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If You Could Predict a Rape, Would You Stop It?

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For many people with elderly relatives, the joy of knowing that your family member has enjoyed a long life is often mixed with fear of what the future may bring regarding his or her health. Not to mention the fear of someone possibly harming him when he's too vulnerable to fend for himself. But very rarely do we worry about the elderly physically harming others, particularly at 100 years old. Yet when Theodore Sypnier was paroled in 2009 at the age of 100, his family so feared him that they declined any future contact with him. The reason? He was last convicted of sexually abusing multiple children at the age of 90.

Sypnier was known for using his persona as a friendly grandfather type to win the trust of young parents who then allowed him to baby sit their children, whom he later pled guilty to sodomizing. (For the record, Sypnier is not an anomaly. In 2010 a 90-year-old Australian pedophile generated headlines for abusing numerous children in Thailand.) The existence of men like Theodore Sypnier -- who had been convicted of abusing children multiple times before his conviction at 90 -- has forced our legal system to grapple with one of the most complicated moral, ethical and legal questions ever. Is it ever justifiable to incarcerate someone for a crime they MAY commit one day?

USA Today recently investigated a controversial federal program in which the U.S. Justice Department has sought to keep some of the country's most dangerous sexual predators behind bars after the conclusion of their prison sentences through what is known as civil confinement. But according to USA Today's review of 136 cases, the Justice Department has lost or dropped 61 cases while winning court approval to continue detaining just 15 predators. Part of the reason is because the criteria used to determine which perpetrators should remain detained is so complicated and contradictory it borders on ridiculous. According to the investigation:

To successfully commit a person, government attorneys have to prove three things: First that he molested a child or committed a violent sex crime; second that he has a mental disorder; and third, that his illness means he will have 'serious difficulty' refraining from new sex crimes if freed.

The investigation went on to note that among those released were those who had racked up multiple offenses against children -- but because it was determined that they couldn't be proven to definitively meet the other criteria they were set free. According to the current standards, "Past offenses alone cannot show whether someone is mentally ill or likely to commit new crimes." Only when it comes to molesting children this is patently false. Unlike selling drugs or stealing a car which are often crimes in which need (or greed) collide with opportunity, pedophilia is a crime of pathology. In other words, if someone robs a bank or sells drugs but eventually gets a better job (or wins the lottery) thus affording them the financial stability those crimes once did, they are unlikely to sell drugs again. (See Jay-Z.) But if someone is a pedophile it is because they are attracted to children. No change in circumstance has ever been proven capable of changing that. Therefore if someone has sexually abused children before, that is in fact a predictor of his likelihood of committing such a crime again, as Theodore Sypnier proves, regardless of his age. Despite this, some lawyer decided that instead of donating his services to, say, the Innocence Project, or to some defendant who actually claims to have been wrongfully convicted, that he would instead work to help Graydon Comstock fight for release from civil confinement, despite Comstock admitting to patronizing child prostitutes. Though the Supreme Court ultimately upheld the federal law allowing for civil confinement in its 2010 ruling on Comstock's case, Comstock was eventually set free. It was determined that though he admitted to abusing children he did not meet the sets of criteria for confinement mentioned above, in totality. My first reaction upon learning about civil confinement is that it would be unnecessary if our criminal justice system actually treated sex crimes, particularly crimes against children, seriously as demonstrated through sentencing perpetrators to meaningful prison time. The average perpetrator serves just 7 years. But according to Judge Leslie Crocker Snyder, sentencing guidelines are only part of the problem.

In our interview, Snyder, who founded the very first sex crimes unit in America, explained that sex crimes are more complicated to prosecute and ultimately eradicate, than other crimes. For starters, sex crimes are more likely to end up in plea bargains than other cases for a variety of reasons. For instance, if a child is the victim of a sex crime it can be tough to put a 7-year-old on the witness stand, so such a case is likely to result in a plea bargain. As a result, even if we could hand out life sentences to pedophiles, very few of them would ever serve more than a few years because most cases are being plea-bargained anyway.

Snyder explained that closing the loopholes in current law, such as addressing the statute of limitations guidelines on sex crimes (something I have written about before) is one important step. She also expressed support for measures to collect DNA from all defendants arrested, noting that it will help identify perpetrators of unsolved sex crimes more quickly and also expedite the release of those defendants who have been wrongfully arrested. Of course, measures like this are only effective when DNA evidence is processed in a timely manner and in many major cities it is not. (Read more about the DNA backlog and how you can help, here.) She added that perhaps the most important improvement necessary for the current system to work is to allocate greater resources to make these solutions feasible to implement nationwide.

Snyder added that, "The whole concept of our criminal justice system is you're punished for the crime you commit." But, "Keeping someone civilly confined is highly appropriate if all appropriate safeguards are in place and due process rights are enforced."

So far the government has not always done a stellar job of exercising such safeguards, with some perpetrators waiting more than a year for a hearing to determine whether or not they meet the criteria for civil confinement. But since the criteria is nearly impossible to meet -- and government attorneys now know they are more likely to lose such hearings than win them -- who can blame them for trying to keep perpetrators behind bars as long as possible through any means necessary?

Now there are those of you reading this who may consider this a basic civil liberties and civil rights issue. I agree. I believe adamantly that we all have a basic right to keep our children safe. There are those of you reading this who may argue that protecting all of our civil liberties means protecting the rights of the Thomas Sypniers of the world. I happen not to agree. If keeping him, or someone like him incarcerated indefinitely, saves one child from abuse, I'm okay with that and I'll sleep just fine at night.

I think the bigger question is how those who oppose such measures, and have worked to make such measures nearly unenforceable, will sleep when one of the men the Justice Department was forced to let go, assaults someone else. Because it's not a question of if, but a question of when.

Click here to see how you can close some of the loopholes in our laws that aid sexual predators.

Keli Goff is the author of The GQ Candidate and a Contributing Editor to Loop21.com where this post originally appeared.