Vol. 14 No.10 (October 2004), pp.794-798

AN AMERICAN TRAVESTY:  LEGAL RESPONSES TO ADOLESCENT SEX OFFENDING, by Franklin E. Zimring.  Chicago:  University of Chicago Press, 2004. 216pp. Cloth. $29.00.  ISBN: 0-226-98357-9.

Reviewed by Mark Chaffin, Professor of Pediatrics, University of Oklahoma Health Sciences Center.  Email: Mark-Chaffin@ouhsc.edu

There was, until the end of the eighteenth century, a theory that insanity is due to a possession by devils. It was inferred that any pain suffered by the patient is also suffered by the devils, so that the best cure for insanity is to make the patient suffer so much that the devils will decide to abandon him.  Bertrand Russell

This is not a good time in history to be a teenager caught engaging in illegal sexual behavior.  Although proponents might argue, with some reason, that our current and very aggressive legal and treatment response to these youth represents an improvement over years of blindness and silence, it is almost a given that advocacy tends to be followed by excess.   “Boys will be boys” has given way to moral panic about sex offenders and perceptions of these youth as uniquely dangerous, recidivistic, and possessed by the demon of hidden sexual abnormalities which can be driven out only by aversively overpowering the resistance of the possessed and his family.  Youth may undergo years of compelled therapy, in which they must conform their thinking to a therapy-model which assumes that their behavior is part of a compulsive and repetitive “cycle.” They may be required to keep journals of deviant sexual fantasies, and, most of all, required to confess.  Confess their deviancy and differentness.  Confess their past offenses—incriminating themselves if need be.  Confess that their ostensibly normal social behavior is “victim grooming.”  Confess that their motives are rarely benign.  Confess that they are and always will be a sex offender.  Failure to espouse the correct beliefs about oneself as different, deviant, and at continual risk may be grounds for loss of basic freedoms and sanctions.

In many States using what is known as a “containment approach,” youth may be required to register with law enforcement, and report to police when they travel, go to college or take a new job.  Worse, many must bear their label publicly, including official postings on the internet.   Depending on the State of residence, these burdens can be life-long, even if based on behavior that occurred as a preadolescent child or early teenager.  In “containment approach” communities, youth must undergo and pay for regular polygraph interrogations to check (with unknown but scientifically questionable validity) for “inappropriate thoughts” or until confessions of hidden past offenses, lapses in thinking, and deviancy are extracted.  Families may be required to inform schools, family friends, and social contacts about the nature of their adolescent’s sex offense and his presumed ongoing proclivity to re-offend.   The unfortunate consequence of labeling these youth as deviant, different and uniquely dangerous has been an [*795] abandonment of more benign tenets of both the juvenile justice and mental health systems—namely the assumptions that most youth, provided with a reasonable amount of structure, guidance and support, will mature out of delinquent behavior, and that treatment providers serve as allies rather than adversaries of their patients.  The juvenile justice system is of course concerned with sanctions, but it has always been equally concerned with integrating delinquent youth more into normal, prosocial teenage life—engagement with school, sports, jobs, and a positive social life.   For juveniles, public stigma has been viewed as counterproductive because it interferes with normal social integration and development.  With youth who commit sex offenses, on the other hand, segregation rather than integration has been the priority, and in some states public stigmatization is a specific policy mandate.  No other type of juvenile offender is viewed with such suspicion, and no other type of juvenile offender experiences comparable exceptions to customary juvenile justice and treatment philosophies.

In all fairness, I should note that there is considerable controversy among juvenile sex offender treatment professionals and researchers about most of the policies and practices I caricatured above.   Actually, many of the more recognized authorities in the field have long abandoned these perspectives, if they ever held them at all.  Unfortunately, these harsh perspectives originally developed for adult sex offenders, but then handed down to juvenile policy and practice, have not only taken root but seem to have flourished in some settings and taken on a life of their own.  Many of the harshest beliefs about these youth have become so reified in insular clinical practice cultures and in the public eye that they roll on unimpeded by the facts.  It is always easier to stir fear, anger, righteous indignation and intolerance than to calm it.  And, besides, who wants to defend sex offenders? 

The idea that we have gone too far in our handling of these youth, and that the available science supports few, if any, of the harsh practices described above, has been expressed in panels commissioned by the U.S. Office of Juvenile Justice and Delinquency Prevention (OJJDP 2000) by myself (Chaffin and Bonner 1998) and others in the field (ATSA 2000; Becker 1998; CSOM 1999; Hunter, et al. 2004; NCSBY 2003; Righthand and Welch 2001).  The ongoing debate between proponents of “tough” and “soft” approaches toward these youth largely has been carried out within the confines of academia or within the tiny field of juvenile sex offender treatment.  What has been missing is a clear, legal- and policy-oriented analysis of the issues which can catalyze reanalysis of current thinking.  Franklin Zimring provides this.  AN AMERICAN TRAVESTY is an opinionated, articulate and forceful critique of current policies and practices, measuring them against the values on which the juvenile justice system was founded along with a clear analysis of the existing science.  Zimring’s critique is unique in analyzing the issue from a combined base of history, law and values, as well as scientific evidence, consequently bringing new dimensions to this dialogue.

The scope and interpretative grasp of scientific evidence is impressive and for [*796] the most part up to date and accurately presented.  The book is not intended to be a comprehensive presentation and analysis of the scientific literature, and readers seeking this should be advised to look elsewhere.  However, Zimring gets it right about those points that are central to developing sound public policy.  These include exposing misconceptions about high sexual reoffense rates (detected sexual reoffense rates are quite low and always have been); the fact that most of these youth have more in common with other teenage delinquents than they do with adult pedophiles or rapists; that the risk for non-sexual re-offenses is vastly higher than the risk for a future sex offense; that very few adolescent sex offenders appear to have entrenched sexual deviancies; and that despite the dogma about intervention imperatives, none of the approaches often mandated by state sex-offender boards or state standards have ever been evaluated with sufficient rigor to establish that they are, in fact, necessary or even superior to alternative approaches.  Perhaps the most important point emphasized is the diversity of the juvenile sexual offender population and the corresponding need to approach each situation on a case-by-case basis, irrespective of charged offense, rather than simply routing anyone accused of a sex offense into one-size-fits-all sex offender programming.  

A substantial portion of the book is devoted to analysis of the 1993 National Task Force on Juvenile Sex Offending report (NAPN, 1993).  Zimring traces the roots of harsh, adversarial handling of juvenile sex offenders to the recommendations and assumptions offered by this panel.  I suspect that the panel report reflected far more about mood of the late 1980s and early ’90s than it did anything unique to the panel itself.  A confluence of social forces characterized that era, including panic over the assumed pervasiveness and devastation of child sexual abuse, fear of juvenile crime, political correctness, and fear of appearing soft on crime.  This was also the era in which “nothing worked,” in juvenile justice and the public looked askance at programs that appeared anything but tough and adversarial towards delinquents.  Victims, not juvenile offenders, were supposed to be our foremost concern, and concern for victims was thought to be best shown by being tough on juvenile offenders.  I suspect some panel members felt it necessary to harden their rhetoric beyond what they actually practice.  I doubt that the National Task Force was really the root of the problem.  In fact, many members of that Task Force have been very vocal about humanizing our handling of these youth.  

One of the central points advocated by Zimring is restoration of case-by-case decision making, including decisions about arrest, prosecution, labeling and mandatory sex offender treatment, and placing these decisions more in the hands of traditional juvenile justice decision makers rather than specialized sex offender treatment experts.  This more nuanced approach to dispositions makes good sense, regardless of who is making the decisions.  However, it does reveal a key problem.  Given the diversity within the adolescent sex offender population, including diversity of risk posed to the community, and the corresponding diversity of responses we should apply, how does one decide what should be done with whom?  Unfortunately, this is where our current [*797] state of scientific knowledge reaches its limit and offers little assistance.  There are no empirically validated classification, risk assessment or triage systems.   A challenge facing the field at the present time is to develop a coherent empirically-derived classification system and actuarial risk prediction systems that would assist the juvenile court in separating the small number of youth who are acutely dangerous or intransigent from the larger number who are not.  Zimring tries his hand at proposing a classification system to assist in this process, but unfortunately we can not hold this to be much more than speculation.  The book ultimately concludes that there needs to be a concerted effort to answer these questions scientifically, and on this point I suspect there is little debate.  Moreover, the book emphasizes the need to put current adolescent sex offender treatment and plausible alternatives to the test in rigorous scientific trials.  To date, these important and necessary efforts have not been a strong priority for federal research funding.  Until these problems are solved (and they ultimately can be), decision makers may simply have to rely on soft methods and learn to live with uncertainty.  Informed uncertainty is still preferable to misguided certainty.

Zimring concludes by offering suggestions for juvenile court case handling procedures, as well as an analysis of whether and in what ways Megan’s law might be applied to juveniles.  He correctly notes that neither the risks nor the benefits of Megan’s law have been well studied, and we should be cautious about imposing potential risks on minors when the benefits to society are unknown.   Public notification laws represent the quintessential unthinking application of adult sex offender assumptions and policies to children and youth.  Some states have no age limit on who they will register as a sex offender.  Other states have developed far more selective and limited systems.  Registration and notification laws may be popular for many reasons.  Who would not want to know if they are living next door to a sex offender?  Plus, they are cheap and give the impression that something is being done about the problem.  We might be concerned that states will engage in a process of ratcheting up the severity of notification requirements each time there is a high-profile re-offense, and that the system will become progressively more draconian.  Yet, this does not seem to be happening, or at least not everywhere.  Some states that initially had inclusive and longer-term registration systems have begun to make them more selective and limited (e.g., Minnesota, Texas) and some states that only recently developed juvenile registration and notification systems have included sunset provisions and procedures involving considerable effort and case-by-case assessment before imposing registration or notification burdens on youth (e.g., Oklahoma).   It may be that the current era is ripe for a re-evaluation of our policies on juvenile sex offenders.  If that is so, then this book is timely.  I would recommend this book for anyone interested in re-thinking the fundamental questions of how our courts and systems should respond to these cases.      

REFERENCES:

Association for the Treatment of Sexual Abusers. 2000. “The Effective Legal Management of Juvenile Sexual Offenders.”  Position paper.  Beaverton, OR:  ATSA. [*798]

Becker, J.V. 1998.  “What We Know About the Characteristics and Treatment of Adolescents Who Have Committed Sexual Offenses.” 3 CHILD MALTREATMENT 317-329.

Center for Sex Offender Management. 1999.  “Understanding Juvenile Sexual Offending Behavior:  Emerging Research, Treatment Approaches and Management Practices.”  Silver Spring, MD:  CSOM.  Available at www.csom.org

Chaffin, M., and Bonner, B.L. 1998.  “Don’t Shoot, We’re Your Children: Have We Gone Too Far in our Response to Adolescent Sex Abusers and Children with Sexual Behavior Problems?”  3 CHILD MALTREATMENT 314-316.

Hunter, J.A., Gilbertson, S. A., Vedros, D., and Morton, M. 2004.  “Strengthening Community-Based Programming for Juvenile Sexual Offenders: Key Concepts and Paradigm Shifts.”  9 CHILD MALTREATMENT 177-189.

National Adolescent Perpetrator Network. 1993.  “The Revised Report from the National Task Force on Juvenile Sexual Offending.” 44 JUVENILE AND FAMILY COURT JOURNAL 1-115.

National Center on the Sexual Behavior of Youth.  2003.  “NCSBY Fact Sheet

Adolescent Sex Offenders: Common Misconceptions vs. Current Evidence.”  Oklahoma City, OK:  NCSBY.  Available at www.ncsby.org

Office of Juvenile Justice and Delinquency Prevention. 2000. “Understanding Treatment and Accountability in Juvenile Sex Offending: Results and Recommendations from an OJJDP Focus Group.” Development Services Group,   Training and Technical Assistance Division, Inc., 7315 Wisconsin Avenue, Suite 700E, Bethesda, MD 20814.

Righthand, S., and Welch, C. 2001.  “Juveniles Who Have Sexually Offended:  A Review of the Professional Literature.”  Washington, DC:  OJJDP.

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© Copyright 2004 by the author, Mark Chaffin.