Friday, August 18, 2017

Race, culture, community and abuse

By Kieran McCartan, PhD, & David Prescott, LICSW


Abuse is abuse, regardless of who perpetrates it. Sexual abuse is perpetrated by people, either individually or collectively; it is not committed by cultures, races or communities as a whole. As we know, the majority of sexual abuse is contextual and situational, which means that cultures, races or communities may believe that some forms of sexual abuse is acceptable, that it may go unpunished or can be covered up. Examples of this are evident from the practices of certain indigenous cultures to the secrecy of activities within some religious sects, to the culture of silence within some university sports teams. This may mean that certain groupings of people (whether they be communities of a certain race, culture, or combination of the two) may be more prone to sexual abuse that receives little or no response from the wider community. However, it does not mean all of the larger culture, race or community will engage in or condone the abuse.

In England over the last couple of years we have started to see the emergence of gangs of ethnic minority men, mainly Asian, organising and perpetrating the sexual abuse of vulnerable young white girls (in Rotherman, Peterborough, Newcastle and other locations). The problem is that, like all sexual abuse, this is not new; ethnic- and gender-based violence has occurred as long as there has been gender and ethnicity. What is new is the size and scope of the abuse, and the factors that capture the attention of the majority culture. Clearly, we have we not done enough to prevent, educate and prosecute individuals and communities around sexual abuse. There is an argument that a perfect storm of political correctness, fear of reprisal and a dissolving of intra as well inter community relations has resulted in these cases not being prosecuted as they should (The independent).This is unfortunate, as waves of sexual violence such as these have occurred elsewhere in human history (e.g., the sexual assault of women in times of war and its aftermath).

The cases in the UK have been reported on as a race issue with male, ethnic minority men sexually abusing white, working class, vulnerable white girls. This has fuelled conversations about immigration and race relations, thereby making an already complicated issue even more loaded. Which has resulted in a number or articles and think pieces, each of varying degrees of nuance and rigour, from journalists (The independent) and political leaders (Sarah Champion MP; Sajid Javid MP; Jeremy Corbyn MP) weighing in on the debate. However, the real issue here is that this was targeted grooming of children by adults who happened not to be white against victims who were white. The same offences and behaviours are happening in white communities as we write this.

We would argue that overarching race and cultural issues are not precursors to sexual abuse, especially child sexual abuse. Instead, abuse-related and problematic sub-cultural factors (and the processes underlying them) can indeed contribute to abuse. Sexual and social deviance does not adhere to cultural, ethnic, or national boundaries. What we are seeing in these cases are people who sexually abuse children because they want to, regardless of their own race or culture. The fact that the victims are white and of a different cultural heritage speaks more to elements of criminality than over-arching cultural themes. These people are making a decision to sexually abuse across race and cultural lines, why? Is it because vulnerable white girls are easier for them to get access to, is it because they don’t want to offender against their own culture or race, or is it simply access to any child?

The race or the culture of a perpetrator of sexual harm should play no role, positivity or negatively, in formal responses to abuse. Those who abuse should receive the same prosecution, as well as treatment and rehabilitation opportunities. Interestingly, research by Professor Malcolm Cowburn over the past 20 years shows that ethnic minority communities are less likely to engage with treatment (especially sex offender treatment), arguing that it does not speak to their cultural needs. We need to get better – a lot better – at understanding that the issues that race and culture throw up, as well as how these can be better navigated in treatment. However, a part of this this improvement invites a reflection: how many of these cultural and race issues are real, tangible issues and how many are our own cognitive distortions that serve to prevent engagement?

In terms of the direction that the field of sexual harm is moving – towards a combined model of prevention/rehabilitation, we need to do more to engage with all communities on understanding, preventing and responding to sexual abuse. We need to work more effectively and openly with all races, cultures and communities to see how we can adapt our messages around sexual abuse, so that we can better prevent it. Sexual abuse is an interpersonal offence, its committed by people and therefore has to be prevented by people of all races, cultures and communities.

Tuesday, August 8, 2017

US Supreme Court to Decide Karsjens v. Piper: Part 2 of 2

Note to Readers:  The US Supreme Court has been asked to review Karsjens v. Piper, the federal lawsuit originating at the Minnesota Sex Offender Program.  The Court’s decision to accept or reject the appeal (either way) will reshape sexual offender civil commitment in the US.  Since June, four amicus briefs were filed to try to persuade justices to accept the case.  Summaries herein are largely excerpts, with links to the entire briefs.  For a review of the briefs, what’s at stake, and why SAJRT Blogger, Jon Brandt believes the Supreme Court will accept the appeal, this blog has been split into two parts.  Part 1 was published last week.  This is Part 2. - Kieran 

By Jon Brandt, MSW, LICSW

ATSA has filed amicus briefs in many important court cases, and some have been cited by the Supreme Court (SCOTUS).  ATSA members are likely to recognize the mission-driven arguments crafted mostly by President Mike Miner and Executive Director, Maia Christopher.   “Granting review here is necessary to take account of important advances in the empirical study of (1) rates of recidivism among sexual offenders, (2) effective assessment, treatment, and management of sexual offenders, and (3) factors that influence the effectiveness of treatment interventions.  It is a central tenet of mental health care that psychiatric treatment of individuals facing involuntary hospitalization must be provided in the least restrictive environment in which such individuals can safely and effectively be provided services.”

“As this Court has recognized, the extent to which a state policy furthers a legislative objective (under any standard of review) is an empirical question. This Court’s past decisions examining sexual offender legislation have, unfortunately, relied on sources that derived their information from public discourse – not from the empirical literature. Unfortunately, discourse regarding sex offender management and treatment has often been dominated by fear and misinformation and not by accumulating empirical evidence.  Careful and impartial review of the empirical evidence in constitutional decision-making is essential in discharging this Court’s solemn duty to review legislation imposing special disabilities upon disfavored groups, and crucial in standing guard against the kind of ‘class or caste’ treatment that the Fourteenth Amendment was designed to abolish.”


The Fair Punishment Project (FPP) is a joint project of the Charles Hamilton Houston Institute for Race and Justice and the Criminal Justice Institute, both at Harvard Law School.  The FPP brief was joined by four criminology scholars.  “The right to be free from confinement is ‘of the very essence of a scheme of ordered liberty.’ It forms the basis of other rights deemed fundamental in this country… and it prevents this nation from devolving into tyranny. The government must tread lightly when it intrudes on that freedom, enacting safeguards to prevent it from overreaching.  When republican institutions pass laws in response to moral panics and popular passions, with little thought, deliberation, and scrutiny, the rights of the most vulnerable and unpopular suffer. When ‘prejudice’ against unpopular groups curtails the operation of those political processes ordinarily to be relied upon to protect minorities, more searching judicial inquiry is required.”
“Moral panics have recurred in the history of our democratic republic, and they have led to some of the greatest infringements on fundamental rights and enormous national embarrassments. Most famously, just weeks after Pearl Harbor, public opinion demanded the removal of all Japanese Americans from the west coast; Japanese internment followed. Fear of Soviet aggression lead to McCarthyism and the Red Scare. Fear over same-sex marriage led to the passage of thirteen referenda barring same-sex marriage. Courts have both the authority and the duty to intervene in cases where popular passions lead legislatures to infringe on the ‘fundamental rights and liberties’ that are deeply rooted in this Nation’s history and tradition.   Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society’s demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life.  This case cries out for judicial intervention.”

Commentary
“There is broad consensus that the current system of civil commitment of sex offenders in Minnesota captures too many people and keeps many of them too long.”  These are the words of the Honorable Eric Magnuson, former Chief Justice of the Minnesota Supreme Court, in a 2013 report to the US District Court for Minnesota.  If readers want to understand why “no one has any realistic hope of ever getting out of this ‘civil’ detention,” read Federal Judge Donovan Frank’s compelling 2015 opinion, finding SOCC in Minnesota unconstitutional.  If readers want to understand why SOCC is more about public policy than public safety, read the full 2017 amicus briefs.   
Undoubtedly, there are some dangerous individuals under SOCC, but with equal certainty, SOCC is overreaching.  SOCC is a slippery slope.  On the front end, SOCC creates a tenuous relationship between psychology and law.  On the back end, it conflates past heinous acts with future dangerousness.  Two respected New York Law School professors, Michael Perlin and Heather Ellis Cucolo, are signatories of the “Law Professor’s Amicus Brief,” and recently published a thoroughly researched book that takes aim at sexual offender policies in the US.  In Shaming the Constitution: The Detrimental Results of Sexual Violent Predator Legislation, (Temple University Press, 2017), Professors Perlin and Cucolo write, “society’s ‘solutions’ to the issues before us are all wrong… not simply ineffective, but counterproductive, failing to add to public safety while ruining lives.  Media hysteria exacerbates all of this and strangles any attempts at legislatively remediating the situation.  Forensic psychologists have demonstrated – beyond doubt – that the actuarial instruments regularly used to determine who is a ‘predator’ are fatally flawed.  Our sexual offender laws… shame and humiliate those who violate them.  In doing so… they ignore and mock the due process clause, the ex post facto clause, the double jeopardy clause, and the cruel and unusual punishment clause… they truly shame the constitution and stain the political and social fabric of our nation.”
The Appellate Court, in finding MSOP constitutional, abdicated judicial oversight for ensuring balance between public safety and civil rights.  The Eighth Circuit ruling not only approves status quo in Minnesota and other states, it affirms false claims that “sex offenders” are an intrinsically dangerous subclass of US citizens.  If SCOTUS rejects the appeal, the Eighth Circuit ruling becomes the law of the land.  Consider some conditions of SOCC, which currently exist in Minnesota, that could be extended nationwide: 
  • Detainees can be confined indefinitely under the guise of treatment because there is no constitutional right “to appropriate or effective or reasonable treatment.”
  • There is no right to the least restrictive level of confinement.
  • The threshold out of SOCC can be higher than the threshold in.
  • Detainees can be confined for years without evaluations to ensure criteria for confinement.
  • There is no affirmative duty for the state to release detainees who are no longer dangerous.
  • The burden of eligibility/application for reduction of custody can be placed on detainees.
  • Executive orders can broadly block discharges.
  • Violations of civil rights are not unconstitutional unless such violations “shock the conscience.”  
In Minnesota and several other states, there are many detainees who, by consensus among professionals, could be safely released (conditionally or unconditionally) to the community, but they remain imprisoned for reasons that are clearly political.  Apparently, the Eighth Circuit was not moved by the prospect of “political prisoners.”  Hopefully, the Supreme Court will see Karsjens differently.
Justice Anthony Kennedy wrote in  Romer v. Evans (1996) that, “laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected [homosexuals].  If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”  In Kansas v. Hendricks (1997), Justice Kennedy warned that SOCC, in concept or practice, could unconstitutionally overreach.  Twenty years later, perhaps Justice Kennedy will be the voice that unites liberal and conservative justices to bring new guidance to SOCC in the US.
Another indication that the Supreme Court might grant certiorari (accept the appeal), and potentially reverse the Eighth Circuit, is the unanimous June 2017 SCOTUS opinion in Packingham v. North Carolina.  Applying the proper standard of legal review is at the core of Karsjens.  Judge Frank ruled that SOCC was subject to “strict scrutiny” and therefore SOCC laws must be “narrowly tailored” to achieve their purpose.  In reversing the District Court, the Appellate Court said Judge Frank should have applied a lower legal standard; that SOCC laws must bear only a “reasonable relationship” to a legitimate government interest.  However, in Packingham, Justice Kennedy wrote that the North Carolina law broadly restricting “sex offenders” from accessing the Internet was overreaching, and that such infringements on civil liberties must be “narrowly tailored.”  If justices apply the same reasoning to liberty interests under SOCC, perhaps they will agree to review Karsjens
Judge Frank, plaintiffs’ attorneys, and the amicus briefs state that the goal of Karsjens is not to strike down SOCC broadly, but rather to acknowledge the constitutional infirmities of a system that is overreaching, and restore the constitutional integrity that SCOTUS established in previous SOCC rulings.  The Eighth Circuit held that the 14th Amendment’s right to due process applies only to “fundamental liberty interests,” and that the Supreme Court “has never declared that persons who pose a significant danger to themselves or others possess a fundamental liberty interest in freedom from physical restraint.”  Well, now SCOTUS has a vehicle to fix that.  Substantive due process and fundamental liberty interests are bedrock in the history of civil rights – constitutional rights that should be inalienable for all Americans.
Much appreciation to attorneys who provided guidance for this op-ed piece.



Tuesday, August 1, 2017

US Supreme Court to Decide Karsjens v. Piper (Part 1 of 2)


Note to Readers:  The US Supreme Court has been asked to review Karsjens v. Piper, the federal lawsuit originating at the Minnesota Sex Offender Program.  The Court’s decision to accept or reject the appeal (either way) will reshape sexual offender civil commitment in the US.  Since June, four amicus briefs were filed to try to persuade justices to accept the case.  Links to the entire briefs are below.  For a review of the briefs, what’s at stake, and why SAJRT Blogger, Jon Brandt believes the Supreme Court will accept the appeal, this MSOP update has been split into two parts.  Part 2 will be published next week.  - Kieran  

By Jon Brandt, MSW, LICSW
In December 2011, when Kevin Scott Karsjens and 13 other men at the Minnesota Sex Offender Program (MSOP) filed a pro se petition with the Federal Court in Minnesota, they probably had a little hope and a lot of doubt that it would go anywhere.  Thousands of previous petitions have been tossed out of courts over 20 years, so why is Karsjens v. Piper headed to the Supreme Court (SCOTUS)?  For the same simple reason that the US District Court accepted Karsjens: an involuntary treatment program with more than 700 detainees, and exits politically blocked for two decades, is “clearly broken.” 
More than five years into Karsjens, this case is progressively more difficult to unpack, but here’s a two-paragraph review:  In early 2012, the US District Court began a careful review of MSOP.  After more than three years of investigations, and a six week trial, Federal Judge Donovan Frank released the court’s findings.  In June 2015, in a highly principled opinion, Judge Frank determined that the sexual offender civil commitment (SOCC) scheme in Minnesota was indeed broken: unconstitutional on 12 counts.  The State maintained there was nothing wrong at MSOP or with SOCC in Minnesota; that the problem was with Judge Frank’s ruling.  The US Court of Appeals agreed. 
The disparate opinions by the two courts might be explained by the District Court viewing Karsjens as primarily a civil rights case for a state institution that is “clearly broken,” while the Appellate Court viewed the case as a states’ rights matter – essentially, “if it’s broken, it’s not illegally broken.”  In June 2017, Dan Gustafson, lead attorney for the Plaintiffs (MSOP clients) filed a persuasive appeal with SCOTUS (Docket 16-1394).  In July, Defendants (State of Minnesota) filed their opposition.
So, why do I think the Supreme Court will accept the appeal?  In part, on the strength of four powerful amicus briefs by nationally recognized law professors, scholars, and respected stakeholders. The briefs vigorously attack the Eighth Circuit’s defense of status quo, describe how SOCC laws/programs conflict with both constitutional principles and case law, and take careful aim to convince justices to accept the appeal.  The authors eloquently appeal to both liberal and conservative perspectives, explain how SOCC schemes are contrary to empirical evidence, compare Karsjens with some of the ground-breaking civil rights cases in US history, and provide sound case law and strong arguments to reinstate the District Court’s determinations of “unconstitutional.”  All the briefs boldly maintain that civil regulations for “sex offenders” are rooted more in anger, fear, and moral panic, than bona fide concerns for public safety, and that SOCC is at the pinnacle of such civil regulations.  Each of the briefs take a somewhat different approach to try to persuade justices that SOCC in Minnesota (and other states) is unconstitutional, under at least the Fourteenth Amendment of the US Constitution - that no state shall deprive any person of life, liberty, or property, without due process of law.  Summaries are largely excerpts from the amicus briefs.
Led by Eric Janus, (former President and Dean of Minnesota’s Mitchell Hamline Law School), 26 legal scholars from across the US joined in this amicus brief.   Janus expressed that SCOTUS is not being asked to revisit Kansas v. Hendricks (1997), which narrowly approved SOCC in concept, but rather to uphold the constitutional principles that have been compromised by SOCC, in practice, now for 20 years.   “This case should be reviewed by the Court for three reasons: First, the Court of Appeals’ decision sharply departs from 40 years of this Court’s civil commitment jurisprudence and decisions by multiple state courts of last resort, applying strict scrutiny analysis. Second, the MSOP systematically thwarts the liberty interests of over 700 detained people in Minnesota; more than 5,000 people are deprived of their liberty under these laws nationwide. If the Court of Appeals’ rule stands, there is no remedy when States systematically abuse their civil commitment programs. Third, the rule adopted by the Court of Appeals undercuts the checks and balances to restrain governmental overreach of fundamental individual liberty.”
“There is one characteristic that always marks a genuine civil commitment scheme: the durational limit. Confinement ends just as soon as its justification ends.  The Minnesota Supreme Court approved MSOP’s scheme, “so long as the statutory discharge criteria are applied in such a way that the person subject to commitment… is confined only so long as he or she continues both to need further inpatient treatment and supervision for his sexual disorder and to pose a danger to the public.”  These are not constitutionally insignificant “rounding errors” that are the unfortunate consequence of any human endeavor. There are strong reasons to conclude that there are hundreds of people held unconstitutionally because of the design of the MSOP.  If these defects are complex and interrelated, their cumulative effect is simple and clear: Minnesota has systematically and intentionally created a confinement system, detaining more than 700 individuals, that ignores and thwarts the constitutionally required duration limitations of a bona fide civil commitment system.” 
The Cato Institute is a nonpartisan public-policy research foundation dedicated to advancing the principles of individual liberty, free markets, and limited government.  Reason Foundation is a nonpartisan public-policy think tank that advances a free society by developing and promoting libertarian principles and policies.  “The Eighth Circuit held that Petitioners have no liberty interest in freedom from physical restraint—not that their liberty interest must be balanced against the state’s interest in protecting the public from violence, but that for sex offenders, that liberty interest simply does not exist.  The MSOP’s complete failure to release any civilly committed sex offender is not simply a back-end political problem; it is a design flaw baked into the system.  Despite its stated goals, Minnesota’s treatment approach falls flat and falls hard.  By the state’s own admission, hundreds of civilly committed individuals have never received an assessment of their risk to the public.  The MSOP is aware that at least some of the people in its custody satisfy statutory discharge criteria. Sex-offender laws have bored a hole in the nation’s constitutional fabric.  As state and federal governments expand that hole - threatening to swallow other rights and others’ rights—this Court should intervene.”
Is SOCC creating “political prisoners?”  Review of the other amicus briefs and commentary, in Part 2…
Appreciation to the attorneys who provided guidance for this op-ed piece.