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Comments on Criminal Issues
March 1, 2007
THE WALSH ACT AND ITS “SORNA” IMPLICATIONS
Houston Criminal Defense Attorney John Floyd Discusses Sex Offender Registration Act
In July 2006 President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act (“Walsh Act”). Title I of the Walsh Act is called the Sex Offender Registration and Notification Act (“SORNA”) which expanded the National Sex Offender Registry and established sanctions up to a maximum of twenty years for sex offenders who do not comply with the law’s registration requirements.
The Jacob Wetterling Crimes Against Children and Sexually Violent Registration Act, a federal law enacted in 1994, created the first set of standards for sex offender registration and notification in the United States. This act required convicted sex offenders to register their residential addresses with local law enforcement agencies and mandated state sex offender Web sites.
While putting forth an innovative, and controversial, monitoring system for sex offenders, the Wetterling Act quickly attracted critics who pointed to the discretion enjoyed by the states in deciding which offenders should be registered and the amount of information that should be posted about them on their Web sites. A hodgepodge of registration/notification standards emerged which permitted sex offenders to scour the various state programs find the ones with the most permissive requirements.
One of the underlying purposes of SORNA is to close these registration and notification gaps with greater offender accountability and sanctions for non-compliance by the offender. SORNA applies to all 50 states, the District of Columbia, the five principal U.S. territories (Guam, American Samoa, the Northern Mariana Islands, the Virgin Islands, and Puerto Rico), and the federal Indian tribes whose jurisdictions are defined by the statute.
These jurisdictions have until July 27, 2009 to implement the SORNA standards. Failure to comply would put the jurisdiction at risk of losing 10 percent of federal Byrne Justice Assistance funds. While most jurisdictions welcomed the 2006 enactment of SORNA, some states have begun to question certain harsh ramifications of the law, especially as it is applied to juveniles. Prior to the Walsh Act, the only juveniles required to register as “sex offenders” were those prosecuted and convicted as adults. SORNA is not so kind. It requires that juveniles 14 years of age or older tried and convicted as adults for crimes comparable to aggravated sexual abuse or more serious offenses in juvenile courts to be treated in the same manner as adult sex offenders. They must register with local law enforcement either after conviction or upon release into the community, and significant information about them can be released to the public.
Texas is one of an increasing number of states that has indicated it will ignore the minimum registration/notification requirements of SORNA concerning juvenile sex offenders. This decision has been influenced by criticism from an unlikely coalition of law-and-order conservatives: victims’ rights advocates, prosecutors, and “tough-on-crime” legislators. These critics now believe that SORNA is too costly, unnecessarily strict, and has the potential of harming the very victims it was designed to protect.
“We think our laws are strong enough,” Sen. Florence Sharpio, R-Plano, the legislature’s leading proponent of sex offender registration who was quoted in a recent Houston CHRONICLE article (Feb. 18, 2008).
The chief of the juvenile division in the Harris County District Attorney’s Office, Bill Hawkins, tends to agree with Shapiro: “When the pendulum swings, it tends to swing pretty hard. There are an awful lot of sexual assault cases, and then there are kids who engage in sex at an early age. The Adam Walsh Act wants to put them all together.”
The CHRONICLE reported that the U.S. Justice Department is expected to issue the final guidelines states must follow under the Walsh Act to remain eligible for federal criminal justice funds. One of the Texas lawmakers who initially supported the Act now opposes it because of its application to juvenile offenders and the potential cost of its implementation to those offenders. Rep. Jim McReynolds, D-Lufkin, told the CHRONICLE that it would cost local communities more to enact the SORNA requirements than what it would receive in Byrne Justice Assistance funds.
“It’s a financial loser … an unfunded mandate,” McReynolds told the CHRONICLE.
While Texas has for years included juveniles in its sex offender registry, it was not an automatic proposition because judges retained the discretion to decide which ones should be entered. The CHRONICLE reported that of the 47,000 sex offenders listed on the Department of Public Safety’s Web site, only 275 of them are under 18 years of age. However, there are 3,853 registered sex offenders who committed their offenses when they were juveniles.
The Walsh Act does not permit state judges any discretion in deciding who will be registered – the Act unequivocally mandates that anyone 14 years of age or older convicted of a sex offense must be registered.
The CHRONICLE pointed out the potential harm this mandatory registration requirement poses. A 14-year-old boy convicted of having consensual sex with a 12-year-old girlfriend would be treated the same as a “repeat adult predator who attacked a 3-year-old,” the newspaper said. “Both would fall into the most severe category, Tier III, requiring them to register four times a year for at least 25 years and possibly for the rest of their lives.”
“It’s based on the offense of conviction and not on the risk level,” said Allison Taylor, executive director of the Texas Council on Sex Offender Treatment.
Sen. Shapiro and others say that their criticism is not a “soft” approach on the handling of sex offenders, regardless of whether they fall into a low or high risk category.
“I don’t have any problem if they’re adults,” she told the CHRONICLE. “It’s much more difficult to change the behavior pattern of a 35- or 40- year old man.”
The CHRONICLE cited studies which show that less than 10 percent of juveniles who commit sex offenses re-offend as adults. University of California law professor Franklin Zimring has studied this issue. One of his studies found that juveniles who commit non-sexual offenses are twice as likely to become sex offenders as adults compared to juveniles who commit sex offenses.
But not everyone is prepared to embrace what the CHRONICLE called the “go-softer-on-juveniles” approach. Victims of sexual assaults by juveniles consider these assaults the same as though they had been committed by adults. And there is statistical evidence showing that juveniles are becoming increasingly more sexually active, and aggressive.
For example, in 2001 the Rand Corporation initiated a study to determine the impact of sexually explicit music on the sexual behavior of teenagers between the ages of 12-17. The study involved 1461 participants, most of whom had no prior sexual conduct prior to the study. The results were startling: 51 percent of the teens who listened to songs with explicit sexual lyrics – songs that portrayed men as “sex studs” and women as sex objects – were more likely to engage in sexual intercourse or other sexual activities within two years of listening to the sexually explicit lyrics as compared to 29 percent of those teens who did not listen to sexually explicit music.
The results of the study were reported in Pediatrics (August 6, 2006). Steven Martino, the lead author of the study, said that exposure to sexually degrading music gave many teens a “specific message about sex”: boys learn they should be relentless in their pursuit of women and girls learn to view themselves as sex objects.
“We think that really lowers kids’ inhibitions and makes them less thoughtful” about sexual decisions, prompting many to make decisions they regret later, Martino told Associated Press in August 2006.
Natasha Ramsey, a 17-year-old New Jersey teen, is editor of Sexetc.org., a teen sexual health Web site produced at Rutgers University. “I won’t really realize that the person is talking about sex or raping a girl [in the music],” Ramsey told Associated Press, “[but it] is being beaten into the teens’ head. We don’t even really realize how much. A lot of teens think that’s the way they’re suppose to be, they think that’s the cool thing to do. Because it’s so common, it’s accepted. Teens will try to deny it, they’ll say ‘No, it’s not the music,’ but it is the music. That has one of the biggest impacts on our lives.”
David Walsh agreed with the findings of the Rand study and Ramsey’s assessment. The psychologist who heads the National Institute on Media and the Family said that music videos and other visual media certainly influence human behavior. At the same time sexual interest is triggered in a teenager, Walsh told AP, the brain’s impulse-control center undergoes a “major construction.” When the exposure to sexually stimulating music meets the psychological/physical mix of brain maturation and developing sex drive, “it’s not surprising that a kid with a heavier diet of {sexually explicit music] would be at greater risk for sexual behavior,” Walsh said.
Martino said that Rand researchers tried to include the impact of parental permissiveness and other social factors on teens’ sexual behavior but found that sexually explicit music had the most significant impact.
Leonard Pitts, a Miami Herald syndicated columnist, agreed. In April 2006 he wrote that violent sexual fantasies among teenagers has “seeped like sewage into our culture, showing up in that video game where you kill prostitutes and rob them, in that music video where a credit card is swiped through a woman’s backside, in the defamation and death threats that greeted the young woman who accused Kobe Bryant of raping her.”
In the case of In the Interest of B.L.S., 264 Ga. 643, 449 S.E.2d 823 (Ga.1994) the Georgia Supreme Court pointed out that “ … sexual activity has increased dramatically among young people in recent years, so few children are being prosecuted for their behaviour [sic], and exposure to sex and sex education at an early age, like it or not, has become a way of life.
“In a recent study administered at 32 Georgia high schools, fully 46% of the freshman girls (generally aged 14 to 15) surveyed reported that they were sexually active. Furthermore, one in seven of all of the students polled said they had started having sex before age 13! The statistics make it clear that the behavior is becoming more common: one in ten seniors said they had sex before age 13, while one in six freshmen said they had become sexually active before that age. A study of child welfare recipients indicated that 35% of the children in foster care, and 22% of those living at home, had had sexual intercourse before their thirteenth birthday. (See Sex, Contraception and Pregnancy Among Adolescents in Foster Care, Family Planning Perspectives, Vol. 21, No. 5, Sept./Oct. 1989). Another recent study shows that 20% of this country’s young people who attend church had participated in some form of sexual experimentation by age 13. Study Shows Church Kids Are Not Waiting, Christianity Today 51 (19__). Even as early as 1982, in a survey of 160,000 teenagers regarding their feelings and experience with sexual matters, 31% of the 13 to 14 year olds surveyed reported that they had had sexual intercourse. J. Norman & Harris, The Private Life of the American Teenager, 1982.” Id., 449 S.E.2d at 826.
In Coleman v. Caddo Parish School Board, 635 So.2d 1238, 90 Ed. Law Rep. 1343, 25,617 (La.App. 2 Cir. 3/31/94) the Louisiana Second Circuit Court of Appeal quoted Dr. Robert Coles, Psychiatrist at Harvard Medical School, concerning teenage sex: “What a child needs as much as food, clothing, and a good education, is a moral purpose. Children need something to live for, not to yield to gross materialism, aimless hedonism and self-indulgence.”
There exists in this country a popular misconception that ‘rape” is an adult crime – and that it is generally committed by adults against children. It is difficult for the average person to perceive of rape as a crime by children against adults, but ample evidence has been compiled by the United States Justice Department showing that rape is also a “child’s crime.” An examination of this evidence is revealing:
BUREAU OF JUSTICE STATISTI CS
REPORTING CRIME TO THE POLICE 1992-2000
•31% of sexual of assaults reported
•31% of offenders were alone in the offense
•27% of sexual assaults reported when offender a friend/acquaintance
•28% of offenders did not have weapon
•40% of sexual assaults reported when the offender was armed as compared to 28% when the offender was not armed
•In general the younger the offender, the lower the percentage of crime reported to the police. Violent crimes committed by 12-14 year olds were reported at smaller percentage than older offenders committing the same offense.
•Sexual assault victims between ages 25-34 reported 29% of time; age 35-49 reported 32% of time
BUREAU OF JUSTICE STATISTICS
PROFILE OF STATE PRISONERS 2000
•Number of sexual offenders under age 18 doubled between 1987-97
•In 1995 43% of all state sex offender inmates were 18 years or under
These statistics reveal that “rape” is indeed a young man’s crime – the number of youthful rapists doubled in the decade between 1987 and 1997. By 1995 nearly one half of all state sex offenders were under 18 years of age. The statistics not only reflect the physical ability of teenagers to rape but the sexual aggression necessary to inspire the rape.
BUREAU OF JUSTICE STATISTICS
INDICATORS OF SCHOOL CRIME AND SAFETY 2005
•1993-2003 there were 65,000 violent attacks on teachers in public schools
•1999-2000 there were 1,163,000 serious disciplinary infraction public/schools
These statistics reflect the physical aggression of teenagers – thousands of attacks on teachers (all adults and many female), and more than a million serious disciplinary infractions in one year.
BUREAU OF JUSTICE STATISTICS
REPORTING CRIME TO POLICE – 1992-2001
•31% of the sexual assaults reported to police
•Victims of violence, especially sexual violence, were less likely to report 12-14 year olds than any other age group.
The reason most often given for not reporting a sexual assault to the police was that it was a “private/personal matter.” Most women simply cannot bring themselves to report to the police a rape committed by a 13 year old.
Adolescent sex offenders have not drawn as much media and public interest as adult sex offenders. There is the lingering puritan, Christian belief that teenagers are “too young” to know about sex – but studies have shown that puberty is coming at a much younger age. Sex education in the school system, explicit sexual content in music, increased sexual exposure in the entertainment industry, and overt sexual behavior in the family unit have created an increasing number of adolescent sex offenders.
For example, the Center for Sex Management in Silver Springs, Maryland in 2000 released a report entitled “Adolescent Offenders – Myths/Facts about Juvenile Sex Offenders which revealed the following significant findings:
•13-17 year olds commit one-fifth of all rapes and one-half of child molestations in this country.
•In 1995 approximately 18 adolescents per 100,000 were arrested for forcible rape.
•The study found that most of these offenders were adolescents but prepubescent youths engaged in sexual behavior as well.
•Juvenile sex offenders are generally between 13-17 years of age
•30-60% exhibit learning disabilities and academic dysfunction
•Up to 80% have diagnosable psychiatric disorder
•Many have difficulty with impulse control and judgment
•20-50% have history of physical abuse
•40-80% have history of sexual abuse
The Center for Sex Management’s study was supported by another 2000 study undertaken by the University of Virginia: Understanding Juvenile Sex Offenders: Research & Guidelines for Effective Management & Treatmen; Juvenile Justice Fact Sheet. Charlottesville, VA; Institute of Law, Psychiatry, & Public Policy, University of Virginia. Dr. J.A. Hunter opens the report with the following observations:
“Juvenile perpetrated sexual aggression has been a problem of growing concern in American society over the past decade. Currently it is estimated that juveniles account for up to one-fifth of the rapes, and one-half of the cases of child molestation committed in the United States each year. The majority of cases of juvenile sexual aggression appear to involve adolescent male perpetrators; however, a number of clinical studies have pointed to the presence of females and prepubescent youths who have engaged in sexually abusive behaviors.”
Dr. Hunter noted that the “developmental origin” of aggressive juvenile sexual behavior include but is not limited to “ … maltreatment experiences, exposure to pornography, substance abuse, and exposure to aggressive role models.”
Dr. Hunter identified the characteristics of the two types of juvenile sex offenders: the ones who target children and those who target peers or adults. “The difference between these two groups,” Dr. Hunter said, “is usually based on the age difference between the victim and offender.” The following is a list of characteristics identified by Dr. Hunter that are associated with juvenile sex offenders who target peers or adults:
•Juveniles who sexually offend against peer or adults predominantly assault females and strangers or casual acquaintances.
•The sexual assaults of these youths are more likely to occur in association with other types of criminal activity (i.e., burglary) than are the assaults of those who target children.
•These juvenile sex offenders are more likely to have histories of non-sexual criminal offenses, and appear more generally delinquent and conduct disordered than those who sexually assault children.
•This group of youthful offenders is also more likely to commit their offenses in public areas than those who offend against children.
•These juveniles generally display higher levels of aggression and violence in the commission of their sexual crimes than those who offend against children.
•Youths who sexually offend against peers or adults are more likely to use weapons and to cause injuries to their victims than those who sexually assault children.
Dr. Hunter found the following characteristics are common in both types of juvenile sex offenders: higher rates of learning disabilities and academic dysfunction (30-60%); the presence of other behavioral health problems, including substance abuse, and disorders of conduct (up to 80% have some diagnosable psychiatric disorder); and observed difficulties with impulse control and judgment.
In North Carolina v. Drummond, 81 N.C.App. 518, 344 S.E.2d 328 (Ct. of App. 1986) dealt with a case in which an ll-year-old child was convicted of “first degree rape” against a six year old child. This case certainly supports the findings of an increasing number of studies that show adolescent and prepubescent sexual aggression has become a significant social issue warranting concern.
These reports and studies clearly reveal that “child molestation” and “sexual assaults” are not purely an adult phenomenon. The Crimes Against Children Research Center at the University of New Hampshire reported in 2006 that 60,000 to 70,000 arrests are made each year in sex crimes against children. Juveniles comprise a significant percentage of these sexual assaults. The Walsh Act was designed to place these juveniles under the registration and notification requirements of SORNA.
Is this a rational, sensible criminal justice policy? Many proponents of the Walsh Act now believe it is not.
But as this debate gains momentum it should be noted that there are approximately 551,000 sex offenders registered in the United States, according to the National Center for Missing and Exploited Children. It should also be pointed out that shortly after President Bush signed the Walsh Act USA TODAY reported that the number of sexual assaults against children ages 12 to 17 decreased by 79 percent in the decade between 1993 and 2003. The United State Department of Justice, through its Office of Juvenile and Delinquency Prevention, also reported a 40% decline in sexual offenses against children between 1992 and 2000. During that same period, there was a 56% decline in victim-reported offenses against children.
The U.S. Justice Department has further pointed out that sex offenders have a 15% recidivism rate while other offenders have a 43% recidivism rate. The State of Washington firmly advocates a policy of treatment for sex offenders. It leads the nation in such programs. Proponents of such treatment programs attribute the success of these programs to the lower recidivism rates for sex offenders.
But for the sake of balance it should also be pointed out that in 2006 the Washington State Institute for Public Policy released a study that reported the state’s prison treatment programs for male offenders had no real effect at reducing recidivism rates for sex offenders. A 2005 California study drew similar conclusions concerning its hospital program for confined sex offenders.
“There’s pretty good evidence that if you pick out the right kind of people, who feel badly about what they’ve done, you can alter those patterns,” said Roxanne Lieb, director of the Washington State Institute for Public Policy. “But if you have someone who’s anti-social, who hates women or who is sexually attracted to little kids, no one knows anything about what to do about those three things.”
These studies have not deterred the state of Washington. It maintains a 200-bed, $1.8 million-a-year program at the Twin Rivers Unit in the Monroe Correctional Complex – and, in fact, state officials want to establish a similar program in yet another penal facility.
“The [Public Policy] study says what it says,” said Sally Neiland, program’s prison supervisor. “But being here every day, seeing the men released, watching them graduate, hearing from them, they have successful lives – they report that wouldn’t have happened without treatment.”
The statistics in Washington are indeed impressive. 2.7% of the sex offenders who did not receive treatment and released from prison were convicted of a sexual felony within six years while only 1.8% of those who received treatment were convicted of a sexual felony within six years. The figure is even less for those offenders who wanted treatment but couldn’t get it – 0.t6%
Washington officials point out that in the United States, Canada and other Western countries 9.9% of sex offenders who participate in state-of-the-art treatment programs re-offend with new sex crimes while 17.4% of those who do not receive treatment re-offend with new sex crimes
This column previously reported that these prison sex offender treatment programs include teaching offenders how to recognize stressors for anger or boredom, how to develop social skills, and how to empathize with their victims. They are also instructed about how to change their thought and behavioral patterns. The latter is frequently accomplished with a treatment called “arousal conditioning” – associating a foul odor like Limburger cheese or rotting meat to a deviant sexual fantasy. Supervisors and counselors in these programs measure success with polygraph examinations and plethysmograph tests, the latter of which measures penile arousal to pornographic material.
The programs also include controversial treatment therapies such as “chemical castration” – combining anti-depressants and anti-androgens which reduces testosterone, but the latter drug has such severe side effects that only a few offenders try it.
“The reality is this: Nothing beats intelligence,” said Robert Packard, a clinical forensic psychologist and past president of the Washington Association for the Treatment of Sexual Abusers. “We spend no money on trying to understand how to do better – how to evaluate and treat offenders better.”
But one Washington lawmaker is not buying treatment. “It’s no big secret treatment doesn’t work,” said Pam Roach, a longtime advocate of decreased funding for the state’s sex offender treatment programs. “You cannot rewire somebody’s mind.”
Texas Sen. Florence Shapiro would agree, to a point. She and others who are critical of the Walsh Act’s restrictions on juvenile sex offenders apparently believe that these young minds can be “rewired.” The reality is that there is no significant empirical evidence that shows juvenile sex offenders are more amendable to rehabilitation than adult sex offenders. This bring us to the bottom line: the rate of sexual assaults and sexual violence by juveniles is increasing at a rate significantly higher than among adults. So should SORNA apply to them?
All this begs many Questions. Can a convicted sex offender ever pay their debt to society and, after rehabilitation, live a normal life without the continued punishment of registration and public scrutiny? Does this continued registration and public condemnation actually prevent a sex offender from true rehabilitation and cause an intense frustration, and other emotional triggers, leading to relapse and re-offending?
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