Dispatches from Dr. Joel Dvoskin: June 2006

Sex Offender Commitment Laws: A Response to LaFond and Winick

by Joel A. Dvoskin, Ph.D., ABPP
Diplomate in Forensic Psychology
University of Arizona College of Medicine

A May 21, 2006 OP-ED piece in The New York Times, entitled "Doing More Than Their Time," written by John Q. LaFond and Bruce Winick, makes an articulate but flawed argument against sex offender commitment laws.

First, let me say that I agreed with parts of the article, especially the observation that it makes little sense to commit, at great pubic expense, a small number of sex offenders while releasing the rest with little or no services, support, scrutiny, and structure. This is especially true since there is little evidence to suggest that we know how to pick the most dangerous ones, a point I will explain more fully below.

Before reading my comments, please understand that I, too, am opposed to sex offender commitment laws, and worked hard for a decade when I was in New York to fight them off. My reasons, however, were quite different. I believe that such laws protect predatory sex offenders from adequately severe sentences, which is the right societal response to the most severe crimes. Further, these laws waste enormous sums of money by pretending that crime is a mental illness. Most of the rules for mental hospitals require vast expenses (e.g., 24-hour nursing) that are not in any way related to the treatment of sex offenders. Finally, my strongest reason for opposing these laws is that they are based on the myth that raping people is a mental illness instead of a crime. This myth adds enormous stigma and steals funding from people who really are mentally ill, and who are badly underserved. People with severe depression, schizophrenia, and PTSD—many of whom have already been victimized—don't need to be associated with these criminals.

So, while I join LaFond and Winick in opposing these laws, I believe that it is a bad idea to base one's opposition on a misleading and selective research base. There is no evidence that we know who commits sexual crimes in America; all we know is who gets caught. There is no reason to believe that people get caught randomly from among all offenders. It may be true that the ones who commit the most crimes are likely to be caught, or not. It may be true that dumb ones get caught, or it may not. It may be true that psychopaths get caught more often because of their impulsivity or brazenness, or that they get caught less often because of their ability and willingness to deceive. We have no empirical basis to make pronouncements about these important questions, and we should refrain from doing so. For some reason, it is very hard for mental health professionals to admit what they don't know.

These of course are valid criticisms of sex offender commitment laws; I have never believed that the system is very good at picking who to lock up. But, in my opinion, to base your opposition upon the myth that sex offender recidivism is low is a disingenuous argument. Victim studies suggest that the difference between the number of crimes and the number of arrests and convictions is staggering.

More specifically, I wanted to take issue with one part of their column. LaFond and Winick state, "Research shows that treatment can reduce sexual recidivism." This belief, often claimed by those who get paid to provide such treatment, is not even close to a matter of consensus in the professional literature, and is based solely on those relatively few crimes that result in arrest or conviction for a sex offense. (See below.) Even if treatment can reduce recidivism, that doesn't mean that it does, or how often it does.

It is not that I do not believe that treatment might work. Nor do I argue against providing treatment to sex offenders who have been released, since they are already free and innocent people are already at risk. If it might help and it won't hurt, go for it. But it is a shaky basis upon which to recommend that someone ought to be released, as it suggests that to do so will not place the next innocent victim at risk. That does present the potential for doing harm, by increasing the time during which a sex offender is at liberty to re-offend.

While I am opposed to sex offender commitment laws for other reasons, I must be honest and tell you that in the grand scheme of things, giving a sex offender a second, third, or two hundredth chance to stop raping people is less important to me than protecting the next innocent victim.

My main objection to LaFond and Winick is their suggestion that sex offender recidivism rates are low, though they are not the first to say so. It is important to understand that all sex offender recidivism research is based solely on crimes that are officially detected. While LaFond and Winick note this truth, it is in my opinion not enough to simply acknowledge and then ignore it. It means that the outcome data of these studies systematically exclude at least the following crimes, all of which we know occur in large numbers:

1. Unreported crimes.
2. Crimes that are reported but not solved.
3. Crimes that are reported and solved, but there is insufficient evidence to prosecute the person beyond a reasonable doubt.
4. Crimes that are reported, but the perpetrator leaves town, resulting in a dropped prosecution.
5. Crimes that are reported, solved, and prosecuted, but the offender pleads guilty to a non-sexual offense, such as burglary or child endangerment. (This phenomenon, in my opinion, has likely increased since the advent of the Hendricks laws, because the stakes of a sexual offense have gone up. However, no research as yet has demonstrated this to be true.)
6. Crimes that are reported, solved, and prosecuted, but the victim backs out because of what they perceive as secondary victimization by the defense.
7. Crimes that are reported, solved and prosecuted, and the jury believes that there is clear and convincing evidence of the person's guilt, but there is reasonable doubt. A finding of not guilty is not a finding of innocence, and could be based on 90% certainty that the defendant indeed committed the crime.

Add all those up, and it is disingenuous to suggest that rates of recidivism are low. No social science researcher (so far) knows, and we should be honest and say so.

Joel A. Dvoskin, Ph.D., ABPP
Diplomate in Forensic Psychology
University of Arizona College of Medicine
President-elect, American Psychology-Law Society

© 2006 Joel A. Dvoskin. All rights reserved.

For more information about Dr. Joel A. Dvoskin, or to read more articles by this leading leading forensic psychologist, click here.