physicians determine that he is no longer a danger to himself or others. Because pedophilia can be a very treatment- resistant disease, it is important that the offender have the entire range of treatment options available to him. Chemical and actual castration do accomplish the goal of reducing a pedophile's sex drive and can help them manage their sexual urges towards children when other treatment options have proven unsuccessful, and an offender should have the option of choosing that treatment in order to obtain release from commitment.

The prosecutors who were interviewed for this paper support the idea of initially diverting all sexual offenders into the civil commitment process, provided that the probate courts were adequately staffed to handle such a diversion. Currently, in Texas, the local county attorneys' offices handle civil commitment procedures. According to a supervisor in a county attorney's office, the civil commitment process allows a hospital to hold a person who is suspected of being mentally ill and who has tried to harm him or another for up to 72 hours for emergency observation. During that time period, doctors can evaluate the person to determine what, if any, mental disorder the person is experiencing and whether that person is a threat. If so, the state can pursue a civil commitment. However, some district attorneys are reluctant to give up control of criminal defendants by relinquishing them to the civil process, and the District Attorney indicated that he fears that the county attorney's office is not adequately staffed to deal with the increase in cases it would see if all sexual offenders were first routed through the civil commitment process. However, he did not disagree with the notion that treatment should be an option for offenders, as long as such treatment would not deprive district attorneys of their option to also criminally prosecute these offenders. On a practical basis, an assistant county attorney indicated that there was nothing in the civil commitment and observation process that should hinder a future criminal prosecution for the same act, and cited the fact that domestic violence offenders are frequently initially diverted into the civil commitment process and then later criminally prosecuted for their actions when they are determined not to have an underlying causative disease or disorder.

Defense attorneys would also be impacted by this process. Currently, the state appoints a defense attorney for most defendants facing civil commitment, and that attorney has limited time to consult with his or her client prior to the civil commitment procedure. This is because the law requires that people can only be placed on emergency hold for 72 hours, and that the commitment procedure occurs within that time. In addition, all three defense… [END OF PREVIEW]

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