In an op-ed in the Philly Inquirer, Drexel lawprof Dan Filler raises a “radical” notion about “radical” sex crime laws. Have they gone so far off the deep end that they backfire, and dissuade the reporting of sex crimes? Using the case of Jerry Sandusky to raise the issue, Filler contends:
Though he raises the possibility, Dan’s recitation of events undermines his thesis in this particular instance, that choices made by the administration at Penn State weren’t dictated by concern for Sandusky, but the ramifications for the university. This was a scandal of monumental magnitude, both for Sandusky as well as Penn State. While Curley and Spanier appear to be somewhat concerned for one of their own, Sandusky, they were clearly concerned for the impact on their beloved institution.
But there is another lesson to be learned from this horrible story, and it’s time we acknowledged it. Penn State’s administrators might have buried the charges against Sandusky partly because our national anxiety about sexual abuse has resulted in a lattice of laws so toxic that people are afraid to report it. Although Penn State officials may have wanted Sandusky to stop, they also may have feared the overwhelming consequences of reporting the crime.
Penn State’s former athletic director, Tim Curley, reportedly sent an e-mail to peers recommending that they respond to reports of Sandusky’s crimes by telling him that his misconduct had been discovered, urging him to get treatment, notifying his charity, and prohibiting him from bringing his “guests” on campus. Former Penn State president Graham B. Spanier reportedly conceded the dangers of evading Pennsylvania’s mandatory reporting requirements but agreed to the strategy as a “humane and reasonable way to proceed.”
All of this is certainly true, and those of you inclined to read blawgs such as this are no doubt painfully aware of the “radical” nature of the penalties imposed upon sex offenders, from those like Sandusky who are properly classified as sex offenders to those who urinate outdoors after too many beers.
Over the past two decades, advocates, the media, and politicians have stoked public fears about sexual abuse. The resulting panic has had serious consequences. It has subjected all sexual offenders to greater stigma and, more importantly, has led to a complex array of laws that dramatically increase the costs of conviction even for less serious sexual offenses. In some states, a low-grade sex offender faces greater repercussions than a murderer.
Prison is just the start. Every state also imposes the public shame of community notification. Most restrict where such offenders can live — in some cases so severely that homelessness becomes the only viable option for offenders. Some states are even incarcerating people beyond their regular sentences because they are expected to commit sex crimes in the future.
But most people don’t know as much about this, and fewer still give it a great deal of thought. Most people, if thinking about sex offenders, think about raped children, and ideas like drawing and quartering come swiftly to mind. There is no punishment too harsh, as far as they’re concerned, and they’re not sufficiently concerned with how the “toxic” lattice of laws plays out for offenders they deem wholly undeserving of any sympathy whatsoever. They think of the victims. Thoughts of Sandusky have nothing to do with humane concern.
While the Sandusky is a natural choice for discussion, given its news profile of late, it’s likely a poor example of Dan’s point. Few cases receive such attention, and fewer still have such conflicting motives among those who could have, and should have, reported it. This was not your typical sex offender case.
There might have been some aspect of legitimate concern for what would become of Sandusky in light of the radical laws. Maybe the athletic director and administration saw Sandusky as a friend, a comrade, and didn’t want to saddle him with life as a sex offender. Maybe sweeping it under the carpet and getting him “therapy” was a product of a more humane approach. But when it comes to children being molested, concern for the victims comes well ahead of concern for the molester to most of us,
But I don’t buy it. Not with Sandusky. As for others, the question of whether the absurdly harsh consequences influence reporting requires the confluence of two things, that those in the position to report are sufficiently aware of the consequences, and that the sex offense involved isn’t so horrific that it doesn’t trump any concern about consequences to the perpetrator. How often do these two things come together?
Dan concludes that this concern must be taken into account when dumping consequences onto sex offenses.
From the perspective of those of us who, disconnected from the emotional charge stemming from serious sex offenses, there is no doubt Dan is correct that when law becomes so radical it works against the protection of victims. Indeed, in time, as people become more aware of the consequences of a sex offense conviction, they may begin to make the choice not to report because of overkill, disproportionality, inherent lack of humanity.
There is no question that society needs strong laws prohibiting and punishing sexual abuse. But those laws must be well-reasoned and tailored to be both just and effective. Over the past 20 years, society has approached sex crimes with unbridled passion and anger. This emotional search for justice is entirely appropriate in particular cases; that is one purpose of sentencing. But when the same intense feelings become an engine for policy-making, they may undermine the crafting of effective laws. The goal, after all, is to prevent Jerry Sandusky and others like him from victimizing children, and that won’t happen if we deter people from reporting their crimes. When laws become so radical that they work against the protection of victims, they are inherently inhumane.
But there is nothing humane about sexually molesting children. There is nothing humane about rape. When it comes to serious sex offenses, it’s essentially impossible to imagine that it doesn’t, and won’t continue to, trump any small concerns about the perpetrators of such crimes. Yet to the extent that any person decides not to report a sex offense because of a concern over radical laws, then that’s one too many. Dan may not raise a huge problem, but since the toxic lattice of laws is already way beyond anything justifiable, and may have the unintended consequence of leaving sex offenses unreported, then his conclusion still holds true.