If the only tool you have is a hammer,
you tend to see every problem as a nail.
The recently passed Adam Walsh Child Protection & Safety Act requires the national registration of a juvenile if the individual was 14 years old or older at that time of the offense and if the offense meets the federal definition of aggravated sexual assault. This involves two main criteria: either the use of force or violence or a victim under age 12. This will create a national registry and database. Each state’s registry must be public and easily accessible. The registration will be for life, but an individual can petition for removal from the list after a lengthy period. The main assumption surrounding this policy is that this bill would substantially reduce the number of sexual offenses in this country by making individuals who have a history of offending clearly identifiable to the public. Despite efforts to exclude individuals who committed sexual offenses as juveniles, the bill ultimately included many juvenile sex offenders. The sealed juvenile record of the past, designed to allow the youth a fresh start in life, is no longer a core philosophy in the juvenile justice system. The research to guide this dramatic change of public policy for juveniles? None.
The first community notification and sexual offender registration laws came into effect in the 1990s. In the mid-1990s, Megan’s Law passed on a federal level. This law required some form of sexual offender registration and community notification. While there initially was a cautious approach to applying this law to juveniles, by 2001 over half of the states required juveniles adjudicated for a sexual offense to register (Trivits & Repucci, 2002). Due to concerns regarding the alarming trend away from protecting a juvenile’s potential for rehabilitation, the Association for the Treatment of Sexual Abuse (ATSA, 2000) published an opinion regarding community notification procedures for juveniles. This organization’s position paper on this issue states:
The Association for the Treatment of Sexual Abusers believes that juveniles should be subject to community notification procedures in only the most extreme cases….Despite the questionable public safety benefits of community notification with juveniles, it is likely to stigmatize the adolescent, fostering peer rejection, isolation, increased anger, and consequences for the juveniles family members. Until research has demonstrated the protective efficacy of notification with juveniles and explored the impact of notification on the youth, their families and the community, notification—if imposed at all for juveniles—should be done conscientiously, cautiously, and selectively.
In a review article regarding the application of community notification laws to juveniles, Trivits and Reppucci (2002) summarize the potential negative impact of this trend. Traditionally, juvenile courts have had a rehabilitative, rather than punitive, focus due to the general belief that juveniles are less culpable than adults are due to their stage of development. They also clearly articulated the concerns that while registration and community notification policies have not been demonstrated to reduce risk to the community, this public labeling has the potential to impact negatively on the potential for rehabilitation. This is particularly problematic considering research indicating that the majority of juvenile sexual offenders will not reoffend.
During the recent elections, many politicians used the “tough on sex offenders” platform to challenge their opponents. In the current political climate, it is not surprising that the United States Congress recently overwhelmingly passed the Adam Walsh Act, a bill that includes many juvenile sex offenders in a national public sex offender registration policy. Prior to the passage of the Adam Walsh Act, many groups (e.g., ATSA, APA) took action to modify this bill, particularly in reference to the inclusion of juveniles. The ATSA membership and the APA Public Interest Policy office specifically expressed concerns about the use of the label “child predator” and placing youth on the public registry for life. Many providers and experts in the field provided feedback to their legislators regarding the problems with this bill. Based on this action, there was an improvement in the language of the bill and an effort to be more discriminating in the juveniles who were placed on this bill. Unfortunately, the net has still been cast very wide and will trap many juveniles in a system that is based on public shame, punishment, and limited options for growth.
There is an increasing recognition in the criminal justice system of the concept of therapeutic jurisprudence (Winick, 1998). This concept focuses on how the law can enhance, rather than reduce, the psychological well-being of individuals involved in the legal system. This concept applies to the interactions sexual offenders experience in the legal system (Winick, 1998; Birgden & Ward, 2003). The recent legislative trend toward public juvenile sexual offender registration is in opposition to the goal of using the legal system to improve the psychological functioning of the individual, with the goal of reducing the risk for further offending. As sexual offender management and treatment moves toward a “good lives model” which includes a focus on creating positive lives, beyond simply managing risk (Ward & Stewart, 2003), public policy is increasingly moving toward a public labeling of juvenile sex offenders that will create a significant obstacle in the path toward an offense-free life.
Those of us concerned about the impact of public registry on juveniles who commit sex offenses are not “soft on crime.” Many of us are part of a large group who advocated for a public policy that reflected the seriousness of sexual offenses. This advocacy occurred during a time when our legal system largely ignored sexual victimization and often considered a private matter. We advocated for criminal responsibility and effective risk management strategies. We share a common goal of reducing the level of sexual violence in our communities.
Unfortunately, there is reason to be concerned that the current policy trends will make it harder to reach our goals. The implicit assumption of current policy trends is that publicly identifying juveniles who committed a sexual offense, regardless of their current age, is 1) meaningful in identifying a group at high risk to the community, 2) helpful in reducing the risk that the individual will commit another sexual offense, and 3) increasing the overall safety of our community. This article will directly address these assumptions and consider the high potential for harm to both the youth and the community that is present in this approach to juveniles who commit sex offenses.
Are Juvenile Sex Offenders a High Risk to the Community?
The assumption that the vast majority of juveniles who commit a sexual offense will become adult sex offenders is a common myth that is inconsistent with empirical research. Reviews of juvenile sexual offender recidivism rates have found the mean sexual recidivism rate to be 7.6 %. The range of sexual recidivism in studies has varied from 0.4 % to 18 % (Caldwell, 2006).
What do these recidivism estimates mean? Considering the average data, 92 % of people who committed sexual offenses as juveniles will be publicly labeled and suffer the negative ramifications of registry, while the research suggests they would not be charged or convicted of a sexual offense again. Of the approximately 8 % who would be known to recidivate, even a smaller portion of those individuals would have been prevented from committing a sexual offense based on the general public knowing they had committed an offense in the past. The potential to block an offense is low, but the impact for the other 92 % of the individuals is quite high. In addition, it is reasonable to hypothesize that we may actually increase the risk to reoffend by creating an unstable lifestyle and identity. This is not simply speculation; this is a hypothesis that is consistent with general psychological research.
There is research that suggests if the goal of reducing sexual violence by juvenile sex offenders is to be addressed, there is a need to address the high prevalence of sexual offending acknowledged by incoming male college students (Abbey & McAuslan, 2004; Abbey, 2005). Over 25% of these men report having committed a sexual assault after age 14 and prior to entering college. If apprehended and prosecuted, one quarter of college males would be eligible for sexual offender registry. It is reasonable to argue that resources could best be directed toward public health prevention strategies to reduce the risk of sexual offending by all adolescents during this stage of development. These males are not the image called to mind when the public considers the need to be informed of “predators” in our midst. In addition, if this juvenile offending was persistent and entrenched, we would expect the trend to continue and 25% of adult males who attended college would commit further sexual offenses during adulthood.
From a common-sense perspective, few people would argue that teenagers are the same as adults. There is now strong evidence that the brain develops well into adulthood. Research on brain development suggests that the brain is not fully mature during adolescence. In particular, adolescents are in the process of fully developing the frontal lobe region of the brain. The frontal lobe is the part of the brain that is in control of executive functions. This part of the brain regulates problem solving, impulse control, abstract reasoning, and long-term planning (Sowell, Thompson, Holmes, Jernigan & Toga, 1999) Damage to this area can result in significant behavioral and emotional deficits. Adolescents are in the process of developing this critical self-regulating portion of the brain. During this stage of development, adolescents have deficits in interpreting social cues, tend to focus on immediate reward without considering the consequences, and generally lack the capacity to manage fully negative impulses. At the same time, another significant change during adolescence is the onset of puberty. One important task during puberty is learning to manage the sexual impulses associated with these rapid physical changes. This challenge needs to be managed by youth who have not fully developed the region of the brain that facilitates the control of these impulses. These abilities improve during the process of adolescent development and the ongoing maturation process that continues into adulthood.
The article “Less Guilty by Reason of Adolescence” outlines how the uniqueness of adolescent immaturity creates a mitigating condition to consider when determining the response of the justice system to the delinquent behavior of youth (Steinberg & Scott, 2003). In addition to considering the death penalty, these authors address the broader issue of whether juveniles should receive punishment in a manner similar to adults. There is considerable research emerging in the field that emphasizes the unique biopsychosocial developmental issues present during adolescence (Steinberg & Scott, 2003). Even as cognitive capacities start to approach adult levels, juveniles often lack the psychosocial maturity needed to manage their behavior with the same level of reasoning as an adult. This suggests developmental immaturity is a mitigating factor to consider in making public policy decisions about the registration of juvenile sex offenders. This is not a new idea, but a reaffirmation of the long-standing policy in this country to treat juvenile offenders in a manner that is distinct from adult offenders due to an understanding of the future development potential of juveniles.
Does Public Registration Reduce Risk?
There is no research demonstrating that public registration of adult or juvenile offenders actually reduces the risk to reoffend. In the state of Washington, some very preliminary correlation data suggests that community notification could possibly be effective under the appropriate circumstances with adult offenders (Barnoski, 2005). The Washington State Institute for Public Policy has conducted research on the effect of community notification on adult sex offenders. The research group tracked over 8000 sex offenders released from Washington prisons before the passage of community notification statutes. Sexual recidivism was defined as a felony sex conviction in Washington committed during the five-year period after the offender was released. The felony sex recidivism rate for offenders post-1997 (when more statewide consistent notification approaches were implemented) is 5 percentage points below the 1990 rate, prior to the implementation of community notification.
Dr. Barnoski (2005) appropriately notes that this drop in recidivism cannot be causally linked to notification laws. The national and state crime rates dropped during this same period. In addition, the increased incarcerations of sex offenders are also reasonable explanations for this drop. In addition, the Washington State approach is very different from the approach suggested by the Adam Walsh Act. Washington State developed categories of risk and involved law enforcement in working with offenders of high risk and monitoring them. This is very different from simply posting an offender’s picture and offense on the internet for community members to view. It is even further from posting a juvenile only sex offender’s data on the internet. This research does provide an important step in beginning to recognize the importance of further research to determine the impact of community notification laws. It is possible that community notification may decrease risk, but there is no evidence of a causal relationship at this point. In order for a causal link to be established, there is a need for research beyond a correlation methodology. It is important to remember the basic rule that correlation does not imply causation. There is no research on samples where juveniles, or adults for that matter, have been randomly assigned to “registry” or “no registry” conditions to explore the impact of this public labeling process.
Will the Juvenile be Harmed? Will Risk Increase?
While there is no research to support a broad public registry as a means of increasing community safety, the anecdotal evidence surrounding problems with the registry approach is clear. Adults and juveniles are subject to vigilantism, violence, discrimination, and overwhelming obstacles to establishing and maintaining a non-offending lifestyle. States are implementing residency requirements that cause many offenders to become homeless, live in motels, or drop off the registry entirely. Juveniles are ostracized and banned from attending classes with their peers. They are refused admittance to certain colleges. They have difficulty finding employment. There is even the concern that publishing youths’ names on the registry may provide a public database for offenders wanting to prey sexually on juveniles.
As we increase our knowledge in the field of juvenile sexual offending, it is important to recognize also that general psychological research is also relevant. The lack of research specifically on the impact of juvenile registration does not preclude us from considering the potential impact from a scientific and theoretical perspective. In considering the potential impact of a public juvenile registry from a scientific basis, it is important to consider not only what we know about juvenile sex offenders, but also what we know about basic psychology and adolescent development. We need to look beyond the available literature on juvenile sex offenders to the broader research on delinquency and developmental and social psychology. The general psychology literature provides a foundation for considering the implication of this public policy.
Research has already demonstrated the powerful affect of labels. Beyond the importance of recognizing that labeling a juvenile as a “sexual offender” or “sexual predator” is not likely to accurately characterize who they are as adults, labels also have the potential to be harmful. A great deal of mental activity occurs automatically and without conscious awareness or intent. We have implicit attitudes and schemas for organizing information because it is an efficient means to incorporate new information. We all have both explicit and implicit stereotypes about people based on their membership in certain groups. Prejudice is the negative emotional or attitudinal response associated with those stereotypes. The label “sex offender” or “predator” evokes a stereotype and prejudicial attitude we have for people in that group. Those who work in the sex offender field may have “sex offender” schemas that include 10-year-old boys and 55-year-old CEOs, but the public is likely to have a strong negative reaction and a mental image that is inconsistent with the majority of individuals we can call “sex offenders.”
The terms “predator” and “sex offender” result in an image and are processed through both implicit and explicit schemas, stereotypes, and prejudices that both the public and the offender have regarding the meaning of these labels. Evidence suggests that one person’s expectations for another person can become a self-fulfilling prophecy (Rosenthal, 2002). This self-fulfilling prophecy theory has been well documented in a variety of settings. The basic premise of this theory is that the “The behavior expected actually came to pass because the expecter expected it” (Rosenthal, 2002, p. 847).
A well-publicized social psychology research study from 1973 is commonly referred to as the Stanford Prison Experiment (Haney & Zimbardo, 1998). This study provided important insights into the impact of labels. This study involved randomly assigning college students to guard or prisoner roles. This study needed to be stopped after six days due to the extreme distress the “prisoners” experienced in their role and the abusive and dehumanizing behavior exhibited by the “guards.” While this study provides important insights into the role of institutions on behavior, it also provides important insight into how a simple label can shape how a person is treated and behaves, and ultimately resulted in the individual acting in a manner consistent with the label they had been randomly assigned. It is easy to see how a “predator” label would influence both the offender and individuals interacting with the offender.
Once a label is applied to an individual, there is a tendency to engage in what researchers describe as a “confirmatory bias” (Festinger, 1957; Frey, 1986; Jonas, Schulz-Hardt, Frey, & Thelen, 2001). We have a strong tendency to fail to consider information that disconfirms a theory, and seek out and overvalue information that confirms it. Once someone has a negative label, there is a tendency to pay attention to information that confirms this label and discount signs of change. While not conscious of this, we tend to use confirmation biases to maintain our stereotypes.
Considering the general psychological research, this trend toward labeling juveniles is very alarming. The mental health field has long recognized the importance of caution in applying labels to individuals, particularly in the case of juveniles. The placement of a juvenile on the sexual offender registry implies a sexual disorder and risk for further sexual offending. The DSM-IV recognizes the need for caution in applying the diagnosis of Pedophilia (American Psychiatric Association, 1994). A diagnosis of Pedophilia requires that the person is a least 16 years of age and at least five years older than the child or children whom they are having sexual fantasies, urges, or behaviors. The manual specifically states that this diagnostic category should not include an individual in late adolescence involved in an ongoing sexual relationship with a 12- or 13-year-old. A Paraphilia diagnosis is considered a lifelong condition and is inappropriately applied if it has not been found to exist into the late teen and adult years.
An interesting finding regarding the distinction between adolescents and adults in this area is found in the research by Gretton, McBride, Hare, O’Shaughnessy, and Kumka (2001). Research on adult sexual offenders (Rice & Harris, 1997) has found a high rate of sexual recidivism for adults presenting with a combination of a high degree of psychopathy (>25) and deviant sexual preferences as measured by the penile plethysmograph (PPG). The theory explaining this finding is that the individual is both sexually deviant and does not care about how they may harm others by acting on these interests. It would seem likely that this relationship would hold for juvenile offenders as well. Surprisingly, research by Gretton et al (2001) does not support this conclusion. They studied 220 adolescent males to assess the relationship between a high score on the youth version of Hare Psychopathy Checklist and deviant sexual preferences on the PPG. This research measured actual preferences for deviant stimuli over non-deviant stimuli and these preferences needed to be demonstrated on the PPG. This research did not find a relationship between the combination of high psychopathy and deviant sexual preferences and sexual recidivism. In fact, a deviant preference on a PPG was not related to sexual recidivism. The combination was related to a high risk for general and violent reoffending. This finding supports the concept that deviant sexual arousal, even to the point of a preference, is not a firmly entrenched trait for a juvenile that extends into adulthood.
In addition to sexual deviance, Antisocial Personality Disorder cannot be diagnosed prior to the age of 18 (DSM-IV, American Psychiatric Association, 1994) due to the fundamental understanding that juveniles may meet some of the diagnostic criterion, but the stability of these behaviors and emotional processes is not present. A diagnosis implying that these are stable characteristics of a juvenile would frequently be highly inaccurate and subject the juvenile to the negative impact of labeling.
One of the major developmental tasks of adolescence is identity formation. Erikson’s classic work on adolescent development (Erikson, 1968) emphasized the importance of identity formation during adolescence. This is viewed as the primary psychosocial crisis facing adolescents. The research indicates that only a small proportion of juveniles will continue to engage in the same level of risk or antisocial behavior that they engaged in as juveniles (Moffit, 1993). The behavior of adolescents does not inevitably determine the moral character they will display as adults. While this poorly formed identity has historically been a mitigating factor to consider in the legal process, it is also very important in considering the implication of registration as a juvenile.
A fundamental component of a registry system that includes “juvenile-only” offenders is the belief that they sexual offending behavior was due to “bad character.” The fundamental attribution error (Jones & Harris, 1967; Ross, 1977) is a well-accepted social psychological phenomenon where we tend to vastly underestimate the power of situations in shaping other people’s behaviors and overestimate the role of dispositional factors. Considering the tendency toward the fundamental attribution error, there is a concern that the sex offending behavior was due to a negative and stable internal disposition of the juvenile and therefore unlikely to change. If one believes “once a juvenile sex offender, always a sex offender” due to a moral flaw, then it is easy to justify lifelong consequences for offending behavior during adolescence.
The common public belief “once a juvenile sex offender, always a sex offender” is inaccurate. The notion that public labeling will be productive in reducing risk for further sexual offending is inconsistent with decades of theoretical and research-based understanding of child development, delinquency, and social psychology. The full impact of the Adam Walsh Act on rehabilitation efforts for juvenile only sex offenders remains unclear. There is little reason to conclude this will be helpful, but considerable reason to conclude this will be harmful.
There is a delicate balance between managing risk and allowing for the growth that can reduce future risk. After generations of ignoring the impact of sexual abuse, we are now taking steps to right the wrongs faced by many victims over the years. As a society, we are recognizing the seriousness of these sexual offenses and developing effective treatment, supervision, and incarceration options. At the same time, we are also faced with the need to help juvenile offenders move into a positive, non-offending adult lifestyle. We need to take into account the needs of all of our society’s children, both victims and offenders. In doing so, we will truly be helping make our communities safer. It is a goal we all share. We need to fight the tendency to lose sight of this goal in the desire to punish, label, and politicize the tragic phenomena of sexual victimization in our society.
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