It's not often when an article from The Economist screams, "Robin, you need to read me." But it happened on August 6, 2009 when I read America's Unjust Sex Laws with the stringer, "An ever harsher approach is doing more harm than good, but it is being copied around the world."
When I finished this article, my first feeling was shock. Clearly whoever wrote this article was a journalist and not a therapist, social worker, prosecutor, judge, and obviously not a politician. Nor did the writer live in the trenches of child sexual assault, as I have. Not wanting to rush to judgment, and agreeing/conceding some of the points presented, I decided to wait a few days to form any firm opinions on the article. Now that three days have passed, my nagging concerns have not subsided and I must address some of the issues I have with this article.
First of all, child sexual assault is a disgusting issue -- we all can agree on that. But what most people don't realize is that far more often the misuse or abuse of sex laws lies with the enormous number of cases that do not get prosecuted -- or even filed!
This occurs because the cases may not have qualified legally: there may have been lack of corroboration, lack of sufficient evidence, or dueling viewpoints ("he said/she said)." Sometimes, too, the perpetrator was so crafty in his abuse and so skilled, he ensured that corroboration would not be possible. Other times, there was a delay in the disclosure.
If anything should be explored about the state of the law relating to sex offenders, it's the huge issue of a lack of prosecution, rather than too much of it!
As a sex crimes prosecutor for the Los Angeles District Attorney's office, I always took into account the age, and the age difference, between a victim and a perpetrator. I never treated cases the same (as this article suggests is the common practice). And I can tell you that prosecutors around the country are using the same practices I used.
For example, a person over 18 who had sex with a 10-year-old will be prosecuted differently than an 18-year-old having sex with a 15-year-old. Something in your gut tells you that this is a different situation, and the law treats it differently as well.
In a case with only a three-year age difference and where the perpetrator is an otherwise upstanding member of society, there is no way that a first-time young "perp" would have to register as a sex offender for life. On the other hand, a 40-year -old having sex with a 15-year-old would be eligible for registration for life - and with good reason!
There was one point that I did agree with in the article:
The fact that kids engaging in "sexting" (kids who send nude or half naked photos of themselves over text messages) are being treated as sex offenders is not in the spirit of the law created to protect kids. The "sexting" phenomenon is an extension of children being curious during their sexual development.
Don't get me wrong, I'm not condoning the behavior. However, a teenager sending a photo of herself to another teenager cannot be said to be sending commercial porn. Furthermore, making those kids register as sex offenders would be far too harsh an approach and would have a life-ruining effect that we want to avoid.
The spirit of the article suggests that we need reform and as you can see, I agree--reform is necessary! But the biggest reform needs to be in how we judge sex crimes against children and particularly victims. Sex crimes should be treated as the heinous crimes they are.
Sex offender registries should be very specific as to who the perpetrators are and what crimes got them on the list to begin with. However, before we start protecting the offenders, it's time we stood up for the victims.
We need to realize that sexual assault does exist---in frighteningly huge numbers. And later, victims get re-victimized on the stand, and here, reform is also badly needed. But as we think about reform, let's first put our attention on the following areas first (For my reasoning and rationale, you will need to read my newest book It Happens Everyday: Inside the Life of A Sex Crimes DA):
1. There should be mandatory sentencing schemes in all jurisdictions.
2. We need utilize professional juries in sexual assault cases.
3. There needs to be better supervision of registered sex offenders.
4. Money and time should be available to train professionals in this field. This
includes all the agencies involved, including law enforcement, prosecutors,
advocates, therapists, judges, probation, and parole officers. Besides being current
on the latest advances in this area, including the laws, studies show that training
and resources prevent burnout and inspire and motivate people in this line of
5. Specific courts should be designated and designed for child sexual assault (and child
abuse) cases so they are 100% devoted to the needs and realities of kids who
This system can be modeled after the drug courts. These are in place in many
jurisdictions where specific courts are devoted to drug addicts and focus on
treatment as opposed to punishment. The courts work with defendants to address
their issues and are sensitive to the needs of addicts.
6. There should be limits to an attorney's ability to cross-examine and badger
kids. One of the guarantees of our Constitution is that criminal defendants have the
right to confront and cross-examine the witnesses against them. However, it often
seems that our criminal justice system offers greater protection to the accused than
to the child victim involved in a sexual abuse prosecution.
7. Closed-circuit TV should be allowed more readily than presently used.
8. Currently, admissibility of expert testimony requires the prosecutor to jump through a
number of legal hoops. And even when admitted, the admissibility tends to be for
extremely limited purposes. Expert testimony should be welcomed and encouraged
(from both sides) in order to assist jurors in understanding the unique issues of child
9. Defense attorneys should be as sensitive "true believers" about victims as they
are about their own clients. There must be legislation to stop re-victimizing the victim
during the court process and to cease casting blame on the victim for being a crime
10. Continuing a child sexual assault case for a prolonged period should be
discouraged. Currently, the speediest cases are tried in roughly a
year from the date they were filed (but not necessarily reported). Unlike fine
wine, an aging case never gets better for the prosecution as time goes by.
In fact, cases involving children should go to trial as soon as possible and definitely no
later than six months from the filing. This is not only better for the pleading of the
case, but is critical to the victim's healing process.
11. As an alternative to jail and/or prison there should be live-in/lock-down facilities
intended specifically for working with, treating and studying sex offenders. Like drug
rehabilitation, there should be facilities where we can take a low-level sex offender off
the street to ensure the safety of the public and treat him or her (if possible) or at least
learn from the offender.
12. There should be amendments to the rule against double jeopardy (which means you
can't be tried twice for the same offense) to enable the re-opening of proceedings
against acquitted defendants where there is compelling new evidence. This will apply
to a range of grave offenses, including those involving serious sexual offenses.
13. Defendants currently have a right to represent themselves (called pro per).
There should be a total ban, or at least limitations, on what a child sexual assault
defendant should be allowed to do in the criminal process. For example, he should
not be able to personally conduct a direct or cross- examination of the complaining
child witnesses against him. He should not be able to access all the discovery
information that a defense attorney (an officer of the court) would normally receive,
such as the victims' school records, rape exam photos, and other confidential records.
14. If a case is appealed after a conviction, it may take two or three years before a court
determines if the defendant is entitled to a new trial. If the defendant is granted a new
trial, the prosecution would need to bring the victim in to testify again. The new or old
testimony could then be used as inconsistencies, thus casting doubt on the victim's
credibility. If the cause for appeal has nothing to do with the victim's testimony, the
victim should not be made to come to court again and the entire prior testimony
should be stipulated as accurate and complete.
So, there you have it. I have finally fleshed out my response to the article that gave me so much angst.
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