Sex Offenders

Terminology

In discussing sex offenders, several distinctions are useful. The term “legal sex offender” refers to anyone convicted of a sex-related offense. The term “paraphiliac” refers to anyone considered to have a paraphilia, a category in the psychiatric Diagnostic and Statistical Manual (DSM) that refers to intense, recurring sexual urges and fantasies relating to children or other nonconsenting persons, specific body parts or nonhuman objects, or the suffering or humiliation of oneself or others. Not all “legal sex offenders” are paraphiliacs and not all paraphiliacs are legal sex offenders. The term “clinical sex offender” refers to those individuals whose offending is motivated by one or more paraphilias and who, in addition, may have other mental disorders or a personality disorder such as psychopathy.

Penal Policy

Sex offender policy has long been marked by differences of opinion as to whether sex offenders are primarily legal or clinical offenders and whether the primary emphasis in control should be on treatment, punishment or incapacitation. Historically, penal policy for sex offenders can usefully be discussed in terms of three major policy models: clinical, justice, and community protection.

The clinical model stresses the importance of diagnosis and prediction in order to determine which sex offenders are sufficiently mentally disordered that they require treatment and confinement for indeterminate periods in order to prevent them from offending. The sexual psychopath statutes enacted in 25 American states between the 1930s [Page 896]and 1960s typify the clinical model. These statutes permitted the indeterminate civil confinement of accused or convicted clinical offenders. Sexual psychopath statutes came under severe criticism during the 1960s and 1970s because of the absence of the procedural safeguards guaranteed to other accused and convicted offenders, the absence of effective treatment, and the failure to reduce recidivism.

By the 1980s, most of the sexual psychopath statutes had been abolished or considerably modified. Legislative reforms were based on a justice model with legally prescribed fixed penalties for offenses and due process guarantees for all offenders. One consequence of this policy shift was that some of the most serious sex offenders, who would likely have been civilly committed for long periods, had to be released after serving their sentences no matter how dangerous they were considered to be.

It was in this context that crime victim advocates and the public responded to a series of horrific predatory sexual offenses against children in the late 1980s and early 1990s. The highly publicized fate of child victims such as Jacob Wetterling, Megan Kanka, and Polly Klaas led an angry public to demand measures that prioritized community protection over treatment and just deserts. In 1990, Washington State passed its comprehensive Community Protection Act, establishing mandatory registration for all sex offenders, community notification based on assessments of risk, and postsentence civil commitment for those individuals found to be sexually violent predators. By the end of the 1990s, every state had passed legislation creating a sex offender registry (the Jacob Wetterling Law) and procedures for notifying communities of the whereabouts of sex offenders (Megan's Laws), and about 15 states had passed sexually violent predator laws. In addition, the federal government mandated the FBI to set up a national sex offender registry to link the registries of individual states and enable the tracking of sex offenders across state lines. Constitutional challenges to the Sexually Violent Predator Laws in Kansas and Washington were both defeated.

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