Why Marco’s Law Won’t Help Marco

(This article is based on a presentation given at the “National Conference on Child Abuse and Neglect” hosted by the Crisis Centre in Nassau, Bahamas, on 24th April, 2012)


Last November, the Crisis Centre hosted a one-day National Summit on Childhood Sexual Abuse (CSA). Stakeholders from different sectors of our society, such as representatives from the Social Services, Health Professions, Education and Law Enforcement, attended and engaged in lively discussion. This conference now affords us the opportunity to follow up on the discussion. I would like to thank the Crisis Centre for organising this event, which is so important for our society, and I would like to thank Dr. Sandra Dean Patterson for inviting me to share some of my thoughts on the current debate about a National Sex Offenders Register for The Bahamas.

In the current election campaign, at least one political party is proposing the creation of such a register under the slogan “Marco’s Law.” This article will approach the subject from a number of perspectives. First, I will address the possible functions served by such a register, focussing less on the viewpoint of government agencies, but rather taking the public expectations into consideration. This will be followed by highlighting the findings of select international studies and their analyses of commonly discussed reactions and responses to CSA, especially criminal justice approaches.

In a next step, I will share with you some statistical and polling data that I have collected in The Bahamas over the past months. I believe that this will allow us to discuss whether a National Sex Offenders Register can meet the expectations that the public may have. As is often the case, public discussion on serious issues tends to call for quick and simple answers. I will demonstrate this by analysing another recent poll, conducted internationally on a social media network.

In my conclusion, I attempt to tie these various aspects together, and hope to present some strategies for future consideration, as we as a nation try to tackle the problem of Childhood Sexual Abuse.

  1. Purpose of a National Sex Offenders Register

The purpose of a Sex Offenders Register is not defined by what it can actually do, but by what its creators would like it to do. For this purpose, I am showing you two quotes, one by an Australian non-governmental organisation (NGO) and one by the United States Department of Justice.

The Australian NGO in question calls itself MAKO, Movement Against Kindred Offenders. It operates a website listing over 1,500 sex offenders without any legal mandate. The information contained in this database is compiled by volunteer contributors, who require no special training. In fact, you can report people via e-mail. The purpose for doing so is not directly given on their website, rather it is implied in some of pseudo-factual claims it makes. Further, it alludes to a number of other myths surrounding the issue of CSA:

“Many thousands of convicted Paedophiles/Sex Offenders/Child Killers ‘already’ live in ‘unsuspecting’ … communities, including near schools/playgrounds etc… and they are likely to RE-OFFEND… The State/Federal government/s should be providing YOU with access to sex offender registries, letting you know, who and where they are.” (Movement Against Kindred Offenders.)

If one were to follow MAKO’s website, one ought to become very concerned, and would immediately recognise why their listings of sex offenders are helpful to the ordinary citizen: Sex offenders are portrayed as perverts who lurk behind every corner to prey upon random children in the vicinity. These people are apparently frequently caught, but dealt with too leniently by the authorities. Upon returning to civilian life, they are bound to reoffend, because you cannot cure their perversion. However, the Center for Sex Offenders Management (CSOM), an organisation created by the U.S. Department of Justice, sheds a different light on these claims and debunks many of them as myths, as will be demonstrated later.

Yet, while remaining even more vague than the Australian NGO about the purpose of their website, another agency of the U.S. Department of Justice offers its own public sex offenders register:

“The Dru Sjodin National Sex Offender Public Website (NSOPW) provides an opportunity for … an unprecedented public safety resource by sharing public sex offender data nationwide, working collaboratively for the safety of both adults and children. … Parents, employers, and other concerned residents can utilize the Website’s search tool as a safety resource to identify location information on sex offenders residing, working, and attending school not only in their own neighborhoods but in other nearby states and communities as well.” (U.S. Dept. of Justice.)

To see how the database worked, I entered the address of a friend of mine in the U.S., set the radius to one mile, and found myself looking at a screen listing no less than ten registered sex offenders in their neighbourhood. On this screen, I could now either click on symbols of houses displayed on a map, or scroll down for an alphabetical list of the offenders, and, by clicking on their names, I was given access to their personal information, their photo, vehicle information, court information, etc. They may as well walk around the street with a sign around their necks.

  1. Analysis of Criminal Justice Responses to CSA

In his examination of legislated initiatives aimed at preventing CSA, David Finkelhor, Director of the Crimes Against Children Research Center and Professor of Sociology at the University of New Hampshire, criticises that none of the high profile strategies – that are those most recognised by the public, such as Sex Offenders Registers – have “been built on empirical evaluation, and … have gone to the national scale without research or even much pilot testing. Several have been legislated and implemented over the objections of sex-offender management authorities. … they also appear to be creating many serious fiscal, bureaucratic and legal problems, as well as having other negative consequences.” (Finkelhor, p. 170.)

One major challenge any criminal justice response to CSA cannot overcome is the fact that the criminal justice system cannot respond to what is not reported. Most victims of CSA do not report the crime. The other major challenge the criminal justice system faces when responding to CSA is the political need to satisfy an electorate whose public discussion is largely not based on research findings, but on popular myths and misconceptions, such as the ones pointed out by a publication of the Center for Sex Offender Management.

  • Myth: “Most sexual assaults are committed by strangers.”
  • Fact: Most sexual assaults are committed by someone known to the victim or the victim’s family, regardless of whether the victim is a child or an adult.
  • “Approximately 60% of boys and 80% of girls who are sexually victimized are abused by someone known to the child or the child’s family (Lieb, Quinsey, and Berliner, 1998). / “Relatives, friends, baby-sitters, persons in positions of authority over the child, or persons who supervise children are more likely than strangers to commit a sexual assault.” (CSOM, p. 1.)
  • Myth: “The majority of sexual offenders are caught, convicted, and in prison.”
  • Fact: Only a fraction of those who commit sexual assault are apprehended and convicted for their crimes.
  • Many victims do not report the crime to the police; many do not even report it to friends or family members. Victims are more likely to report sexual crimes if the perpetrator is a stranger, but – as we have seen – more often than not, the crime is committed by a person known to the victim.
  • Myth: “Most sex offenders reoffend.”
  • Fact: Reconviction data suggest that this is not the case.
  • “It is noteworthy that recidivism rates for sex offenders are lower than for the general criminal population.” (CSOM, p. 3.) / “Child molesters are more likely to be educated and employed than other criminals, which …may help explain their relatively lower recidivism.” (Finkelhor, p. 172.)
  • Myth: “Treatment for sex offenders is ineffective.”
  • Fact: “Treatment programs can contribute to community safety because those who attend … are less likely to re-offend …” (CSOM, p. 5.)
  • Apart from treatment after-the-fact, which is nothing but a response to a crime that has already been committed, there are now, in fact, pilot projects such as the Prevention Project Dunkelfeld, which aims at targetting potential child molesters before they commit an offense. (Beier et al.)
  • Myth: “The cost of treating and managing sex offenders … is too high – they belong behind bars.”
  • Fact: “One year of intensive supervision and treatment … can range in cost between $5,000 and $15,000 … The average cost for incarcerating an offender is … approximately $22,000 per year, excluding treatment costs.” (CSOM, p. 6.)
  • These numbers are from the United States, similar figures for The Bahamas are currently unavailable.

As much of the public discussion is based on the myths I just recounted, one popular demand is for a National Sex Offenders Register, preferably one that is publicly accessible, for instance via the Internet. Finkelhor’s study, however, concludes that such a register may in fact be more likely to cause additional, rather than alleviate existing, problems. It is easy to see why it would be harder for a registered, publicly known sex offender to reintegrate into society after serving their sentence. Just ask yourself, “Would you hire them?”

This could then, create a boomerang effect caused by public stigmatisation. Some studies, for example, measure higher recidivism rates for registered sex offenders than for unregistered sex offenders, suggesting that the additional difficulty in finding housing or employment caused by public labelling may be a factor contributing to this phenomenon.

Registration is only one element of the criminal justice response affecting the time period post conviction. Others include community notification (which often goes hand in hand with registration), mandatory background checks, residency restrictions and the so-called “civil commitment” procedures, a euphemism which allow some persons to be held even after they served their sentence. Finkelhor concludes in his analysis that the “strongest justification [of criminal justice strategies] is that they are widely seen by the public as part of a system that holds people accountable for serious crimes and provides a measure of justice for victims and their families. Such justifications may even trump evidence eventually showing that the strategies fail to reduce risk.” (Finkelhor, p. 178.) Human Rights Watch is characterises these approaches as “punitive,” and suggests that serious efforts to prevent CSA from happening cannot rely on “one-size-fits-all laws.” (Human Rights Watch, p. 12.)

  1. Analysis of Survey Conducted in The Bahamas

This survey, which was conducted online, was designed to allow for a closer examination of certain respondent groups, while at all times guaranteeing the full anonymity of the participants. The objectives for it were as follows:

  • Demonstrate the prevalence of perpetrators known to the victim as opposed to perpetrators who are strangers.
  • Get an impression of the amount of CSA that remains unreported.
  • See if there is an indication on whether CSA has been increasing or decreasing over time.
  • Gauge the support among the Bahamian public for a National Sex Offenders Register.

A full list of the survey questions can be found at the end of this article. Some of the findings were as follows:

  • 28.3% of respondents reported that they were sexually abused as children.

     Image

  • Of those who were abused, 88.9% of respondents knew the perpetrator prior to the abuse. In most cases, these were family members, but also teachers, neighbours, sports coaches or family friends.

    Image

  • In only 12.9% of the cases of CSA, did the victim actually report the crime to family members.

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  • In only 3.2% of the cases of CSA, was the crime reported to the authorities. 96.8% of cases were not reported to the authorities and therefore do not show up in official crime statistics.

    Image

These numbers can be broken down further. If we look at cases, where the perpetrator was know to the victim, we see that they are less likely to be reported. Of these only 6.9% were reported to family members immediately – and none were reported to the authorities. Of the cases were the perpetrator was a stranger, 66.7% were reported to family members immediately, and 33.3% were reported to the authorities. This is most likely the main cause for the common misconception that the perpetrators are usually strangers lurking in dark corners, because only reported cases get media coverage, and “stranger rape” is much more likely to be reported. In the vast majority of CSA cases, however, the perpetrator is known to the victim; these cases are much less likely to be reported. If they are not reported, they do not get media coverage. If they do not get media coverage, they remain hidden from public awareness.

  • 0% of the cases in this study led to the perpetrator being convicted in a court of law.

    Image

The reported rates of CSA remained within the expected margin of error for all respondent age group from eighteen years of age to fifty years of age, indicating that contrary to popular belief there has not been a steady increase of CSA in The Bahamas over the years. However, data from current minors is missing, as this group was excluded from the survey, and there were too few respondents aged fifty or higher to make a statement about this group.

There is, without a doubt, an overwhelming public support for a National Sex Offenders Register. 83.1% of Bahamian respondents want to see this measure implemented (12.4% undecided, 4.5% against); 71.9% want this database to be publicly accessible (14.6% undecided, 13.5% against). Interestingly though, while victims of CSA still favour the creation of such a register, the support is measurably lower: 69.2% in favour, 23.1% undecided, 7.7% against.

  1. Implications for a National Sex Offenders Register
The results of this survey, while limited, show a few things:
  • Because CSA is hardly ever reported, a Sex Offenders Register would exclude most offenders.
  • Most perpetrators are known to the victim, usually in a capacity where they enjoy privileged access to the victim.
  • Both of the above points strongly suggest that a register would potentially create a false sense of security, and may in fact make people less vigilant.
  • Because of the low rate of reporting and prosecuting CSA, any possible deterrent effect remains questionable at best.

We have seen that for every case of CSA that is reported to the authorities, there are 30 that are not. Unfortunately, my sample size was too small to even come across a single case that led to a conviction of an offender. If this had been a data collection exercise to build a National Sex Offenders register, the register would now be empty. There would be zero sex offenders registered. If you looked at that kind of register, you would be forced to conclude that “It’s better in The Bahamas.”

  1. Facebook Poll and its Implications for a National Sex Offenders Register

A very simplistic online poll posted on the immensely popular social networking site Facebook, via the Causes application, highlights some clear trends and opinions amongst the general population. The question – that is, the only question – was, “Should sex offenders be allowed to use the Internet?” 90% of respondents said no, and this result is no surprise. As the report by Human Rights Watch remarks, “One of the things sex offenders know is what the world thinks of them.” (Human Rights Watch, p. 130.) And if they did not know before, they would after reading the comments posted underneath that online poll.

The result was predictable, but it may be necessary to point out that the question was about the Internet in general, not about social networking sites in particular. The pros and cons of this are discussed in an article by Tracy Clark-Flory on Salon.com.

What is new about polls in the age of social networking is that participants can not only comment on the subject matter, but most do so with their full name, and usually their profile picture, too. The vast majority of these emphasise the point made by Human Rights Watch, and I invite you to take a closer look at what it is people suggest, but I must warn you that you do so at your own risk.

The implications this seemingly global poll has for the question of a National Sex Offenders Register for The Bahamas are worth discussing, and I might add that there were Bahamian Facebook users commenting on the poll.  Anybody who follows the local news can see that there is a problem with violent crime in The Bahamas. Frequently, police statements about shootings or stabbings suggest that one frequent motive is revenge – revenge, often for other crimes committed that are, in fact, punishable according to the laws of our land.

However, the rule of law is being challenged. Not because Bahamians generally disagree with the laws we have on the books, but because many believe that the law is powerless, either because crimes are not solved, because criminals are not being punished to the fullest extent of the law, or because suspects are acquitted. If the law is being challenged on these grounds, whether this is fact or just the perception of some outspoken persons in the community, and the symptom is revenge crime, then we have, as a country, taken a step towards vigilante justice.

In this context I also find it interesting that many of the people commenting on Facebook explicitly mentioned that sex offenders, in their minds, forfeited any Human Rights. If you deny a person Human Rights, you are essentially delegating them to the level of an outlaw in a medieval legal context, and that means precisely that they would not be entitled to any protection from vigilante justice.

Now reflect on the sentiments expressed about sex offenders earlier, and add that to the mix. If people feel that our laws and the agencies enforcing them are letting people off too easily, I do not find it hard to imagine that publicly known sex offenders would in fact have to fear vigilante justice, be it in the form of lone ambushers or in the form of outright lynch mobs.

Also, as there is considerable doubt amongst the general public in our police and our justice system that criminals will be dealt with according to the law, what is to suggest that there is a different sentiment prevalent amongst potential or actual criminals? However, if criminals believe that the law will not be enforced, or in other words, that they will get away with the crimes they commit, then there really is not much of a deterrent factor measurable, no matter what the theoretical punishment for a crime might be.

  1. Conclusion: Alternative Strategies

As should be quite obvious by now, I do not think that a public National Sex Offenders Register for The Bahamas is a good idea, regardless of whether it is publicly accessible or not. Once an offender has served the sentence provided by the law, they deserve a second chance. If we do not believe this, we do not believe in rehabilitation. If we do not believe in rehabilitation, then we ought to, as a logical consequence, make all sentences for life.

A Sex Offenders Register in The Bahamas would, I believe, have a very negative impact on society, because, more than other, larger countries, we are in many ways still a face-to-face society, and because we currently lack faith in our criminal justice system. These two factors combined seriously increase the risk of vigilante justice as described above.

Even if my fears of vigilante justice were proven wrong, Finkelhor’s study suggests a boomerang effect, which would likely increase in a face-to-face society such as ours. Any measure that may lead to higher rates of reoffending need to be carefully researched before being implemented, and the body of research available for the particular situation in The Bahamas is still negligible.

Furthermore, even if we disregards the question of convicted sex offenders reoffending, the next question that must be asked, is whether such a register might have a deterrent effect on new, would-be offenders. We currently lack international studies that conclusively show Sex Offenders Registers having a measurable deterrent effect. While there are jurisdictions with such registers where sex offenses have decreased, it has also been noted that the decrease is only a continued trend that began before the introduction of said registers. In our situation, where the conviction rate is as low as it is, the deterrent effect has to be seriously questioned.

Finally, I see one more major problem a Sex Offenders Register could create. It would lull us into a false sense of security. As we have seen, most cases of CSA remain unreported. Of those that are reported, few lead to convictions. A National Sex Offenders Register would be no more than the proverbial tip of the iceberg. However, many unsuspecting parents would then falsely believe that, through access to a National Sex Offenders Register, they would know where the dangers lurk. Such a register would run the risk of making us less careful, less vigilant in our behaviour, our upbringing of our children. By the time we find out, if we ever find out, that we were mistaken, it is too late.

For all these reasons, what some politicians currently propose as “Marco’s Law,” won’t help Marco. A National Sex Offenders Register seems a poor tool in preventing abuse as well as a questionable punishment. Most importantly, it cannot undo what happened to Marco Archer.

The strongest case I could make in favour of a National Sex Offenders Register is the wide public support this proposal enjoys. I would not be a good democrat if I opposed it. Or would I? Well, a truly democratic society must always remember that decisions must be made in the best interest of all citizens, and that majority decisions must protect – not violate – the rights of minorities, the legitimate concerns of dissenters. I believe that I have shown that a National Sex Offenders Register would not be beneficial to society as a whole, would potentially violate the right to rehabilitation, and would also potentially create additional problems. With that in mind, maybe a popular majority needs to surrender to reason.

I would like to end on a less pessimistic note, and suggest some alternative strategies. They are not easy fixes, and they are not cheap for they require substantial investment in our human resources in the widest sense. They consist of multiple measures, and none of them can stand alone. Instead, we need a multi-pronged approach:

  1. Education – of Teachers, Children and Parents: Increased awareness may help prevent some occurrences of CSA, and has been linked to increased reporting of CSA. Increased reporting may in fact work as a deterrent. Increased awareness has also been linked in studies to slighly decreased rates of CSA, as children with the right kind of education are more likely to resist the attempts of an offender, who is then more likely to back down. Their biggest advantage is the victim’s fear to speak up; this advantage would be diminished.

  2. Detection Training – of Law Enforcement, Medical Professions, Teachers: If other professionals recognise signs of CSA earlier, it would enable them to help victims and prosecute offenders, even if victims do not dare speak up on their own.

  3. Special Units – in Law Enforcement and Social Services: Currently, many victims choose to remain silent for fear of becoming a victim all over again, if they report the crime. Be it while being medically examined, questioned by police, or giving testimony in court. Special units, trained and equipped to deal with CSA can make this long road from reporting crime to convicting the perpetrator less traumatising for the victims and their families than it is at the moment. International pilot projects exist and have yielded promising results.

  4. Partnerships – with Childrens Organisations, Women’s Organisations, Animal Rights Groups: Unlikely allies can, in fact, help pick up on warning signs early on. Animal abuse, for instance, is regularly reported, and has been linked in international as well as Bahamian studies with increased rates of domestic violence. Social services could monitor homes where animal abuse has been reported more closely for signs of other abuse.

  5. Mobilisation – of Bystanders: This has proven helpful elsewhere. Even if perpetrators do not change their behaviour, and victims do not dare to speak up, bystanders, who at the moment too often turn a blind eye, can help. One may also consider threatening such bystanders with harsher punishments, as the threat of punishment has a greater deterrent factor on otherwise law abiding members of society than on would-be offenders.

  6. Treatment – of both Past Offenders, as well as Would-Be Offenders: This too has yielded some promising results elsewhere. It is going to be a very unpopular sell to a public that largely wants a register, rather than investments in offenders, even if, as I believe I have shown, we demand the register for all the wrong reasons.

    Bibliography


Appendix – Survey on Child Sexual Abuse in The Bahamas

1. What is you gender?

  • Female
  • Male

2. What is your age?

  • 18-21 years
  • 22-30 years
  • 31-40 years
  • 41-50 years
  • 51-60 years
  • 60 years or older

 3. Where do you currently reside?

  • The Bahamas
  • Other Caribbean Country
  • North America
  • South America
  • Africa
  • Europe
  • Asia
  • Other

4. Were you sexually abused by an adult when you were 15 years of age or younger?

  • No
  • Yes

5. If you were a victim of child sexual abuse, where did this occur?

  • The Bahamas
  • Other Caribbean Country
  • North America
  • South America
  • Africa
  • Europe
  • Asia
  • Other

6. How old were you, when this sexual abuse occurred?

  • 8 years or younger
  • 9-10 years
  • 11-12 years
  • 13-15 years
  • I don’t remember.

7. Was the perpetrator who sexually abused you male or female?

  • Female
  • Male
  • Don’t Know / Other

8. Did you know the perpetrator prior to the sexual abuse?

  • No
  • Yes
  • Don’t Know (e.g. “Could not see the perpetrator.”)

9. If you knew the perpetrator prior to the abuse, was it a…

  • Family member living in the same household as you
  • Family member living in a different household
  • Friend
  • Family friend
  • Neighbour
  • Teacher, Tutor, or Sports Coach
  • Other

10. As far as you know, had the perpetrator been convicted, in a court of law, for child sexual abuse prior to abusing you?

  • Yes
  • No

11. Did you report the sexual abuse to a family member or friend?

  • No
  • Yes, immediately.
  • Yes, within a few days.
  • Yes, within a few months.
  • Yes, within a few years.
  • Yes, but only once I was an adult.

12. Did you, or anybody else, report the sexual abuse to the police or any other official authority (e.g. Crisis Centre, hospital)?

  • No
  • Yes
  • Don’t Know

13. Was the perpetrator convicted, in a court of law, for sexually abusing you?

  • No
  • Yes
  • Don’t Know

14. As far as you know, did the perpetrator sexually abuse other children after sexually abusing you?

  • No
  • Yes

15. Was the perpetrator convicted for a case of sexual child abuse committed after they had sexually abused you?

  • No
  • Yes
  • Don’t Know

16. Are you in favour of a National Sex Offenders Register?

  • No
  • Yes
  • Undecided

17. If there was a National Sex Offenders Register, should the information be publicly accessible, e.g. via the Internet?

  • No
  • Yes
  • Undecided

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