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July 10, 2012

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Rob Mikos

Dan--

I agree that harsh sanctions can sometimes dissuade the reporting of the offenses they're designed to deter. Indeed, in an earlier article, I show how increasing the nominal sanction for a given offense could reduce the expected sanction, not only by discouraging victims (and others in the know) from reporting such crimes, but also by discouraging police and prosecutors from filing charges, witnesses from testifying honestly, jurors from convicting, etc. In the article, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=605422, I explore several real-world examples where this dynamic seems to arise -- deportation; denial of firearms privileges; denial of public benefits, and SORNLs, among others.

Still, I disagree with your analysis of the Sandusky case and its implications for sex abuse reporting more generally. First, I don't think many people -- victims, witnesses, police, prosecutors, jurors -- would deem the punishment for sex abuse as disproportionate or overly harsh. Sex abuse is, after all, a horrendous crime. Now it's true that friends and family members of perpetrators usually won't want them to prison for any length of time -- but that's true of any offense, not just sex abuse. Second, even if formal legal sanctions for sex abuse were reduced, it's not clear that step alone would encourage more reporting. The reason is that offenders would still be subject to tough social sanctions (shame, ostracism, etc.). And it seems likely these sanctions alone could be enough to discourage reporting (if that indeed happens), regardless of how we set the formal legal sanctions.

FWIW, I think the Penn State officials made a terrible decision, and they probably did so for selfish reasons -- e.g., to avoid emroiling the University in a salacious story (clearly, this backfired). I'm not convinced they did it because they thought Sandusky would be unfairly punished for his crimes -- i.e., that the laws were too toxic.


Orin Kerr

Dan,

I don't think I follow the connection of your argument and the Sandusky case. I recognize that op-eds sometimes use a story in the news as an example to then make a broader point. But here it seems like the facts of the news story actively undercut your argument rather than serve as an example of it.

Dan Filler

Rob and Orin, thanks for the comments. When I refer to the lattice of laws, I am referencing not just prison but other things as well - and particularly community notification (as distinct from registration) and residency restrictions. These provisions, I believe, are part of the general scheme which shames, marginalizes, and ultimately destroys many offenders - and any family or friends who do not choose to expel them from their lives. This disintegrative shaming does not yield many, if any, benefits, and likely makes potential reporters think hard before reporting.

good grief

Penn State officials did not report Sandunsky because they felt sorry about him having to register as a sex offender after prison? Oh the marvels of partisan spinning.

Steve Smith

Dan,
I read your op-ed earlier this week and was astonished, quite frankly, by your overly simplistic and misguided interpretation of the complex process that victims go through when deciding to report a crime. As a criminologist and also as someone who serves on the Board of a local organization that works with child victims of sexual abuse, I felt an obligation to respond. I and a colleague drafted a response and submitted it to the Inquirer; unfortunately, the Inquirer (so we were told) does not publish rebuttals to op-eds outside of the brief "letter to the editor" format. Who knew!? We did submit a letter and do not know if the paper will print it. Either way, that limited format does not allow sufficient space to address our deep concerns with your piece. So for what it's worth, I am copying you a copy of the original draft of our rebuttal. Even this does not go into sufficient detail about why we disagree with your conclusions. I am happy to elaborate on any thing below, and I'm looking forward to your response.

Steve Smith

As a child forensic interviewer and as a criminologist, we both could not disagree more with Daniel Filler’s analysis in “Penn State scandal shows sex-abuse laws can backfire.”

The laws have not “backfired,” and the suggestion that legislative leniency is the solution to the enormous problem of unreported child sexual abuse is misguided and ultimately dangerous. We need only to look at historical reporting trends to refute Filler’s assertion. Based on his hypothesis, one would expect that in the 1950's, 1960's and 1970's, when the system was very distrusting of victims and criminal sanctions were comparatively light, reporting rates would be much higher than what they are now. That is simply not the case.

While it’s true some offenders – not just sex offenders – can at times be treated too harshly by the Criminal Justice system, there is no evidence that a victim’s (or those with knowledge of victimization) decision to report a serious crime is dictated in full by the perceived legal consequences facing the offender. Victims (particularly ours because of their age) may think about getting offenders, especially those close to them, "in trouble" but have no knowledge of what that means in legal terms.

And while it may be the case that some minor sex offenders face tough sentencing and post-sentence consequences, this wasn’t the case with Sandusky. It was a rape, observed by an eyewitness, that was reported to Penn State University officials, not a minor sex crime. It’s absurd to suggest that someone with knowledge of such a serious crime would decide to not report it solely out of altruism for the offender. It is also offensive to argue that current laws against the sexual victimization of children create sympathy or concern for the offender’s welfare that outweigh concerns for the child. Indeed, suggesting that Penn State officials acted largely out of concern for Sandusky is comical.

Filler doesn’t take into account the uniqueness of sex offenders. Unlike most other types of offenders, those who sexually assault children do not “age out” of crime and without intervention they are likely to continue to commit crimes. He also fails to address how “minor” offenses committed by sex offenders are not isolated events, but oftentimes indicators of a continuum of behavior designed to “groom” a child for more serious victimization. Filler creates an impression that every Peeping Tom or “touch case” results in severe sentences, when in reality it’s only a subset of those offenders who receive the harshest sentencing or social consequences, based on a clinical prediction of dangerousness. This is no different than the way we treat serious offenders who commit crimes (sexual or not) against adults. And since cases where “a low grade sex offender faces greater repercussions than a murderer” (Filler) are the extreme exception rather than the rule, they should not be the example used in making policy or in formulating opinions about this issue.

Filler’s supporting point that some offenders are punished based on crimes they are expected to commit in the future is most problematic of all. Sentencing statutes are designed to do two things – punish offenders proportionally based on their current offense, and prevent future crime. It is not unreasonable to incapacitate sex offenders who, based on predictive tools, are considered likely to sexually assault children repeatedly over time.

The answer here is not weaker laws or lighter sentences. The answer should be more support for victims and a fair, informed and coordinated investigative process, like what is conducted every day at the Philadelphia Children’s Alliance, which ensures justice for everyone involved. There’s no denying reporting abuse is scary and oftentimes the kids we see express concern about what will happen to the offender. But if victims and witnesses had more confidence in the system to do what it was designed to do, which is to find the truth and take appropriate action, there would be more willingness to report, more faith in the overall outcome, and greater safety for children. Cases of a teenager “sexting” a picture of themselves and then being considered a sexual offender rise to the national stage because they are outlandish, but what doesn’t get broadcast on television or in the papers is the vast majority of cases where a predator escapes accountability even after abusing multiple victims. Minor offenders rarely get the Draconian punishments that Filler purports, and the more serious predators often get much less than what they deserve or is needed to truly protect children. The devastating and lasting impact is left with the child victims and their families.

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