Monday, May 13, 2013

Human Rights and the Juvenile Registry

At a recent training, a conference participant asked whether she should recommend that a juvenile be registered as a sexual offender. “The court is asking me for a recommendation,” she said. Having read the studies in this area by Elizabeth Letourneau, President-Elect of the Association for the Treatment of Sexual Abusers, and others, there was only one conclusion I could offer: There is no support for the registry in building healthier lives or safer communities for anyone. In fact, the fleeting societal comfort experienced when registries first came into being appears to have produced no meaningful results. This is not a controversial statement: the research to date has been clear that registering sexual offenders generally—and adolescents, specifically—does not reduce their risk. In fact, the reverse may well turn out to be true. The registry makes it far more difficult to access education, employment, and housing. Knowing that the safest citizens are those who have access to these and other stabilizing resources, how can we allow these policies to continue?

Human Rights Watch, an international, non-governmental agency that researches and advocates human rights, recently examined and issued a report on the registration of juveniles who have sexually abused. Nicole Pittman was the principle investigator. From the Human Rights Watch web site:
Human Rights Watch believes that no one should be put on registries for sex offenses committed when they were children, absent a judicial determination that the specific individual in question poses a high risk of reoffending; in such cases, they should be put on registries accessible only to law enforcement, and subject to removal when registration is no longer needed. In all other cases, states and the federal government should exempt youth sex offenders from any registration, community notification, and residency requirements.

“Painting all sex offenders with the same broad brush stymies law enforcement’s attempts to focus on the most dangerous offenders and defeats what every parent knows about how children act and how they mature,” Pittman said. “Exempting youth from harsh registration laws would both respect their rights and ability to change and improve public safety.”
The report is important and timely. Professionals and lay people alike should take into account not only this report, but the context in which it has taken place. There is a recent and disturbing trend of policies coming into existence that are only barely constitutional at best. In fact, it is not the first report on sexual offender policies that Human Rights Watch has issued. In some instances, it seems that legislators create laws with full knowledge that courts will subsequently find them to be unconstitutional. For example, in March of this year, the appellate court of Maryland found that retroactive registration of adult sexual offenders violated ex post facto laws of that state’s declaration of rights. Curiously, this did not result in any significant media attention, although it followed similar decisions around the US. Likewise, in Minnesota, a recent media account found a surprising level of opposition to a law intended to improve constitutional aspects of that state’s civil commitment program by creating less restrictive treatment environments. In this instance, a former Chief Justice of the Minnesota Supreme Court had warned of the consequences of doing nothing that, “If the Legislature doesn’t do it, the federal court will.”

As an international organization, Human Rights Watch’s perspective is welcome. All too often, professionals and lay people alike can become so habituated to the status quo that we stop questioning our actions. At a time when surveys indicate that 50% of programs treating adolescents who sexually abuse employ the polygraph, Mark Chaffin (2011) reminds us that the World Medical Association states that an ethical breach could exist for health care providers by simply being present during harsh interrogations. He also suggests exploring a continuum, with clinical interview on one and waterboarding on the other, and asks readers to consider where on this continuum they believe the polygraph to be. Another recent international perspective took place when a High Court in Britain declined to extradite a sexual offender to the US because of their concern that he might be civilly committed to a program from which only two people have been provisionally discharged in 19 years. While it is easy for civil commitment, polygraph, registration, and residency restrictions to fade into the background for those living and working in the United States, it is important to remember that these are actually unusual practices by international standards. Nor is Human Rights Watch the only international non-governmental organization to examine sexual offender policy. Amnesty International has also investigated the used of compulsory anti-androgen medication in the United States and elsewhere.

Even within the United States, efforts by ATSA and other organizations to promote using the registry for juveniles only under the most extreme circumstances, if at all, have been ongoing for many years. The reasons are clear: Adolescents have a low rate of sexual re-offense, particularly when they complete treatment programs (Reitzel & Carbonell, 2006). Studies have found that when adolescents do re-offend sexually, it is much more like to occur while they are still adolescents (Caldwell, 2010). Even our attempts to classify adolescents according risk—while advancing considerably in recent years—are still only moderately predictive and are marked by variability across studies (Viljoen, Beneteau & Mordell, 2012). Ultimately, what works with adolescents are short-term, active interventions such as meaningful treatment and supervision rather than long-term, passive, and potentially destructive actions such as registration.

Getting lawmakers and the public to listen has proved a challenge. At least one study has found that lawmakers are more influenced by media accounts of sexual abuse than by the science of it (Sample & Kadleck, 2008). Although media accounts are increasingly calling into question our policies towards adolescents, Human Rights Watch reminds us of the discrepancy between our values regarding freedom and justice and what we are actually allowing to happen.

Of course, research findings are one matter, communicating them effectively is another. Rather than asking what we should do with young people who sexually abuse, professionals and stakeholders should re-cast the discussion of how we can ensure the best futures for all young people, including those who have been victimized, those who perpetrate sexual abuse, and others affected by it. Society has long had a value that parent should raise children in such a way that they can go on to properly bring up children of their own. Perhaps it’s time to discuss this value and the reality that Human Rights Watch has found. Leaving adolescents in a position where they have intense difficulty gaining education, employment, and housing because of their actions prior to entering the age of majority speaks very poorly of society.

In the end, when international non-governmental organizations are critical of our policies, and lawmakers are motivated by political survival as much or more than by the needs of all their constituents, it’s time to sit up, take notice, and re-examine all of our methods.

David S. Prescott, LICSW

Chaffin, M. (2011). The case of juvenile polygraphy as a clinical ethics dilemma. Sexual Abuse: A Journal of Research and Treatment, 23, 314-328.

Caldwell, M.C. (2010). Study characteristics and recidivism base rates in juvenile sex offender recidivism. International Journal of Offender Therapy and Comparative Criminology, 54, 197–212.

Reitzel, L.R., & Carbonell, J.L. (2006). The effectiveness of sexual offender treatment for juveniles as measured by recidivism: A meta-analysis. Sexual Abuse: A Journal of Research and Treatment, 18, 401-421.

Sample, L.L., & Kadleck, C. (2008). Sex offender laws: Legislators' accounts of the need for policy. Criminal Justice Policy Review, 19, 40-62.

Viljoen, J. L., Mordell, S., & Beneteau, J. L. (2012, February). Prediction of adolescent sexual reoffending: A meta-analysis of the J-SOAP-II, ERASOR, J-SORRAT-II, and Static-99. Law and Human Behavior. Advance online publication. doi: 10.1037/h0093938.