More than five years after the Supreme Court held that the federal sentencing guidelines are no longer binding but merely advisory, judges for the most part continue to follow them, though there is an ever-growing divergence, according to the most recent federal sentencing statistics.
Judges are attempting to comprehend the degree of discretion the Court handed back to them in U.S. v. Booker, 543 U.S. 220 (2005), which held that the guidelines violate the Sixth Amendment right to a jury because they required harsher sentences based on facts found by judges rather than jurors.
Instead of eliminating the guidelines, the Booker Court said judges must take them into account, along with other factors listed in the sentencing law, 18 U.S.C. 3553(a), including the nature and circumstances of the offense.
There has clearly been an incremental trend away from strict adherence to the guidelines. The statistics, released April 9, show that for the 2009 fiscal year, which ended Sept. 30, 2009, 56.8 percent of sentences were inside the guidelines, down from 61.7 for 2006, the first year after Booker.
The percentage also declined in both of the intervening years, to 60.8 percent in 2007 and 59.4 in 2008.
It seems that nationally more than half of sentences are within the guidelines, the rate varies widely from district to district -- from a low of 27.8 percent in the District of Arizona to a high of 92.3 percent in the District for the Northern Mariana Islands, both part of the 9th Circuit. The second lowest and highest rates of fealty to the guidelines were the District of Vermont's 30.8 percent and the Southern District of Mississippi's 80.7 percent. The 3rd Circuit averaged 46 percent with the lowest rate the Eastern District of Pennsylvania's 37.9 and the highest, the 68.6 in the Virgin Islands.
When judges stray from the guidelines, they are far more likely to go below them. Nationally, lesser sentences were meted out in 41.2 percent of cases, versus only 2 percent where they were greater.
Judges around the country were most likely adhere to the guidelines for simple possession drug cases (90 percent), burglaries (83.3) and prison offenses (70.8). They were least inclined to do so where the offense was kidnapping or hostage taking (31.7), national defense (33.3) and bribery (35.7).
Since Booker, the Court has held that when an appeals court reviews a sentence, it is limited to deciding only whether it was reasonable. A sentencing court must fully explain its reasons for sizable downward departures.
Douglas Berman, a law professor from Ohio State University's Moritz College of Law and the author of the Sentencing Law and Policy blog, says the Supreme Court has consistently upheld district judges' exercise of their post-Booker sentencing discretion.
Friday, April 23, 2010
Thursday, April 15, 2010
Does a drunken "yes" mean "yes"
The area of drunken consent in rape cases is a mine field where one needs to tread carefully. Pennsylvania Law is somewhat imprecise in this area (18 Pa.C.S. § 3121).
The classic definition of an alcohol induced blackout has the inebriated person acting relatively normally at a certain time, but the next day unable to remember anything concerning the period of time in question. Intoxication can result from ingestion of drugs or alcohol, but most of the case law in Pennsylvania seems to deal with alcohol intoxication. Is drunken consent real consent?
Young adults have beer parties, Jello shot parties, etcetera. For may young Americans, alcohol is the social lubricant. At what point must the healthy American male cease and desist from any attempt to have sex with a female who has been drinking? Let's face it most rapists are men and most victims of rape are women.
A complainant’s intoxication can impact consent in a rape trial in two possible ways. First, the complainant and the defendant could disagree about the fact or level of intoxication – i.e., capacity, so that the defendant claims either that the complainant was not drunk at all, or that she was not drunk to the degree that she was incapable of consenting but merely was disinhibited, and therefore she was in fact capable of, and did, consent. Second, there could be disagreement about whether or not there was consent – i.e., the defendant claims that the complainant gave consent, albeit drunken, and that she was capable even though intoxicated, whereas the complainant states that she cannot remember what happened because she was extremely drunk but that she knows that she did not want to have sex with the defendant (and she may also claim that she was too drunk to resist). The claim then could be either that she was not intoxicated (enough) and capable, or, that despite a high level of intoxication, she did consent.
What is consent? Is it a state of mind? Is it a set of actions or behaviors performed in a certain way? Is consent just an attitude formed in the mind of the consenter? Judges and juries have to deal with these issues every day in Pennsylvania. After the fact, they have to figure out through testimony and other evidence what version of reality to buy. A "yes" or a "no" is often interpreted by the actions of individuals. One court recently said that consent is not an attitude at all, "It is to act in a way that has conventional significance in communicating permission.” Inevitably, the issue turns on what the jury believes the complaining witness did or said to give the defendant permission to act.
Many feminists will not like some of the things we are saying here. They will argue that there is much ambivalence in a mental state, etcetera, etcetera. There is much controversy as of late on college campuses and many University codes are weighing in with their positions
Some local University sexual assault policies:
University of Pennsylvania
Assent shall not constitute consent if it is given by a person who because of youth, mental disability or intoxication is unable to make a reasonable judgment concerning the nature of or harmfulness of the activity. This policy applies to groups as well as individuals.
Drexel
Or cannot give consent (e.g. due to intoxication)
Temple
(c) Forcing, or attempting to force, any other person to engage in sexual activity
of any kind without her or his consent.
Consent is not considered given by a person when he/she is unable to make a
reasonable judgment concerning the nature or harmfulness of the activity because
of his or her intoxication, unconsciousness, mental deficiency or incapacity, or if
consent is the product of threat or coercion.
LaSalle
Don’t take advantage of someone’s drunkenness or drugged state.
Saint Joseph's University
There are situations when a person may be considered incapable of giving consent such as, if he/she is: asleep, unconscious and/or losing and regaining consciousness, or clearly mentally or physically incapacitated, for example, by alcohol and/or other drugs. A verbal "no" even if it may sound indecisive or insincere, constitutes lack of consent. Further, it is not necessary that an individual resist an attack or otherwise affirmatively express lack of consent.
Use of alcohol and/or other drugs shall not diminish one's responsibility to obtain consent. Being in an on-going relationship does not preclude the possibility of sexual misconduct occurring within that relationship.
Villanova
A man may also wrongly assume that a woman is automatically sexually “available” when there is alcohol involved. Sexual assault also may result from an assailant taking advantage of a woman’s diminished capacity to set limits or protect herself when she has been drinking.
The new standard seems to be to an attempt to reshuffle the concept of consent. Would it be a good idea to breathalyze rape victims to determine the level of their intoxication? Should we set a new standard for drunken sex as there is for drunken driving? In Britain, there is serious legislative movement towards doing just that.
This is complicated stuff to attempt to understand a woman's experience of sex when intoxicated, or a man's perception of a woman's intoxicated consent. It is safe to say that raging hormones and binge drinking don't mix well together.
The classic definition of an alcohol induced blackout has the inebriated person acting relatively normally at a certain time, but the next day unable to remember anything concerning the period of time in question. Intoxication can result from ingestion of drugs or alcohol, but most of the case law in Pennsylvania seems to deal with alcohol intoxication. Is drunken consent real consent?
Young adults have beer parties, Jello shot parties, etcetera. For may young Americans, alcohol is the social lubricant. At what point must the healthy American male cease and desist from any attempt to have sex with a female who has been drinking? Let's face it most rapists are men and most victims of rape are women.
A complainant’s intoxication can impact consent in a rape trial in two possible ways. First, the complainant and the defendant could disagree about the fact or level of intoxication – i.e., capacity, so that the defendant claims either that the complainant was not drunk at all, or that she was not drunk to the degree that she was incapable of consenting but merely was disinhibited, and therefore she was in fact capable of, and did, consent. Second, there could be disagreement about whether or not there was consent – i.e., the defendant claims that the complainant gave consent, albeit drunken, and that she was capable even though intoxicated, whereas the complainant states that she cannot remember what happened because she was extremely drunk but that she knows that she did not want to have sex with the defendant (and she may also claim that she was too drunk to resist). The claim then could be either that she was not intoxicated (enough) and capable, or, that despite a high level of intoxication, she did consent.
What is consent? Is it a state of mind? Is it a set of actions or behaviors performed in a certain way? Is consent just an attitude formed in the mind of the consenter? Judges and juries have to deal with these issues every day in Pennsylvania. After the fact, they have to figure out through testimony and other evidence what version of reality to buy. A "yes" or a "no" is often interpreted by the actions of individuals. One court recently said that consent is not an attitude at all, "It is to act in a way that has conventional significance in communicating permission.” Inevitably, the issue turns on what the jury believes the complaining witness did or said to give the defendant permission to act.
Many feminists will not like some of the things we are saying here. They will argue that there is much ambivalence in a mental state, etcetera, etcetera. There is much controversy as of late on college campuses and many University codes are weighing in with their positions
Some local University sexual assault policies:
University of Pennsylvania
Assent shall not constitute consent if it is given by a person who because of youth, mental disability or intoxication is unable to make a reasonable judgment concerning the nature of or harmfulness of the activity. This policy applies to groups as well as individuals.
Drexel
Or cannot give consent (e.g. due to intoxication)
Temple
(c) Forcing, or attempting to force, any other person to engage in sexual activity
of any kind without her or his consent.
Consent is not considered given by a person when he/she is unable to make a
reasonable judgment concerning the nature or harmfulness of the activity because
of his or her intoxication, unconsciousness, mental deficiency or incapacity, or if
consent is the product of threat or coercion.
LaSalle
Don’t take advantage of someone’s drunkenness or drugged state.
Saint Joseph's University
There are situations when a person may be considered incapable of giving consent such as, if he/she is: asleep, unconscious and/or losing and regaining consciousness, or clearly mentally or physically incapacitated, for example, by alcohol and/or other drugs. A verbal "no" even if it may sound indecisive or insincere, constitutes lack of consent. Further, it is not necessary that an individual resist an attack or otherwise affirmatively express lack of consent.
Use of alcohol and/or other drugs shall not diminish one's responsibility to obtain consent. Being in an on-going relationship does not preclude the possibility of sexual misconduct occurring within that relationship.
Villanova
A man may also wrongly assume that a woman is automatically sexually “available” when there is alcohol involved. Sexual assault also may result from an assailant taking advantage of a woman’s diminished capacity to set limits or protect herself when she has been drinking.
The new standard seems to be to an attempt to reshuffle the concept of consent. Would it be a good idea to breathalyze rape victims to determine the level of their intoxication? Should we set a new standard for drunken sex as there is for drunken driving? In Britain, there is serious legislative movement towards doing just that.
This is complicated stuff to attempt to understand a woman's experience of sex when intoxicated, or a man's perception of a woman's intoxicated consent. It is safe to say that raging hormones and binge drinking don't mix well together.
Tuesday, April 13, 2010
Prosecutor overload on SCOTUS
Merrick Garland is a possible candidate to replace Justice Stevens who has been a Judge on the District of Columbia Court of Appeals since 1997. Garland was once mentioned by D.C. insiders as a potential dark-horse candidate for attorney general. Garland is one of two candidates to replace Justice Stevens who have judicial experience (the other is Judge Diane Wood of The 7th U.S. Circuit Court of Appeals). Garland is generally considered a judicial moderate, which is a fact that will not endear him to liberals and those who fear the rightward shift in the Court's philosophy. He's almost certainly to the right of other possible nominees such as Wood and Kagan.
Garland has worked on and off for the Justice Department as an assistant U.S. attorney for the District of Columbia. He was promoted to deputy assistant attorney general in the Justice Department's criminal division in 1993 and became principal associate deputy U.S. attorney general in 1994, where he stayed until his court nomination. Garland is known for his management of the investigation of the 1995 bombing of the Oklahoma City federal building and subsequent prosecution of bomber Timothy McVeigh. His prior work under the Criminal Division of the Department of Justice could give him a pro-prosecution bias.
Many defense lawyers are opposed to another ex-prosecutor on the bench. Garland and Sotomayor have a clear law and order profile not sympathetic to criminal defendants
Thursday, March 25, 2010
They decided not to decide
In the first federal appeals court opinion on the subject of sexting, Miller v. Mitchell (United States Court of Appeals, Third Circuit No. 09-2144), a three judge panel of the Third Circuit has ruled that the children cannot be prosecuted for child pornography for photographs found on classmates cellphones. However, the court declined to address the elephant in the room, the First Amendment Right to Free Speech. Thus the question about whether obscene photos sent by juveniles are protected by the First Amendment has not been decided.
Their decision carefully avoids suggesting that distributing photographs of children is something that is protected by the First Amendment, while also carefully avoiding the suggestion that children under the age of 18 do not have the right to transmit these types of photographs or messages.
This case may put the issue of sexting among teenagers to rest for a while. However, it is only a matter of time before the issue of sexting arises again, and sooner or later the courts will have to consider whether or not this type of communication falls under the protection of the First Amendment.
Their decision carefully avoids suggesting that distributing photographs of children is something that is protected by the First Amendment, while also carefully avoiding the suggestion that children under the age of 18 do not have the right to transmit these types of photographs or messages.
This case may put the issue of sexting among teenagers to rest for a while. However, it is only a matter of time before the issue of sexting arises again, and sooner or later the courts will have to consider whether or not this type of communication falls under the protection of the First Amendment.
Tuesday, March 2, 2010
Goin' to the dawgs
Defense lawyers are waiting for the highly anticipated decision in United States v. Stevens (docket #: 08-769).
On Oct. 6, the justices heard oral arguments in the case, which examines the constitutionality of a federal law that criminalizes the production, sale or possession of depictions of animal cruelty produced for commercial gain. Congress passed the law after hearing about "crush videos," which feature women in high stilettos crushing small animals to death.
Federal prosecutors in Pennsylvania charged Robert Stevens, a pit bull afficionado, under federal law for three videos showing animals subjected to violence. They are likening the videos to child pornography, arguing that they have no social value that would justify constitutional protection. After a jury trial, Stevens was convicted, but the Third Circuit US Court of Appeals overturned that conviction.
At oral argument, Chief Justice John Roberts asked Neal Katyal, the Principal Deputy Solicitor General, who argued for the federal government in defense of the law: “If you could do it in one sentence, what is your test for determining which categories of speech are unprotected by the First Amendment?”
Katyal gave an unsatisfactory response after which Roberts answered his own question by quoting from New York v. Ferber, 458 U.S. 747 (1982) saying speech is unprotected when “the evil to be restricted so overwhelmingly outweighs the expressive interest at stake.”
It is possible that the Court will create another unprotected category of expression if it believes that the ill effects of the "speech" far outweigh the ill effects of the First Amendment interest. Stevens argues that his videos are about the "virtues" of pit bulls, arguing that they cannot be classified as "evil". His argument centers on the educational value of a dog fighting documentary.
Throughout the land there are laws that punish animal cruelty without punishing depictions of it. The third Circuit found that the government's interest in depicting animal cruelty does not rise to the same level as eradicating child pornography. Civil libertarians are worried about going down a slippery slope when you create another unprotected category. They argue that courts will begin to criminalize all sorts of violent expression, thereby endorsing the "violence as obscenity" concept.
On Oct. 6, the justices heard oral arguments in the case, which examines the constitutionality of a federal law that criminalizes the production, sale or possession of depictions of animal cruelty produced for commercial gain. Congress passed the law after hearing about "crush videos," which feature women in high stilettos crushing small animals to death.
Federal prosecutors in Pennsylvania charged Robert Stevens, a pit bull afficionado, under federal law for three videos showing animals subjected to violence. They are likening the videos to child pornography, arguing that they have no social value that would justify constitutional protection. After a jury trial, Stevens was convicted, but the Third Circuit US Court of Appeals overturned that conviction.
At oral argument, Chief Justice John Roberts asked Neal Katyal, the Principal Deputy Solicitor General, who argued for the federal government in defense of the law: “If you could do it in one sentence, what is your test for determining which categories of speech are unprotected by the First Amendment?”
Katyal gave an unsatisfactory response after which Roberts answered his own question by quoting from New York v. Ferber, 458 U.S. 747 (1982) saying speech is unprotected when “the evil to be restricted so overwhelmingly outweighs the expressive interest at stake.”
It is possible that the Court will create another unprotected category of expression if it believes that the ill effects of the "speech" far outweigh the ill effects of the First Amendment interest. Stevens argues that his videos are about the "virtues" of pit bulls, arguing that they cannot be classified as "evil". His argument centers on the educational value of a dog fighting documentary.
Throughout the land there are laws that punish animal cruelty without punishing depictions of it. The third Circuit found that the government's interest in depicting animal cruelty does not rise to the same level as eradicating child pornography. Civil libertarians are worried about going down a slippery slope when you create another unprotected category. They argue that courts will begin to criminalize all sorts of violent expression, thereby endorsing the "violence as obscenity" concept.
Wednesday, February 24, 2010
The Ambulance chaser's new practice!
Several enterprising lawyers have come up with a new scheme to make money from the "victims" in child pornography cases. James R. Marsh calls his new practice of suing people convicted of possessing child pornography "a lawyer's dream". These lawyers are demanding that everyone convicted of possessing even a single image of their client be responsible for the total damages, which runs as high as 3.4 million dollars in some cases. These questionable awards posing as "restitution" are spreading to all federal jurisdictions. These civil lawyers are claiming that every time an image is viewed, the child is victimized anew.
Mr. Marsh has requested that the federal government notify him every time any of his clients' pictures turn up in a child pornography prosecution. The Crime Victim's Rights Act of 2005 (Also known as the "Masha's Law" section of the Adam Walsh Child Protection Act) has a built in notification system. Mr. Marsh then intervenes in any federal prosecution and demands restitution. He sometimes appears at sentencing and presents a victim impact statement. He routinely has economists develop a tally of damages which includes counselling, diminished wages, potential mental health problems, and (of course) lawyers' fees. Mr. Marsh argues that each defendant is jointly and severally liable for all damages.
Mr. Marsh has automated the process and e-mails his client's filings to the United States Attorneys in 350 cases. He said, "I'm able to leverage the power of the Internet to get restitution for a victim of the Internet." Mr. Marsh has in effect expanded his small New York Law firm by deputizing thousands of federal prosecutors. He has received several "restitution" awards in excess of $100,000.
The reaction from the federal bench is mixed with some judges refusing to award restitution saying that the link between possession and the harm done is too tenuous to reach the level of "proximate harm" generally required under the law of restitution.
In addition to federal law, both Florida and Missouri are in the process of passing legislation that would entitle victims of child pornography to sue their offenders for $150,000 per image for possessing or distributing these images.
Mr. Marsh has requested that the federal government notify him every time any of his clients' pictures turn up in a child pornography prosecution. The Crime Victim's Rights Act of 2005 (Also known as the "Masha's Law" section of the Adam Walsh Child Protection Act) has a built in notification system. Mr. Marsh then intervenes in any federal prosecution and demands restitution. He sometimes appears at sentencing and presents a victim impact statement. He routinely has economists develop a tally of damages which includes counselling, diminished wages, potential mental health problems, and (of course) lawyers' fees. Mr. Marsh argues that each defendant is jointly and severally liable for all damages.
Mr. Marsh has automated the process and e-mails his client's filings to the United States Attorneys in 350 cases. He said, "I'm able to leverage the power of the Internet to get restitution for a victim of the Internet." Mr. Marsh has in effect expanded his small New York Law firm by deputizing thousands of federal prosecutors. He has received several "restitution" awards in excess of $100,000.
The reaction from the federal bench is mixed with some judges refusing to award restitution saying that the link between possession and the harm done is too tenuous to reach the level of "proximate harm" generally required under the law of restitution.
In addition to federal law, both Florida and Missouri are in the process of passing legislation that would entitle victims of child pornography to sue their offenders for $150,000 per image for possessing or distributing these images.
Friday, January 22, 2010
Child Sex Offender Sentencing Strategies
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.
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