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1 Sexual Offenses and Offenders

There are few groups of individuals who are more reviled than sexual offenders. Though this has been true for more than a century, the past two decades have brought forth intense scrutiny from the public, politicians, and policymakers. Several emotionally-charged cases of child sexual abuse were highly publicized in the 1980s and 1990s, reigniting public intolerance for sexual offenders. And although the incidence of sexual offenses has been decreasing, sanctions for sex offenders have been constantly increasing over the last two decades. Unfortunately, empirical research does not show that such sanctions significantly deter offenders or reduce recidivism, and yet this legislation creates significant financial strain for local jurisdictions and states that must implement the policies ( Zgoba et al., 2008 ). Despite the questionable efficacy of these laws, there is no sign of reducing the sanctions for this group.

This is not the first time historically that society has exhibited a “moral panic” about the dangers of sexual abuse. This panic has waned and ebbed throughout the last century. Jenkins ( 1998 , p. 4) explains that the perception of sex offenders is the effect of “socially constructed realities” influenced by existing social and political ideologies. The public desire to incapacitate sex offenders today is similar to social attitudes in the 1930s, when sexual psychopathy laws emerged to incapacitate those considered to be “unfortunate but dangerous wretches” ( Robson, 1999 , p. 2). So although empirical research has consistently shown that sex offenders constitute a heterogeneous population of individuals for whom a one-size-fits-all policy will not be effective, such policies regarding the supervision, monitoring, and incapacitation of sexual offenders have gone full circle since the beginning of the century.

The purpose of this text is to provide the reader with a general understanding of sex offenders and the societal responses to them. Historically, sex offender research has focused on why sex offenders commit such offenses, and the characteristics of different types of offenders. Sex offender research today is centered around three general topic areas: (1) the factors associated with sexual offending, including personal characteristics as well as situational variables; (2) sex offenders' risk of recidivism; and (3) the efficacy of policies and programs for sex offenders. Before addressing the issue of why people commit sexual offenses and how best to prevent them, however, it is necessary to understand the nature and scope of sex crimes in the United States today.

WHAT IS A SEXUAL OFFENSE?

More than 100 years ago, Richard von Krafft-Ebing ( 1886/1965 , p. 241) made the following observation about sexual behavior:

· Nothing is so prone to contaminate—under certain circumstances, even to exhaust—the source of all noble and ideal sentiments, which arise from a normally developed sexual instinct, as the practice of masturbation in one's early years. It despoils the unfolding bud of perfume and beauty, and leaves behind only the coarse, animal desire for sexual satisfaction. If an individual, thus depraved, reaches the age of maturity, there is lacking in him that aesthetic, ideal, pure and free impulse that draws the opposite sexes together. The glow of sensual sensibility wanes, and attraction toward the opposite sex is weakened. This defect in the morals, character, fantasy and instinct of the youthful masturbator, male or female, in an unfavorable manner, even causing, under certain circumstances, desire for the opposite sex to become entirely absent; thus masturbation becomes preferable to the natural mode of sexual satisfaction.

At that time, masturbation, homosexuality, and other sexual practices regarded as common today were not only condemned, but were also considered pathological and loathsome. Attitudes toward sexual behavior are structured through social and political ideologies, and they have changed drastically throughout the centuries. Some harmful sexual acts are—and should continue to be—illegal in nearly every community. One such example is rape, which constitutes a violation of the person and can cause irreparable harm both physically and psychologically. In describing rape, the Policy Advisory Committee on Sexual Offences in England stated that

· rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in effect obliterates the personality of the victim.… Rape is also unpleasant because it involves such intimate proximity between the offender and the victim. ( Criminal Law Revision Committee, 1984 )

The legally and socially accepted boundaries of other sexual behaviors, however, are not as clear, and sexual violence is not unique to any one culture or historical period ( Stermac, Segal, & Gillis, 1990 ). Sexual behaviors other than those for the purposes of procreation (for example, homosexuality, incest, adultery, masturbation, bestiality, and sexual activity with children) have vacillated among social acceptance, stigmatization, and illegality.

Sexual offenses vary across time and cultures, and even across various jurisdictions in the United States. The types of sexual acts that may be criminalized can be broadly categorized in four ways, though these are not necessarily mutually exclusive:

· 1. Sexual acts with contact . Most sexual offenses are within this category, where there is touching of the intimate part(s) of the body or penetration either without the consent of the victim or when one person is incapable of consenting under the law (for example, a person who has not yet reached the age of consent, a person who is not conscious, or a person who is dead). This category involves all contact acts, from touching over the clothes to forced sexual intercourse.

· 2. Noncontact sexual behavior . This involves acts that are for the purpose of sexual gratification, but no contact is made between the perpetrator and the victim (for example, exposure of the genitals, voyeurism (peeping), and telling children to perform sexual acts).

· 3. Viewing, possessing, or producing child pornography . This third category includes any act involving the viewing or producing of any visual material of a child that is for the purpose of sexually gratifying an adult. This may include sexual contact with children or the sexual exploitation of children in photos and films. Recent examples include “sexting,” or texting sexual pictures of oneself to another person (discussed further in Chapter 7 ).

· 4. Sexual solicitation or trafficking . Acts included in this category are based upon sexual services exchanged for financial or other types of compensation. Sexual solicitation may involve prostitution in a traditional sense (solicitation of sexual services through face-to-face meetings). Alternatively, adults may seek sexual relationships with adolescents, usually online, which may or may not result in a face-to-face meeting. Trafficked victims may be adults or minors, domestic or international, and are generally lured into performing sexual services for promises of money and/or a better life.

There are some offenses common across all jurisdictions in the United States, though the terminology differs depending on the jurisdiction. For example, although most states use the term rape to define offenses involving nonconsensual oral, anal, and/or vaginal penetration, this is called sexual imposition or gross sexual imposition in North Dakota and is called sexual assault in Colorado. Additionally, the specific definitions of this crime differ in terms of who can be a victim or an offender (male and/or female), the class of felony or misdemeanor, and the age of the victim (some define the different degrees by age ranges, with acts committed against younger victims being more serious offenses).

Many states also label some consensual sexual acts as offenses. Thirteen states listed consensual sodomy as a criminal act as recently as 2003, when sodomy laws were invalidated and declared unconstitutional by the Supreme Court ( Lawrence v. Texas, 2003 ). Other consensual acts that continue to be illegal in some states include incest (intergenerational and between siblings), adultery, bigamy, female genital mutilation, fornication, masturbation for hire, indecent dancing, prostitution, and public indecency ( Leiter, 1999 ). In addition to these offenses, other crimes that are not necessarily sexual in nature are registerable offenses, such as kidnapping.

For most sexual offenses, there must be a lack of consent on the part of the victim and some level of intent on the part of the offender. The laws in most states stipulate that consent is lacking from a sexual act when:

· ▪ The act is the result of force, threat, or duress;

· ▪ A reasonable person would understand that the victim did not consent due to a clear or implied statement that he or she would not want to engage in the sexual act; or

· ▪ The victim is incapable of consenting because he or she is below the age of consent (this ranges from age 16 to age 18 in various states), is mentally disabled, is mentally incapacitated, is physically helpless, is under the custody of correctional services, or is placed within the care of children and family services (or any other organization in charge of monitoring and caring for those in care of the state).

Offenses vary by type, degree of severity, class of offense, and length of sanction. In some states, these are defined simply by class of felony or misdemeanor. In other states, they are divided into first, second, and third degree offenses, with first degree offenses being the most severe. For example, Table 1.1 shows how New York classifies rape into three degrees. The sanctions associated with the degree of the offense increase as the severity of the offense increases.

TABLE 1.1 New York Penal Code Definition of Rape

Code Section

Offense

Degree

Definition

§130.25

Rape

Third

He or she engages in sexual intercourse with another person, to whom the actor is not married, who is incapable of consent and is not less than 17 years old; actor is over 21 years old and engages in sexual intercourse with someone less than 17 years old. Class E Felony.

§130.30

Second

Actor is over 18 years of age and he or she engages in sexual intercourse with someone less than 14 years of age; victim is otherwise mentally disabled or mentally incapacitated. Class D Felony.

§130.35

First

He or she engages in sexual intercourse with a person by forcible compulsion; who is incapable of consent because he or she is physically helpless; who is less than 11 years of age; who is less than 13 years old and the actor is over 18. Class B Felony.

SOURCE: New York Penal Law (2000)

VIGNETTE

SEXTING: The Emergence of New Sexual “Offenses” in the 21st Century

Accepted sexual behaviors change over time and by place, and are regulated by social and cultural norms. Over the last few decades, there has been an emergence of new behaviors, often related to developing technology, that are being considered sexual offenses. One such phenomenon is “sexting,” in which people text nude or semi-nude photos of themselves to others. Though this has become a widespread practice generally, it is particularly common among adolescents. A survey of 1300 teens conducted by the National Campaign to Prevent Teen & Unplanned Pregnancy and CosmoGirl.com found that one in five teens had sexted, even though the majority knew it was a crime.

Several sexting cases have made media headlines, since sexting can have serious legal consequences for those who partake in this activity. One such example was of Phillip Albert, a teenager in Orlando, Florida. After an argument with his 16-year-old girlfriend, Phillip, then 18, sent a picture of his naked girlfriend that she had texted him to her family and friends. Phillip was charged with sending child pornography, convicted, and sentenced to five years of probation. Additionally, he is required to register as a sex offender until age 43. Phillip's attorney is appealing the conviction, noting that “sexting is treated as child pornography in almost every state and it catches teens completely off-guard because this is a fairly natural and normal thing for them to do. It is surprising to us as parents, but for teens it's part of their culture” ( Feyerick & Steffen, 2009 ).

Another high-profile sexting case occurred in Pennsylvania. Marissa Miller was 12 years old when she and a friend took pictures of themselves wearing training bras while at a slumber party. The picture soon surfaced on another classmate's cell phone. The district attorney for the county told Miller and her friend that they could take probation and re-education classes or be charged with sexual abuse of a minor. Miller's mother, along with another family, refused to take the deal; instead, they contacted the ACLU (American Civil Liberties Union) and with its help is suing the district attorney to stop him from filing charges.

Phillip Albert's attorney noted that “Some judges have the good sense and reasonableness to treat this as a social problem and others are more zealous in their efforts to put everybody away and I think it's time as a society that we step back a little bit and avoid this temptation to lock up our children” ( Feyerick & Steffen, 2009 ).

Questions

· 1. What should be the consequences for teens who “sext”?

· 2. What are the potential harms that can result from “sexting”?

· 3. Explain the similarities and differences between sexting and transmitting or possessing child pornography.

© Cengage Learning

PREVALENCE OF SEXUAL OFFENDING AND VICTIMIZATION

It is impossible to accurately assess the extent of sexual offending and the characteristics of offenders. Most data on sex offenders relate to those who are either arrested or convicted, a group that represents a small portion of all sexual offenders. From 1992 to 2000, only 31 percent of rapes and sexual assaults were reported to the police ( Hart & Rennison, 2003 ). Of those that are reported, not all end in arrest, and not all of those go on to indictment or conviction. This “funnel” system means that the further researchers are from the point at which the crime was committed, the further they are from knowing the true nature and scope of the problem of sexual offending. Furthermore, nearly all data on sex offenders relate to the male population of offenders. As such, the female sex offender population constitutes an even higher rate of the underreported and underresearched proportion of the total sex offender population ( Righthand & Welch, 2001 ; Travin, Cullen, & Protter, 1990 ).

What is certain about sexual abuse, particularly child sexual victimization, is that it is widespread, and it remains so despite the precipitous decline in abuse cases in the 1990s (see Child Maltreatment Report, 2001 ; Hanson & Morton-Bourgon, 2004 ; Jones & Finkelhor, 2004 ). One meta-analysis summarizing prevalence studies found that overall rates of sexual victimization were approximately 30 percent for girls and 13 percent for boys in one's lifetime ( Bolen & M. Scannapieco, 1999 ). According to Finkelhor ( 2008 ), children who experience sexual abuse often experience multiple types of abuse. Finkelhor, Ormrod, Turner, and Hamby ( 2005 ) found that in 2002–2003, nearly half (49 percent) of the youth sampled in their study had experienced more than one form of direct (assault, maltreatment, sexual victimization) or indirect (witnessed) victimization. The concept of “multiple victimization” is consistent with findings from longitudinal studies by Cathy Widom and her colleagues (see Horwitz, Widom, McLaughlin & White ( 2001 ); Widom, Czaja, & Dutton, 2008 ).

The high rate of sexual victimization is not simply a criminal justice problem, but is also a public health problem ( Abel et al., 1994 ). Those who are victimized as youths show higher levels of mental health problems as adults ( Horwitz et al., 2001 ). Confounding this issue is the low rate of reporting of victimization, or when it is reported, the delay in disclosure. The literature shows that several factors are commonly associated with the delay in disclosure (see Terry & Tallon, 2004 ), including the relationship between the victim and the perpetrator ( Arata, 1998 ; Hanson et al., 1999 ; Smith et al., 2000 ; Wyatt & Newcomb, 1990 ); the severity of abuse ( Gries et al., 1996 ; Kogan, 2005 ; DiPietro et al., 1997 ); the likely consequences of the disclosure ( Berliner & Conte, 1995 ; Hershkowitz et al., 2007 ; Lamb & Edgar-Smith, 1994 ; Roesler & Weisssmann-Wind, 1994 ; Sorenson & Snow, 1991 ); age, developmental, and cognitive variables ( Campis et al., 1993 ; Keary & Fitzpatrick, 1994 ; Lamb & Edgar-Smith, 1994 ); and “grooming” behavior that offenders use to entice children to participate in the sexually abusive behavior ( Pryor, 1996 ).

Most studies indicate that when compared with their male counterparts, females are more likely to have been sexually abused during childhood. Furthermore, females are more likely than males to disclose information regarding sexual abuse, and male victimization seems to be acutely underreported ( Brochman, 1991 ; Devoe & Coulborn-Faller, 1999 ; Finkelhor, 2008 ; Gries et al., 1996 ; Lamb & Edgar-Smith, 1994 ; McMullen, 1992 ; Tewksbury, 2007 ; Walrath, Ybarra, & Holden, 2003 ). That being said, reports are beginning to emerge about high rates of sexual abuse of boys in particular institutions and organizations. The lack of knowledge about male sexual victimization is striking; because so few males report, most information about their victimization is anecdotal or derived from studies with small sample sizes. As such, little statistical knowledge is available about males' long-term physical, psychological, and emotional effects, or about abuse events themselves.

Knowledge of sex offenders and rates of victimization are based upon two primary sources: official data (including criminal justice reports, victimization surveys, and social service data) and empirical studies. Table 1.2 shows the strengths and weaknesses of the different data sources.

TABLE 1.2 Comparison of Data Sources

Source of Data

Strengths

Weaknesses

Uniform Crime Reports (UCR)

· ▪ Most common source of official criminal justice data in the United States

· ▪ Reliable because it measures the same offenses each year

· ▪ Makes it possible to compare the crime rate in jurisdictions of varying sizes

· ▪ Hierarchy rule

· ▪ Relies on official statistics, voluntary reporting by police

· ▪ Definitions of some offenses incomplete

National Incident-Based Reporting System (NIBRS)

· ▪ Gathers incident-based data

· ▪ Detailed information available on offenders, victims, properties, and locations of offenses

· ▪ Not yet widely implemented

· ▪ Complicated, time consuming reporting system

National Crime Victimization Survey (NCVS)

· ▪ Provides information on the dark figure of crime

· ▪ Gives information on why crimes are underreported

· ▪ Most extensive bounded study

· ▪ Self-reports not totally reliable

National Incidence Study (NIS)

· ▪ Extensive data collection in four reports

· ▪ Reports data on children reported to CPS, screened out, and reported by “sentinels”

· ▪ Data from a nationally representative sample from 126 CPS agencies in 122 different counties

· ▪ Abuse underreported and not always recognized

National Child Abuse and Neglect Data System (NCANDS)

· ▪ Provides annual reports of child abuse

· ▪ State-by-state information distinguished by types of child abuse

· ▪ Information is not always reported to social services and thus may be incomplete

Empirical Studies

· ▪ Can provide deeper analysis of issues by observing samples of the population

· ▪ Studies use varying methodologies and definitions, and thus may not be comparable

© Cengage Learning

Official Data on Sexual Victimization

Official statistics on sexual offending are derived from several sources. The primary criminal justice data sources include arrest and conviction rates. Since it is difficult to gather this on a local level, the most common sources used to understand prevalence rates are federal reports, including the Uniform Crime Reports (UCR), and National Incident-Based Reporting System (NIBRS). Victimization surveys, namely the National Crime Victimization Survey (NCVS), provide data about the amount of victimization that is underreported in official statistics. Social service data sources provide more detailed information about the extent and nature of child sexual abuse allegations, and the key sources for this information include the National Incidence Study (NIS) and the National Child Abuse and Neglect Data System (NCANDS). Though not evaluated in this text, key resources for crime data internationally include the European Sourcebook of Crime and Criminal Justice Statistics ( 2006 ) and the International Crime Victimization Survey ( Van Dijk, Van Kesteren, & Smit, 2008 ).

Criminal Justice Data Sources In the 1920s, the government began to measure and track crime trends on a federal level for the first time through the UCR. The UCR is compiled annually by the Federal Bureau of Investigation (FBI) and contains information provided by nearly 17,000 local police departments ( Grant & Terry, 2011 ). The local police agencies or state agencies give their arrest data to the FBI on a voluntary basis, and the FBI then tabulates the data on a national level. Despite its voluntary nature, there is a 97 percent compliance rate among police agencies.

The UCR consists of two sections: Part I and Part II offenses. Part I offenses, which are also called index offenses, are divided into categories of violent and property offenses, of which there are four each. The four violent offenses are murder (and nonnegligent manslaughter), forcible rape, robbery, and aggravated assault, and the four property offenses are burglary, larceny-theft, motor vehicle theft, and arson. Part II offenses consist of all other offenses, including simple assaults, other sexual offenses, forgery, fraud, vandalism, embezzlement, vice crimes such as gambling and prostitution, weapons violations, alcohol and drug violations, and curfew violations.

The UCR is used to determine the crime rate in the United States and in local jurisdictions. In order to compute the crime rate, you take the number of total reported crimes, divide by the total population of the reporting area, and multiply by 100,000. The most significant strength of the UCR is its reliability; it measures crimes using the same definitions every year and across all jurisdictions. Therefore, it allows jurisdictions to understand how their crime rates change each year and how they compare to crime rates in other jurisdictions, even those with different populations (for example, rural and urban areas).

Unfortunately, the UCR has several weaknesses. Most significantly, crime is underreported, and this measures only the number of crimes that are reported and cleared by arrest or exceptional means. Since sexual offenses are the least-reported crimes, the UCR is not necessarily a valid measure of sexual offense statistics. A second weakness with the UCR is that it follows the “hierarchy rule,” meaning that it compiles data only on the most serious offenses if multiple offenses are committed at one time. In other words, if a person breaks into a house, rapes the occupant, murders her, and steals her car, only the murder will be counted in the UCR. A third weakness of the UCR is that it uses one definition for each crime, yet the definitions of crimes vary by jurisdiction. This is particularly troublesome for sexual offenses, as the UCR defines forcible rape as “the carnal knowledge of a female forcibly and against her will. Attempts or assaults to commit rape by force or threat of force are also included; however, statutory rape (without force) and other sex offenses are excluded” ( Uniform Crime Report, 2009 ). Thus, the UCR is beneficial in giving us a comparison of statistics on the forcible rape of women by men, but not other sexual offenses. These are complied into the broad category of “sexual offenses” in Part II crimes, defined as “Statutory rape and offenses against chastity, common decency, morals, and the like. Attempts are included” ( Uniform Crime Report, 2009 ).

Despite its weaknesses, the UCR remains the best source of official statistics for crimes. According to the Uniform Crime Report ( 2009 ), the rate of forcible rape was estimated at 56.6 rapes per 100,000 people, a 3.4 percent decrease from 2008. Rapes by force accounted for 93 percent of the reported rapes in 2009, whereas attempts or assaults to commit rape accounted for 7 percent. The forcible rape rate decreased 10.4 percent from 2000.

In an effort to improve the compilation and reporting of crime data, the FBI devised the NIBRS database in 1989. NIBRS is an incident-based reporting system, and as such allows for the calculation of multiple offenses, multiple victims, multiple offenders, and multiple arrests within a single incident. It still has flaws, however. Currently, police departments representing only 17 percent of the population submit data to NIBRS. Also, like the UCR, the NIBRS relies on reported offenses. However, it does eliminate the hierarchy rule by counting all offenses in each incident. It is also beneficial in that it collects detailed data on the offenders, victims, locations, properties, and arrests on each single crime incident, thus offering insight into offenses not currently available with the UCR.

Victimization Surveys Victimization surveys provide valuable information on the extent of sexual abuse. The NCVS, in particular, is the largest and most significant national survey in the United States and is central to our understanding of the “dark figure” of crime, or the extent to which crimes are underreported.

In order to better understand the magnitude of the underreporting of crime and the reasons why it is underreported, the Bureau of Justice Statistics began conducting an annual survey of approximately 49,000 households in 1972. The survey collects self-report data on all crimes against the household and individuals in the household who are over the age of 12. The NCVS finds that crime is severely underreported, with only about 37 percent of all crimes reported to the police. It has found that crime is underreported for numerous reasons, including that the offenses were personal (particularly domestic violence and sexual offenses), the victim believes that the police will not be able to do much about catching the offender, the victim does not trust the police, the victim fears that his or her own criminal behavior (for example, drug use) would be exposed, the victim fears that his or her reputation would be damaged, and the victim thinks the perpetrator will retaliate.

Like all sources of official statistical data, however, there are some drawbacks to victimization surveys. In particular, the reliability of self-reported data is questionable, and the NCVS does not provide a way to gather victimization information from young children who may be victims of abuse. Nonetheless, victimization surveys tell us the following in regard to race and ethnicity, age, and victim-offender relationship for victims aged 12 and older ( Rennison, 2001 ; Rennison & Rand, 2003 ):

· ▪ Race and Ethnicity Though there are differences in victimization rates, there is no significant distinction between victims of sexual offenses on the basis of race and ethnicity. Whites are victims of sexual offenses at a rate of .8 per 1000 in the population, Blacks are victimized at a rate of 2.5, and those of other races are victimized at a rate of 1.2. Additionally, Hispanics were victimized at a rate of .7 per 1000. The rate of victimization for Blacks increased from 2000, when the rate was 1.2 per 1000. At the same time, the rate of victimization for Whites decreased, from 1.1 per 1000.