Sex offenses are upsetting, and their perpetrators creepy. Understandably, it's easy for jurors and even judges to brush aside legal technicalities and burdens of proof in the interest of keeping women and children safe.
But it is disturbing when forensic psychologists collude in this endeavor, disregarding the limits of science by overstating the accuracy of risk assessment instruments, inventing pretextual disorders to justify preventive detention, and even claiming omniscient truth-telling powers regarding ancient, unprosecuted allegations.
In an environment replete with such folie à plusieurs, it was refreshing to read the recent federal decision in the case of Markis Revland, a habitual criminal who faced civil detention after serving time for child pornography possession.
Senior U.S. District Judge Bernard A. Friedman systematically analyzed and rejected the evidence as failing to meet the government's burden of proof. Not only did the government fail to show that Revland had a serious mental disorder that put him at high risk of molesting children if released, it even failed to prove that the convict had engaged in any hands-on child molestation in the past, the judge ruled.
In addition to his conviction for child pornography, Revland had two prior convictions for indecent exposure. However, the most damning evidence against him were his own admissions, made during sex offender treatment at the federal prison in Butner, North Carolina, that he had committed 149 additional incidents of sexual abuse of children of various ages.
But the keen-minded judge of the U.S. District Court for the Eastern District of North Carolina wasn't buying those confessions:
The court finds that all of the 149 incidents reported by respondent ... were the product of his imagination, not actual events.
He explained that Revland was desperate to enroll in Butner's treatment program in order to escape the infamous federal prison in Leavenworth, Kansas, where he feared for his life after being beaten and raped at knifepoint by fellow prisoners. Once at Butner, he felt compelled to fabricate "a long list of sex offenses," lest he be deemed uncooperative and returned to Leavenworth.
The offenses that he described in great detail were implausible, in that he was serving a prior, 10-year prison term for cocaine at around the same time that he said he was running around molesting children, the judge determined:
The reported incidents were not only too numerous to believe but also recounted—years afterwards—far too precisely, with respondent providing the age of the victim, the time of day ... when each offense occurred, and the location where each incident allegedly occurred ... And yet the government offered no evidence to independently verify that any of these incidents occurred or that any of them—even one—ever resulted in investigation or prosecution.
As a group, Butner offenders—most of them incarcerated on child pornography charges—have confessed to an unusually high number of undetected sex offenses, leading many observers to suspect that the widely publicized numbers are unreliable. Critics say treatment providers at the federal institution pressured prisoners to report as many offenses as possible, lest they be accused of not cooperating.
Likewise, Judge Friedman was unconvinced by the government's claim that Revland suffered from a mental disorder, pedophilia, that would justify civil commitment by making him likely to engage in future child molestation if released.
Friedman conceded that the convict met the criteria for antisocial personality disorder. But he found that such a diagnosis was irrelevant:
The essence of this disorder is that the patient "fail[s] to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest." Dr. [Jeffrey] Singer testified that the vast majority of prison inmates have this disorder, as they are in prison for breaking the law and failing to conform to social norms. Dr. [Joseph] Plaud testified that there is no documented causal link, in this case or in general, between antisocial personality disorder and sexual dangerousness. The court credits these experts' opinions.
Finally, the judge rejected the claims of two government psychologists that two so-called actuarial instruments, the Static-99R and the MnSOST-R, showed Revland to be at high risk for recidivism.
Judge Friedman said the risk assessments by both Dr. Manuel Gutierrez, a Board of Prisons employee, and contract psychologist Jeffrey Davis were "particularly unreliable in the present case because they both assumed that [Revland] is a pedophile with numerous 'hands-on' victims, whereas the court has rejected both of these premises."
Increasingly, cutting-edge researchers are coming to the consensus that by and large, with a few exceptions at the extreme end of the continuum, sex offenders are not a distinct group worthy of the level of special attention they are getting these days. Rather, they are garden-variety criminals who violate social norms, take what they want, and eventually burn out as they enter middle age.
The judge's bold language in cutting through the empty psychobabble about mental disorder and risk harkens back to the little boy in the Hans Christian Andersen tale, The Emperor's New Clothes, who was not afraid to declare out loud that the emperor had no clothes.