Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

WHOSE JUSTICE? 
A response to the Economist’s criticism of U.S. Sex Crimes Laws

By Wendy J. Murphy
New England Law|Boston

When an article about sex crimes is entitled "unjust and ineffective" you 
know the text that follows will be a puff piece about how sex offenders are 
treated unfairly and sex offender registries are barbaric.  A recent piece by 
writer Georgia Harlem in the prestigious Economist did not disappoint.  

It begins with a typical extreme example of a 17 year-old prosecuted for 
committing a sex offense against an underage student in the middle of a 
classroom while other students were watching a film.  Nearly one quarter of 
the article is spent on the details of this one case - while zero ink is 
dedicated to explaining that the prosecution of teens who engage in 
consensual (if underage) sex is exceedingly rare.  Indeed, the only types of 
sex crimes described in detail in the piece are those involving "technically" 
criminal conduct - such as underage sexual events between a teenage boy and 
his "high school sweetheart".  The article nowhere describes in similar 
detail the more typical, brutal sex crime, nor is there a single word about 
the way the crime negatively affects most victims for the rest of their 
lives.  The United States Supreme Court describes rape as the most severe 
harm to the self short of murder, but the Economist chose to focus on teen 
sex to argue that American laws against sexual violence are "unjust”.

No surprise then that the au
thor misses the most important point of all - that the American legal system 
has historically perpetuated sexual violence by disproportionately failing to 
redress violence against women and children.  A study submitted to Congress 
by then Senator Joseph Biden proved that less than 2% of rapists spend even 
one day behind bars and that rapists, on average, receive less punishment 
than people who commit property crimes.  Likewise, a study done by Professor 
Ross Cheit at Brown University proved that sexual crimes against children are 
rarely prosecuted, and rarely end with the offender being incarcerated for 
any period of time.

Embarrassingly, the article also claims that recidivism rates for sex 
offenders are low, and Harlem cites as definitive proof a widely misused and 
misleading study of 10,000 sex offenders that found only "5% were rearrested 
for a sex crime within three years."  As with so many advocacy pieces on this 
topic, this claim fails to note that the study tells us nothing about 
recidivism because it measures only "rearrest rates".  Where 80-90% of sex 
offenses are never reported - much less lead to arrest - measuring re-arrests 
to determine recidivism rates is like measuring nationwide rainfall by 
looking only at the data from Las Vegas.

Even more arrogantly, the writer dismisses people who claim that 75-90% of 
sex offenders reoffend, claiming, "it is not clear where they find such 
numbers".  Too bad Harlem couldn't locate the wealth of research on 
recidivism laid out in Dr. Anna Salter's 
prize-winning book on the topic where she notes that some studies find the 
average sex offender has over 100 different victims during a lifetime.  

This is why sex offender registries are good, if imperfect, social policy.  
Some people misuse the information but it’s no more an excuse to ban all 
registries than it’s a good idea to cancel all welfare programs because of 
the few who cheat.

Harlem claims being on a registry makes it tough for a convicted rapist to 
get a job.  But isn’t the real issue the fact that he committed a horrific 
act of violence?    Registries don’t create new data – they simply make 
existing public information easier to access.   If the government didn’t 
create a registry – the public could do so on its own – and a publicly 
created registry would probably be even more problematic for offenders in 
terms of maintaining correct data, etc.

Harlem is right about a couple of things.  Registries should contain more 
information so that a teen sex case isn’t misunderstood as a more serious 
crime. And vigilantism is wrong.   But blaming vigilantism on sex offender 
registries is silly.  Vigilantes have emerged in sex crimes matters in 
response to evidence that the American legal system has failed women and 
children.  When the law doesn't work as it should, people take matters into 
their own hands - as blacks did during the civil rights movement - and in the 
aftermath of Rodney Kin
g - when the system failed to redress racist violence.

Criticism of laws and sex offender registries is fine, but it should be based 
on truthful information about what really happens.  The Economist usually 
understands the importance of being straight with its readers.  Not this time.