Did the Economist Do Sex Crime Victims Justice?

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
work.

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
testify.

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
sexual assault.

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
victim.

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.

 

Follow Robin Sax on Twitter: www.twitter.com/robinsax

Comments

[viktorhaas]

I think Ms. Sax is basically plugging her new book by using her experiences as a DA and the current anti-sex offender band wagon to make money off of it. But her view is very American in the sense action is taken out of emotion rather than analyzing the problem and finding appropriate solutions. Remember that America is a shoot first ask questions later society.

[disgusted777]

Continued from my other post...

Between the state and the media you'll destroy people like me's life by painting me the same as the real pedophiles who only make up a small percentage of the registry. Every night on mainstream media news you sick the disgusting acts some pedophile did to a child and the word sex offender and then every one deemed a sex offender is the same as this person.

Then you worked for the powers that be and you want things instituted that are completely unconstitutional. Makes perfect sense. It's coming to a point in the United States where everyone will know at least one person on that registry. I just feel bad that it has taken the destroying of peoples lives like mine to bring it to this point.

God Bless...

[disgusted777]

Continued from my other post....

He narrowly avoids losing his job of 5 years because of a new law instituted that the employer is now to be put on the website, and what company wants to contend with that. This guy has been on the registry in his life almost as long as he has not. His life has been completely ruined with humiliation. He has no self esteem left. He only mows his lawn when the people and kids are at school and work on his day off on Mondays early in the morning. His whole company of over a thousand people know about him being a sex offender. Even when he gets off of having to register, the person who he was has been completely destroyed, and everyone still knows he was a registered sex offender.

I was not or am I ugly, I was just a real shy kid when I was a teenager. I only go to church in the big mega churches so nobody will remember me from week to week, and I can just sneak in and sneak out. Heaven forbid being in a small church and the parents who you see hugging and loving their children find out you are registered, and your church home looks at you like a monster.

[disgusted777]

Wow how disgusting. Spoken like a true DA. Let me tell you a little story. It's about a guy who hadn't even been 19 for a month. He met this girl because she was already doing it with his friend, and had already been with several other guys. He ended up getting in trouble behind her, and while he was in jail fighting the case with a court appointed lawyer, this girl got pregnant by someone else. The parents dropped the charges when the girl pleaded with them too, and the state picked them back up. He and the girl were 4 years and 37 days apart, and this guy was a virgin when he met her They were threatening this guy that he would do 20 years if he did not sign a plea bargain for probation. Hmmm I wonder what he was thinking when he looked at his court appointed lawyer.

This guy gets out on probation and has to contend with outpatient treatment, sex offender therapy, ridiculous community service that is unlike any other probated community service, ridiculous fines, polygraph tests, and many other obstacles such as employment and housing. Thankfully his probation officer and the lady who he registers with aretelling him he was just one of those people who basically got screwed by the system and thrown into the melting pot with all the real dangerous predators, and treat him the minimum amount of scrutiny for that.

[Cherry Simpson]

I feel great rage that the misogynist legal system does little to protect the innocent.

No society systematically traffics men as men for sex, rapes men at will and with impunity, forces men to reproduce, batters men in homes, sometimes to death, on an everyday basis, pays men less than women or presents male sexuality in demeaning ways for entertainment and profit on a large scale.

The issue of plea bargaining sex offenses down to non-sex offenses is also very pervasive and needs to be addressed.

Anyone who wants to stop something can not ignore law's ability to do nothing while looking like it is doing something.

I appreciate you open and honest response to a very troubling perspective on sexual criminal assault. I am not surprised by the responses you've received but I am disappointed.

Keep up the good work, I love your honest opinions and good advice.

PS I LOVED your book and love seeing you on TV

[AnnieR1]

One injustice in the system doesn't excuse another injustice in the system. No one is saying to give pedophiles and rapists a break. Punishment should fit the crime. It makes no sense to treat young people like perverts when they've done no more than what young people always have and always will do. A 19-year-old kid consensually touching a 16-year-old girlfriend is no danger to the community. It makes more sense to focus on the truly dangerous rather than ruin the lives of thousands and thousands and thousands of young people to no purpose.

[Therealargument]

If you don't believe men are exploited sexually on a regular basis you have obviously never heard of the thing called the American prison system. As for that comment about how people are allowed to plea down sex offenses I have never heard such a wild tale in all my life.

[onechef]

Actually the majority of these cases are 'pled down'. Because all these self serving Judges are willing to risk their cushy jobs to be nice to sex offenders?

NO.

It's because there is NO EVIDENCE to support the accusation, and they are going to be railroaded anyway.

Check out any attorney's site, from any site, regarding false accusations, and find out what you are facing. --Currently NO physical evidence is needed to convict, virginal rape victims now abound in this country. You are no longer allowed to face your accuser - it's TOO TRAUMATIC FOR THEM. Of course, it's also pretty traumatic to lie about someone in court if you have to look at them.

Best of all :YOU ARE GUILTY UNLESS YOU CAN PROVE INNCCENCE. Try proving THAT one with rape shield and the 'new' physical evidence turths(re Virginal rape victim).

Yes, we know - boys are BAD girls are GOOD. So it's OK.

[AnnieR1]

http://forensicpsychologist.blogspot.com/

Good info for those who want to learn.

[Benoliwal]

I read all the post here and did not find one that was mean spirited or venomous. It is apparent from your responses that you really don't have any idea what the others are speaking about, and the great harm that blanket sex offender laws have done.

Your responses lack insight and depth of understanding of what is, across these United States, pinpointing your little prosecutorial world as a nexus for indifference and a rather hateful way of thinking. You may be a fine prosecutor, but your answers to the comments suggest a narrow mindedness that is very common. Now, I am not saying these words to inflict injury, but your answers produce the result of narrow mindedness that we see.

Most sex offender laws are unjust, but as we have seen in times past especially during the days before the civil rights breakout, the judicial systems, law enforcement, the legislative systems, and the mayors and other town leaders in certain areas of the United States, and indeed the United States as a whole condoned inhuman laws, and justified them so as to continue their inhumanity to man.

More and more people just as in the days of the civil rights are coming out of the shadows to decry the insanity and the in-humanness being exacted upon so call perpetrators and the innocent alike. When laws force judges to treat crimes nearly all the same as far as punishment is concerned, again injustice bellows out loud. Can you hear?

[olddognewtrick]

Professional Juries? No Double Jeopardy? Probably need to get rid of that Leftie leaning constitution also.

[missingthepoint]

I read the article in The Economist and your response didn't address the point of their article. Your response focused on prosecutorial procedure of an alleged perpetrator of a sex offense. The Economist article was pertaining to the post conviction treatment of sex offenders who have completed their sentences and how all the sex offender laws being passed in the name of preventing recidivism doesn't work. The last portion of the article made the most sense.
"Human Rights Watch urges America to scale back its sex-offender registries. Those convicted of minor, non-violent offences should not be required to register, says Ms Tofte. Nor should juveniles. Sex offenders should be individually assessed, and only those judged likely to rape someone or abuse a child should be registered. Such decisions should be regularly reviewed and offenders who are rehabilitated (or who grow too old to reoffend) should be removed from the registry. The information on sex-offender registries should be held by the police, not published online, says Ms Tofte, and released “on a need-to-know basis”. Blanket bans on all sex offenders living and working in certain areas should be abolished. Instead, it makes sense for the most dangerous offenders sometimes to face tailored restrictions as a condition of parole.
That package of reforms would bring America in line with the strictest laws in other rich countries. But few politicians would have the courage to back it".

[AnnieR1]

http://www.salem-news.com/articles/august182006/silly_sex_laws_81806.php

Wonder what Ms. Sax would make of these cases. Three separate cases where married couples had sex in their cars in remote areas where no one saw them except the patroling police. The men are listed on the registry and separated from their children.

[onechef]

Notice the MEN are listed, but the women are not...

[Slaute]

The real tragedy is that a growing number of District Attorneys are prosecuting cases with insane legal outcomes, especially in alleged juvenile consensual sex cases.

You may find this difficult to believe, but there are kids as young as 10 on the sex offender registry for “playing doctor” no violence involved. Kids as young as 12 for pinching another kid on the butt just joking around, and a long list of teens and young men for “consensual sexual activity” as a result of girls who lied about their age and sought out sexual activity. And men for public urination on the golf course; how many men will this one put on the list. THIS IS INSANITY!!

How many people, including kids as young as 14, will we allow to be incarcerated, subjected to barbaric and abusive treatment (see Plethysmographs, Masturbatory Satiation, Arousal Reconditioning, Cognitive Restructuring of juveniles) and then forced to register as Sex Offenders for the rest of their lives before we bring an end to this insanity?

The current legislation has seriously failed the true victims of violent sexual assault crimes and their families! It has resulted in what I believe were unintended consequences for potentially >95% of all youth and young adults who statistically could now be convicted as sex offenders.

THIS INSANITY MUST BE STOPPED!

[BillAaron]

One of the best reforms in the prosecution of Sexual Assault case that Robin advocates is to use "Professional Juries". Juries do some crazy things when they hear the evidence against a pedophile...They also sometimes let a smooth talking defense lawyer do their thinking.

www.schoolvolunteerbackgroundcheck.blogspot.com

Case in point is a man that assaults young boys in Texas in 1989. The man even admits his crime to the Chief of police in Borger, Texas. Without a child willing to testify at trial, the Texas DA sends him to superficial counseling and his company transfers him to Liberal, Kansas.

In 2002 allegations surface in Kansas. This time there is a trial. Prior bad acts were admitted as evidence. A 27 year old man testifies when he was 11 years old that the accused took him to a remote location and masturbated him. The Liberal Kansas High school wrestling coach testifies as a defense witness

He get off because the jury did not see the nude massages of the boys as sexual touching. Read the transcripts on the website and then ask youselves if we ought to change our approach to sexual assault cases

[AnnieR1]

Just who would these professional jurists be, and who would choose them? What are the qualifications? What about the right to a jury of your peers? While the jury system isn't perfect, it does require both sides to present a convincing case. Would the prosecution's case not have to be so convincing under Sax's recommendation?

[redsongia]

"Liberal" Kansas was the first state to institute civil commitment for sex offenders whose prison sentence was all served out, but after the fact, not deemed long enough.

Child sexual abuse cases pose unique challenges to the criminal justice system, so before you start slinging the word "liberal" around and come up with one particular anecdote of abuse from 1989, when the justice system was NOT recognizing these problems as well as it does today, you should at least get your facts straight.

[BillAaron]

I don't know how to politely say this. You missed the point. Liberal, Kansas is the name of the town. It's zip code is 67901. What are the facts that you say that I don't have straight?

[sbgskl]

Robin, in university style debate, there's something called "clash" that lies at the heart of arguments. When one side says "X happened, which is why we must change Y," the opposition must mention "X did happen, but changing Y won't fix that," or "X didn't happen," or "X happened, and that's ok." The debating sides must actually tackle the same body of evidence but with disagreeing plans or interpretations. If they ignore the attacks of the opposing side, there is no clash and the debate is fruitless.

You've said that unjust sex offender punishments don't occur; according to the Economist article, they do. The Economist cites specific evidence of this. You've ignored their specific complaints and have taken a general view against theirs, but you haven't actually said why they're wrong. Is the Economist fabricating its cases? Did the events transcribe differently from what the Economist claims? These questions you must answer if you're to provide a convincing argument. At the moment, your article sounds heavy on the "This is so horrible!" (the appeal to emotion logical fallacy), but offers scant reasoning as to why the Economist is wrong.

[S1m0n]

Every era has special categories of crime that it feels are the worst ever, and which serve as the locus of fervour and hysteria within that culture. Rarely do subsequent eras feel the same excitement about that crime.

The combination of sex+children begets ours.

Older perils like witchcraft or heresy, communism or lèse majesté, sodomy and divorce are all seen very differently in our era than they were in an earlier, but every one of these examples was once seen as the people of our day now see some of the crimes Ms Sax now prosecutes.

Nonetheless, I'm a creature of my time; I feel the same horror, at least some of the time (the 17 year old blowing her 15 year old boyfriend example in the economist bethers me not a bit), but i'm historically aware enough to know that the people horrified by bigamy or apostasy felt the same, and I'm certain that they were wrong.

[StylistRSO]

Robin'
I must thank you for being so, well lacking in compassion. If there are 672,000 registered sex offenders then there are more than 5 times that amount (and growing) of victims effected as family members and friends to sex offenders. We my dear are growing. Even your hair stylist might be one. I call it unlike the courts say, "very much punitive" to have to register. In fact it's a life sentence with conditions. You never hear them call it ex-sex offenders for the registry.

How can any RSO not re-offend? Is the best question to asked. Think about it. To be a good parent you can't go to your kids school, there baseball game, or even a library.