Some cases are unwinnable. It is our job to prepare for mitigation at sentencing.
In the last decade, there has been much media focus on the problems of internet child exploitation, online sexual predators, and child pornography. There is increasing public anger surrounding these hot-button issues. The media coverage has been sensational and inflammatory. Everyone is familiar with the NBC Dateline: TO CATCH A PREDATOR series.
There is increasingly a 'lock em up and throw away the key" mentality among the general public. Pennsylvania and Federal Statutes have mandatory minimum penalties for some of these crimes. Many of the individuals convicted of these crimes have sexual addictions and/or severe psychological diseases. All of these individuals can be rehabilitated.
From 1994-2007, the mean sentence for Federal child pornography cases rose from 3 years to almost 10 years. The Federal sentencing guidelines are off the charts. They are a legislative response to the public outcry. To quote PA Rep.Greg Vitali, "legislators by and large tend to vote for things based on how the issue can be reduced to a sound bite and used against them." Keep in mind that possession of child pornography is a non-contact sexual offense. The prosecution argues that without the market for these images, there would not be the abuse of children necessary to produce these images. Additionally, prosecutors routinely argue that there is an ongoing harm inflicted upon the child victim by each additional viewing of the image of child pornography. Their contention is rooted in the unproven fear that viewing these images is the first step to committing a contact sexual offense.
In many cases, prosecutors cite a flawed study entitled "The 'Butner Study' Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders" (The Butner Study") to support their assertions. In fact, there are two versions of this study, the published version and the unpublished version. Federal Courts have routinely dismantled both, calling them "fundamentally flawed in design" The study has been criticized because it is co-authored by a US Marshall, among other things, There are several other studies floating around, all of them based upon prison populations. Most of the criticism of these studies focuses on the fact that the sample from which most of this data originates is inherently biased.
The challenge for the defense lawyer in these cases is to rebut this empirical data and to distinguish the client's individual circumstances. Our job at sentencing is to mitigate by putting forth relevant mental health information and the testimony of mental health professionals to persuade the court that the client is not prone to a repeat offense. Many of these offenders are compulsively addicted to online pornography. We routinely have our clients examined by mental health professionals. There are a number of programs available in the Southeastern Pennsylvania Region for people with Sexual addictions. We have been successful in obtaining federal sentences outside the guideline range by arguing a dramatic level of acceptance of responsibility and proving that there is a low risk of recidivism..
Our job is to persuade the court of the unusually high likelihood of rehabilitation because of the mental health support network assisting our client. These professionals are able to accurately evaluate impulse control, psychopathy, motivation and capacity to respond to appropriate treatment. It is our job to weave these evaluations into our argument against the likelihood for recidivism. From a legal perspective, the goal of psychosexual evaluations is to assist participants in the legal system (among others: the court, prosecutor, and presentence investigator) to understand who is most likely to respond to treatment as opposed to incarceration, monitoring, or some combination thereof.
These evaluations include a discussion of the offender's psychological, physical, and sexual trauma history, which is often present in these individuals.
Most experts divide child sexual offenders into three categories:
The first type of offender is known as the violent offender. Studies indicate that violent child sexual offenders make up less than 5% of child sexual offenders. They have been proven to engage in hostile acts toward children such as child rape, bizarre ritualistic sexual behavior, and murder. This type of offender is what the public routinely thinks about when they think of any child sexual offender. These "snatch and grab" offenses fuel the public hysteria.. Most experts in the criminal justice system correctly agree that this type of offender requires long term, if not permanent, incarceration. Obviously these cases are next to impossible to mitigate. The prognosis for any type of rehabilitation is questionable.
The Second type of offender are routinely labelled "regressed" or "situational" child sexual offenders. This category represents almost 80% of all child sexual offenders. They are most likely to end up in a court of law and also the most likely to benefit from sex offender treatment. Many situational/regressed types harbor an enduring sexual orientation and social interest toward a certain age group. According to experts in the field, this individual may enjoy a successful career and family life, most often not offending until presented with specific life stressors or situations. Often married or in a stable relationship, the situational offender's sexual interest in children is often temporary or opportunistic. The regressed sexual offender's behavior is episodic, tending to flare up when exposed to emotional stressors (such as job loss, financial stress, or other losses). In some cases, it is prompted by internet pornography and sometimes even strip clubs.
It is not unusual for a regressed/situational offender to view child pornography, but not to engage in sexual contact with a minor unless disinhibited by drug or alcohol use or under psychological stress. Alcohol abuse and drug dependency are often identified as precipitating factors for this type of sexual behavior. Depending on the individual, this type of offender can respond well to behavioral and cognitive therapies. With appropriate intervention, treatment, and long term monitoring, such an offender is less likely to re-offend.
The third type of child sexual offender is the "fixated" or "dedicated" type. Approximately 10-15 percent of all child sexual offenders are of the "dedicated" or "fixated" type. This offender is termed a pedophile if he/she is primarily or solely aroused by pre-pubescent children. An offender who is aroused by post-pubescent children is called an ephehbophile. They have little interest in sex with adults or find adults not to be sexually arousing, thus the terms "fixated" or "dedicated" since their sole sexual interest lies in pre- and/or post- pubescent children. "Fixated" or "dedicated" sexual offenders seek access to children not only because of a sexual interest in children, but also because of greater social and emotional comfort with children as opposed to adults.
These fixated offenders remain difficult to treat and have a high rate of recidivism. There are many programs to reduce hormones and other medications crudely called "chemical castration" which can be utilized to lower the sexual drive and desire. Behavioral avoidance therapy can be helpful on a case by case basis. With proper treatment, the fixated offender has been shown to be able to learn ways to avoid child sexual contact and arousal. The studies are pessimistic concerning the likelihood of the offender to develop interest in adult-oriented sexual patterns. Most sentences for this type of offender require substantial incarceration, registration, and long term monitoring of behavioral appropriateness.
There has been much talk in the press about sexual rehabilitation centers and the disease of sexual addiction. This area usually is represented by addictive and compulsive patterns of non-criminal sexual behavior that are compulsive, addictive, or fetishistic (compulsive masturbation, prostitutes, repetitive extra-marital affairs, etcetera). Recent studies show that between 3-5% of the population may have this sexual addiction problem.
The media will continue to fuel persistent misconceptions and public anxiety about the danger that sexual offenders pose to the society at large. Possession of child pornography and internet child exploitation prosecutions have allowed the distinction between contact and non-contact sexual offenders to be blurred. It is necessary for the defense lawyer to challenge many cultural assumptions and to become familiar with psychological information vis-a-vis motivation and patterns.
