Why Don't We Just Kick Their Ass? Part 2

Bryce Canyon - photo by JoAnn Sturman

Scott Sturman
fliesinyoureyes.com

All that is necessary for the triumph of evil is that good men do nothing.
Edmund Burke (1729 - 1797)

When the news reports a child has been abducted, raped, and murdered, chances are it is not the first time the assailant has committed a sex crime. Violent sex offenders are difficult to apprehend and convict, and after imprisonment most are released into the general community where many will strike again. The sex offender is more like a terrorist than a thug, able to blend into the population then suddenly attack the defenseless and unsuspecting. Parents admonish their children not to talk to strangers or play in secluded areas, playing the odds a predator will not make the worst nightmare come true.

Recidivism is the relapse into criminal behavior. Calculating how often it occurs can be tricky, so it is important to know how researchers determine results from their studies. Does it occur when the perpetrator is rearrested, charged with another crime, or convicted? As reported by the Leadership Council, accurate rates are difficult to compute because a reoccurence is usually acknowledged when a sex offender is released into a community after the first crime and then caught and convicted of another crime. Contributing to the problem is that sex crimes are grossly under reported. In the National Women's Study 4000 adult American women were interviewed, and 8.5% stated they were raped before the age of eighteen, but of this number only one in eight reported the crime to the authorities. Of those cases referred to the judicial system only a small percentage resulted in convictions - the criteria necessary to influence the recidivism rate. This situation holds true for child molesters as well. Only a fraction of these crimes are reported and molesters are more prone to repeat criminal behavior long after being released from prison.

The following vignette illustrates the difficulty in convicting child molesters even when the evidence against them is overwhelming:

Years ago my friend Steve was summoned to jury duty for a child molestation case. The accused, a thirty year old male with two prior convictions for similar crimes, allegedly sexually assaulted a ten year old girl who lived in the house next door. Over a year's period he repeatedly raped her and insured her silence by threatening to kill her and her mother if she reported the crime.

Steve is a successful businessman, and like many of us who do not receive jury duty compensation from an employer, was reticent to get involved in a long criminal trial. His attitude abruptly changed during the jury selection process when he saw the defendant. Steve made a decision to become a juror and when the judge asked him if he had any preconceived notions, Steve replied, “Your Honor, I believe everyone is innocent until proven guilty.”

Within the first few days of the trial Steve concluded it would be a short affair since the evidence overwhelmingly pointed to a guilty verdict. The testimony was graphic and the defendant's demeanor so sullen and callous that Steve could not conceive of any ambiguity surrounding the case. The defense attorney did his best to obfuscate the facts, belabor the proceedings, and proclaim his client was the actual victim. The case drug on for over two weeks, and at the end of each day Steve felt ill when he left the courtroom; the crimes committed against the little girl were so repulsive and cruel that when he returned home it was impossible for him to sleep at night.

At last the case went to the jury. The facts and testimony were compelling, and Steve assumed the twelve jurors would come quickly to a guilty verdict. Anticipating an early day and a fast decision, he called his wife and asked her to make dinner reservations at their favorite restaurant. As foreman of the jury, Steve asked for a secret ballot to determine where the jurors stood. He was shocked when he counted ten guilty and two not guilty votes. This was not a Twelve Angry Men situation where one impeachable jurist sides against his prejudiced peers and ultimately wins an acquittal for a wrongly accused defendant. There was nothing the defense attorney or the defendant presented which supported a not guilty verdict. On the contrary, the prosecutor fashioned a logical and well documented case. Multiple witnesses corroborated the victim's story, and the physical evidence substantiated their testimony. How could two people listen to the same proceedings and vote not guilty?

It was late at night and the jury was at an impasse. Some jurors spoke eloquently about the soundness of a guilty verdict and asked the two dissenters to identify themselves. It was not until the next afternoon that one of them spoke, “I voted not guilty because I think the Devil made him do it.”

Steve responded softly but firmly, “This jury is not concerned with who made him commit the crime. Our job is to decide whether he did it or not.”

Several others echoed the argument and within an hour the man relented – 11-1.

It was not until late the following day when the last hold out identified herself. She was a widow in her 70's from a small farming town nearby. Despite prodding from her fellow jurors, she refused to change her vote. She reasoned that a guilty vote would constitute the defendant's third strike which mandated a life sentence without parole. She thought the punishment was too extreme.

Finally, Steve had enough. “Madam, do you have a granddaughter?”
“Yes, I have several.”
“Do you have one about ten years old? That's the same age as the girl we have heard about for the last three weeks.”
“Yes.”
“If you vote not guilty because you disagree with the punishment set by the state, you're wrong. When you interviewed to be a juror, you knew this was a three strikes case and the judge made it explicitly clear a guilty verdict meant mandatory life imprisonment.”
“I can't do it. It's not fair a young man should have to spend the rest of his life in jail.”
“Do you think he is guilty?”
“Yes, but I can't be the one responsible for such an extreme and harsh sentence.”
“Very well then. Go ahead and vote not guilty, but I'm going to find out where your ten year old granddaughter lives. When the defendant goes free, he will have no place to stay. I'm going to rent the house next to your granddaughter's house, and let him live in it free of charge.”
“You can't do that!”
“Oh, yes I can. I'm a businessman and make a lot of money. I will make it happen. It is the first thing I will do after we leave this courtroom.”

A few minutes later the judge received a note in his chambers from the foreman. The jury had arrived at a unanimous guilty verdict.

Reinforcing the underestimation of recidivism, the National Crime Victimization Survey from the Department of Justice found at three separate times in the 1990s that only 1 in 3 sexual assaults against persons over twelve were reported. The scope of the problem was highlighted in studies using polygraph testing on sex offenders. They examined prisoners with fewer than two known victims, but discovered each offender to have an average of 110 victims and 318 offenses. Another study using lie detector tests concluded sex offenders committed sex crimes for an average of sixteen years before being apprehended.

In a report from the Center for Sex Offender Management, it was noted from 1980-2000 the number of incarcerated sex offenders increased by 7% per year and by 1997 nearly 10% of state prisoners were jailed for sex offenses. The majority were released on probation or parole which left 60% of all sex offenders managed under community supervision.
In 1997 Prentky conducted a study that showed over a 25 year period child molesters had a higher rate of rearrest than rapists (52% to 39%). The reoffense rate did not decline as time passed after release from prison for the first crime. At the 25 year point over half had committed another sexual crime against children. Two other studies, one in 1988 and another in 1991 noted recidivism with non familial child molesters. In the first 43% were convicted of another crime with a child within a four year period after release. The second used only re conviction to define a second sexual offense and reported 31% relapsed in the first six years.

Ann Salter, an expert on sex offenders and author of the book Predator summarizes the problem:

"The dry research figures only confirm what I have seen over and over in this field: there are a lot of sexual offenses out there and the people who commit them don't get caught very often. When an offender is caught and has a thorough evaluation with a polygraph backup, he will reveal dozens, sometimes hundreds of offenses he was never apprehended for. In an unpublished study by Pamela Van Wyk, 26 offenders in her incarcerated treatment program entered the program admitting an average of 3 victims each. Faced with a polygraph and the necessity of passing it to stay in the treatment program, the next group of 23 men revealed an average of 175 victims each."

When the legal system cannot protect children from sex offenders, the balance is weighted too heavily on the side of the criminal. In an attempt to be humane the pendulum has swung too far from center. There are some very bad people among us who cannot be rehabilitated and need a punch in the nose and spartan jail cell which will be their home for the rest of their lives. And if they happen to have a cell mate who is not entirely comfortable with a predator having sex with a child, it would be hard to find many complaints from most of us.