December 2009, Page 12

Sexual Offenders: How to Create a More Deliberative Sentencing Process
By Ian Friedman; Roger Pimentel; Kristina W. Supler; Weiss;

The past decade brought about an escalation of media and cultural focus on the problems of Internet child exploitation and online sexual predators. Indiscriminate fear and perceptible public anger towards sexual offenders have been fueled by the speed and intensity in which this topic has become a hot-button concern. The widespread interest in this issue perpetuates a cycle of sensational and inflammatory reporting that ultimately undermines the common goal shared by all — the protection of the community. For example, virtually every American is familiar with the controversial Dateline NBC reality series “To Catch A Predator,” wherein men engage in sexual chats with purported minors and make arrangements to meet at a home where hidden cameras and law enforcement officers lie in wait.1 In part due to the manner in which sexual offenders have been portrayed by the media, the increasingly popular notion of “lock ’em up and throw away the key” has taken hold among members of the general public. This attitude has begun to influence the criminal justice system and, in many instances, likely encourages unduly punitive sentences for noncontact sexual offenders.

Sentences aimed at punishment without an understanding of the different types of sexual offenders and their potential for successful treatment fail to promote the goals of sentencing set forth in 18 U.S.C. § 3553(a). Just as the circumstances, psychology, and motivation of a recently unemployed man caught stealing food to feed his family vary significantly from someone whose similar actions are taken to service a long-term drug habit, so differ the situation, psychological make-up, and internal reasoning of each sexual offender appearing before a court of law. Two individuals arrested separately for similar child pornography-related crimes may have downloaded and/or shared similar types and amounts of illegal images, but for each there likely exist multiple and differing reasons both internal and external why they chose to offend in this way. This information is vital because it provides direction in formulating a defense and achieving appropriate adjudication.

By combining the insights of lawyers, a sexual disorders specialist, and a federal pretrial services officer, this article examines the treatment of sexual offenders by the federal justice system and endeavors to provide reliable information about the management and rehabilitation of sexual offenders. The first section discusses the penalties for Internet child pornography offenses and the legal and political justifications frequently presented in support of harsh sentences. Next, the article provides an overview of sexual offenders by type, discussion of how treatment methods can be a useful alternative or addition to incarceration, and information regarding reasonable expectations of treatment. Lastly, the article examines monitoring and placement options for legal practitioners to consider for purposes of sentencing.


Sentences Imposed for Noncontact Offenses
As a result of the concomitant increase in Internet connectivity and federal funding to law enforcement agencies tasked with the important duty of preventing child exploitation, federal courts have experienced a surge in Internet child pornography and obscenity prosecutions, as well as prosecutions aimed at sexual abusers. While the penalties for obscenity offenses are typically less severe,2 child pornography penalties are more startling. For example, from 1994 to 2007, the mean sentence in federal child pornography cases rose from 36 months of incarceration to 110 months.3 In large part, particularly in the realm of child pornography sentencing, the U.S. Sentencing Guidelines calculations for these types of offenses skyrocketed as a result of direct legislative amendments to the guidelines.4 Arguably, these amendments are rooted in response to the public outcry surrounding sexual offenders.

Legal and political justifications advanced in support of extended sentences for noncontact sexual offenders are varied. Some arguments are general and focus on the public safety and the threat posed to the community by predators. Other arguments are more specific and respond to the distinct danger presented by Internet offenses. The all-purpose explanations for lengthy periods of incarceration for child pornography offenses focus on deterrence and the serious nature of the offense. Proponents argue that longer periods of incarceration will send the message that these offenses will not be tolerated.

Sentencing rationales specific to Internet child pornography offenses include the ongoing harm inflicted upon a child victim by each additional viewing of the image of child pornography and the belief that trading images of child pornography fuels the market demand for such images, and thus, the exploitation of children.5 Another explanation for steep sentences incorporates recognition of the fact that the spread of the Internet enables predators to prey on children more easily while simultaneously avoiding detection by law enforcement officers. Lastly, extended child pornography sentences are often rooted in the unproven fear that viewing child pornography is a harbinger to committing contact sexual offenses, if such offenses have not already occurred. In support of this argument, prosecutors periodically advance the dubious findings of an ideological study entitled “The ‘Butner Study’ Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders” (The Butner Study), which concludes that Internet child pornography collectors are likely to have committed undisclosed hands-on sexual offenses against children.6

The Butner Study examined 155 men convicted of possession, receipt, or distribution of child pornography in order to determine whether these individuals were simply collectors of child pornography or whether they had perpetrated previously undetected hands-on sexual offenses against children.7 Study participants consisted of volunteers who simultaneously participated in an 18-month intensive residential sex offender treatment program.8 Bureau of Prisons records such as presentence investigation reports and psychosexual history questionnaires, in addition to self-reporting by participants, provided the data for the study.9

It is important for practitioners to distinguish between the published and unpublished versions of the Butner Study. An unpublished version of this study has circulated for years within the legal community. In United States v. Johnson, a Southern District of Iowa sentencing court systematically dismantled the unpublished Butner Study.10 The court’s criticism focused on the fact that the Butner Study was nonscientific, not peer reviewed, and fundamentally flawed in design given the absence of a randomly chosen population as well as a questionnaire not tested for its ability to produce accurate results.11 In the recently published and peer-reviewed version of the Butner Study, the authors acknowledge the study’s limitations, but they do not concede any methodological flaws. Though publication of the Butner Study causes concern, it also affords a greater opportunity for clinicians to replicate the study and challenge its validity.

Despite the absence of clinical literature in direct response to the published Butner Study, legal practitioners may still raise several critical points when confronted with this study.12 Warranting great deliberation is the observation that “the vast majority of the participants in [the] treatment program report that they committed acts of hands-on abuse prior to seeking child pornography via the Internet.”13 For this reason, the study does not definitively define the causal relationship between viewing child pornography on the Internet and subsequently committing a contact sexual offense.

The published Butner Study further acknowledges that it remains unknown whether “child pornographers who self-select for treatment differ from offenders with similar offenses who decline to participate in treatment.”14 Specifically, it stands undetermined if those who seek treatment are more or less likely to have engaged in a contact offense. Another concern that one cannot overlook is the possible incentive for false reporting among a population sample based exclusively of federal inmates.15 Lastly, the potential predisposition in any clinical sexual offender research co-authored by a U.S. Marshall cannot be disregarded.16

More reliable research relevant to the material propagated by the Butner Study is gaining attention in the legal community. In a 2005 study entitled “The Future Offending of Child Pornography Offenders” conducted by Michael C. Seto and Angela W. Eke, researchers followed 201 previously convicted child pornography offenders.17 In Pedophilia and Sexual Offending Against Children, a subsequent book commenting upon the study, Seto stated, “If one takes into account both prior and current offenses, child pornography offenders with no other forms of criminal involvement were the least likely to commit future offenses.”18 He indicated that both recidivism and/or escalation in the child pornography offender population were relatively predictable with a history of prior criminal offenses being the most reliable indicator.19 Importantly, however, Seto noted that “no research has been conducted to determine what effect child pornography use might have on the likelihood of subsequently having sexual contact with a child.”20 One concern regarding current sexual offender research and treatment studies is that, to date, nearly all available research has been conducted on prison populations; thus, like the Butner Study, the sample from which most of this data originates is inherently biased.21

Responding to a growing body of research, sentencing courts have begun to examine more closely the differences among offenders and the empirical data — or lack thereof — underlying the relevant guidelines calculations. The consequence has been an increase in sentencing opinions recognizing a spectrum of culpability. Troubling, nonetheless, is a persistent lack of understanding of what motivates different kinds of sexual offenders. Deficient knowledge combined with an often politically motivated agenda of “better to lock ’em up than chance recidivism” breeds the kind of “they’re all alike” beliefs that shape a majority of child pornography sentences. Fortunately, as practitioners begin to present sentencing courts with mitigation addressing the different types of sexual offenders and relevant mental health information regarding recidivism, sentencing courts are beginning to recognize the importance of psychological treatment aimed at containing and preventing future sexual offenses.

The sentence imposed in United States v. McDonald, a case before the U.S. District Court for the District of Massachusetts, illustrates a court’s recognition of the importance of rehabilitative efforts. A student at the Western New England Law School, the defendant in McDonald was a 25-year-old male who had struggled with a compulsive and addictive use of online pornography since his teen years.22 As an outgrowth of his addiction, he used peer-to-peer file sharing software to amass child pornography images. Following execution of the search warrant in connection with his prosecution, the defendant began receiving mental health treatment for his sexual behavior and attending 12-step meetings focused on problem sexual behavior.23 Ultimately, the defendant entered a guilty plea to one count of possession of child pornography and received a sentence of five years of probation, including 12 months in a community corrections center.

In support of its sentence outside of the advisory guidelines range, the court explained that the defendant demonstrated a “dramatic level of acceptance of responsibility” and had an “unusually high likelihood of rehabilitation and unusually strong support network.”24 Noting that the defendant did not have a primary sexual interest in children, the court concluded that the defendant presented “a much less significant danger to the community.”25 The McDonald case demonstrates the growing importance of presenting a sentencing court with psychological and psychosexual information for consideration.


Understanding the Different Types of Offenders and Treatment Methods
What is lacking in the lively debate about sexual offenders — both within the criminal justice system and among members of the general public — is adequate differentiation between the man who uses child pornography to feed his pedophilic attraction to children, but who does not act on his arousal fantasies, versus a man with similar arousal patterns who engages in child contact offenses. Also requiring consideration is an individual whose addictive relationship with pornography escalates into the viewing of illegal imagery, but who is unlikely to seek out sexual contact with an underage partner. To accommodate such variations in motivation and behavior, participants in the legal system need to recognize that: (1) there are men with strong (even primary) sexual attraction to pre- and post-pubescent children, but who also have enough awareness and emotional connection to the social and legal consequences of their attraction not to act on these feelings beyond the viewing of illegal images;26 and (2) there are men who are primarily or solely aroused by sex with adults whose involvement with child pornography represents an escalation of longstanding problems with sexual addiction.27 Additionally, the determination that children sexually arouse an individual should not be used as a sole predictor of recidivism. Equally important in an accurate determination of the risk of repeat offending is an individual’s tendency towards antisocial and criminal behavior.28

A strong effort must be made to differentiate among types of offenders by obtaining pertinent psychological and psychosexual information when such cases are adjudicated.29 Nearly all sexual offenders can be accurately evaluated for their specific sexual arousal patterns, impulse control, psychopathy, motivation, and capacity to respond to appropriate treatment.30 When the results of such evaluations are carefully weighed and integrated into legal dispensation, recidivism may be reduced and more meaningful punishments imposed. From a legal perspective, the goal of psychosexual evaluations is to assist participants in the legal system in understanding who is (and who is not) most likely to respond to treatment as opposed to incarceration, monitoring, or some combination.


Psychosexual Evaluations
Psychosexual evaluations provide an excellent foundation upon which practitioners, judges, and probation officers can develop an appropriate sentencing disposition for sexual offenders. A well-written psychosexual evaluation can reduce the risk that two individuals who have offended in a similar manner — but who have different motivations, sexual arousal patterns, and most importantly differing potential to repeat the offense — are adjudicated in the same manner.

In order for a psychological professional to gain an accurate overview of the individual being evaluated, the professional will require comprehensive information. The evaluator will require the following: (1) full support and transparency from the referral source; (2) full documentation of all current and past reported concerns when available, including police reports and victim accounts; and (3) collateral information — as needed — consisting of interviews with the offender’s family members or others close to the offender. During this information exchange, the evaluator will advise the sexual offender that his honesty and cooperation are part of what is being gauged.

Once the psychosexual evaluation is completed, the resulting report will present a wide range of information regarding the sexual offender. A well-organized and researched report will detail the individual’s general psychological functioning, sexual and relationship history, as well as family and social history, both past and present. Included in this section should be a discussion of the offender’s psychological, physical, and sexual trauma history, which is often present in these individuals. Additionally, it is paramount for the report to address the defendant’s sexual arousal patterns and deviancy, which are often tested via a penile plethysmograph as well as by interview and questionnaire. Any related mental health and addiction concerns should also be discussed because this information may constitute relevant mitigation evidence for courts and legal practitioners to consider.

The purview of mental health concerns may include discussion of the sexual offender’s personality type and sociopathy, if present.31 This section of the evaluation may explore whether the offender is capable of remorse and whether the remorse is genuine or manufactured.32 Lastly, the report will likely include commentary regarding the honesty of the sexual offender’s reporting. Honesty may be determined by polygraph testing.

While the specific content of a psychosexual evaluation may vary depending upon the evaluator, the goal of such an evaluation is to provide four categories of information: (1) a full picture of past, current, and potential sexual acting out concerns; (2) guidelines for treatment and/or incarceration (if useful); (3) guidelines for potential return to work, home, and community; and (4) potential hazards for return to home or community.

Ultimately, regardless of how meticulously a psychosexual evaluation is prepared, it is not useful unless the information contained within it is accurately understood by the reader and then precisely portrayed to the court. Emotion-fueled negative public sentiment, along with media and political misrepresentation, has left certain language used to depict the psychology of child sexual offenders with dual meanings, which can provoke unintended reactions or be misleading. When working on behalf of sexual offenders, one must fully comprehend the salient points within the diagnosis and also be prepared to anticipate the negative, often mistaken preconceptions about offenders. In order to effectively convey relevant points within a diagnosis, a practitioner is well-served by an understanding of the general categories of child sexual offenders and the kinds of treatment most likely to be useful for them.


Types of Child Sexual Offenders33
The first type of child sexual offender is referred to as the violent offender. Violent child offenders make up the smallest percentage of all child offenders; their population is estimated at five percent or less. They engage in hostile acts toward children such as child-rape, bizarre ritualistic sexual behavior, and murder. This type of offender is the “snatch and grab” type of offender whose actions unfortunately represent what most people think about when they hear the term sexual offender. Unless their actions were singular and carried out under the influence of drugs or during a period of psychosis without medication, violent offenders most often require long-term, if not permanent, incarceration and monitoring. Typically, few treatment solutions serve this type of offender due to his psychopathy and drive toward aggression.

Regressed or situational child sexual offenders are the second type, and this population makes up the majority of all child offenders. Approximately 80 percent or more of all child sexual offenders can be categorized as regressed or situational. They are the most likely to appear in a court of law and also the most likely to benefit from sexual offender treatment.

A situational/regressed type harbors an enduring sexual orientation and social interest toward his own age group, rarely demonstrating sexual interest in children or teens until adult life. Intact intellectually and often socially as well, this type of offender falls among all ages, races, and social classes. He may enjoy a successful career and family life, most often not offending until presented with specific life stressors or situations that introduce the circumstances for an offense to occur. His offending can be seen as a maladaptive attempt to cope with life stressors, relationship conflicts, or losses. Often married or in a primary relationship, the situational offender’s sexual interest in children is temporary and/or opportunistic. The regressed offender’s behavior is episodic, tending to wax and wane depending on exposure to emotional stressors (job loss, financial stress), involvement with hyper-stimulating sexual material (Internet pornography, strip clubs), or repeated opportunities to offend.

It is not unusual for a regressed/sit-uational 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 a dedicated or fixated type. This type of offender is sexually orientated toward pre- and/or post-pubescent children. Much as a heterosexual person is aroused by opposite-sex adults and a homosexual person is aroused by same-sex adults, fixated pedophiles are primarily or solely aroused by pre-pubescent children. Those solely aroused by post-pubescent children are labeled ephebophiles. Fixated pedophiles and ephebophiles have little genuine interest in having sex with adults (male or female), nor do they for the most part find adults to be sexually arousing, hence the term fixated or dedicated. Not surprisingly, this type of offender might choose a job that offers consistent access to children. A fixated or dedicated type of offender seeks 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.

Fixated offenders remain difficult to treat and have some of the highest rates of recidivism. If the fixated offender is willing, hormone reducing and other medications can be utilized toward lowering sexual drive and desire. Behavioral avoidance therapy can be helpful on a case-by-case basis. Even if provided extensive treatment, a fixated offender is unlikely to develop interest in adult-oriented sexual patterns. At best, the fixated offender will simply learn ways to avoid child sexual contact and arousal. This type of offender should be required to register and be monitored for behavioral appropriateness over time.

Another category of child sexual offender is the developmentally delayed or mentally disturbed child offender. This type of child offender is disabled in a manner that significantly affects his judgment and reasoning. Though he may sexually offend a child, his actions are often more reflective of his disability than an actual sexual focus toward children. For example, if a 23-year-old developmentally disabled man who has the mental and social ability of an 8-year old, but the sexual drive and physicality of an adult male, expresses sexual desire toward a 10-year-old neighborhood girl who is nice to him, one must inquire as to whether his attraction is pathological. While treatment and containment are clearly indicated, the man is not likely a pedophile, as he desires to be sexual with adults. The man will need treatment and guidance toward improving his social skills and understanding of healthy adult sexuality, but sexual offender treatment per se is not likely indicated. Caution should be used when determining what kind of treatment or containment might best serve this type of individual.

The final category is the sexually addicted offender. This category is the least researched and remains somewhat controversial. Until recently, the emphasis of most child sexual offender research evaluation and treatment had been directed solely toward the offending behavior itself. Today, most researchers and clinicians incorporate a broader focus, one that considers the entire range of an offender’s sexual behavior and arousal patterns. This shift, along with an Internet-driven increase in compulsive pornography and Web-based sexual hookups, has sparked an interest in evolving a category of offender that is defined by the individual’s addictive and compulsive patterns of nonoffending sexual behavior. Treatment providers are seeing increasing numbers of sexual offenders who engage in nonoffending sexual behaviors that can be defined as compulsive, addictive, or fetishistic. Examples of such behavior include compulsive masturbation with or without pornography use, use of prostitutes or escorts, repetitive extramarital affairs, and frequent anonymous sexual experiences.

Sexual addiction likely affects a much larger percentage of the general population than does sexual offending. Some research estimates that as much as 3-5 percent of the general population may have an active sexual addiction problem. But unlike offenders, sexual addicts most often have no direct victims. Furthermore, their repetitive sexual behaviors, when involving other people, are nearly always consensual. A behavioral or process addiction that most closely resembles compulsive eating or gambling, sexual addiction is characterized by the following stages: (1) a loss of control over the sexual behavior(s); (2) escalation of the sexual behavior(s) either in time spent doing it or the type of activity; (3) irritability or anger if asked to stop the sexual behavior; (4) negative consequences such as serious relationship, career, or legal problems directly related to the sexual behavior; and (5) continued sexual acting out despite prior or ongoing negative consequences directly related to it. Treatment for sexual addicts who have not escalated into offending behavior often involves 12-step support and outpatient cognitive-behaviorally based group and individual therapy.


Sentencing and Monitoring Options
An unbiased and scientific understanding of the various types of sexual offenders and the information relevant to their treatment and management better prepares legal practitioners to present creative sentencing proposals to judges. Because the outcry for accountability and maximum penalties in these cases often overshadows the importance of tempered sentences, defense attorneys must be ready to counter such demands with carefully planned, viable alternative sentencing plans that emphasize community safety and behavioral management. Although incarceration may be a foregone conclusion in many instances, a practitioner must still pursue appropriate placement options and complete alternative sentencing plans. Alternative sentencing plans often include the use of a mitigated custody sanction with an appropriate Bureau of Prisons placement, which may include in-custody treatment, a post-release treatment plan, and a post-release supervision plan.


Treatment Options At BOP Facilities
Pursuant to the directive of 18 U.S.C. § 3621(f)(2), the Bureau of Prisons (BOP) must make available sexual offender programs within each of its regions.34 In compliance with the statutory mandate, the BOP created sexual offender programs at six locations: USP Marion (a medium-level facility in Illinois); FCI Marianna (a medium-level facility in Florida); FCI Petersburg (a low-level facility in Virginia); USP Tucson (a high-level facility in Arizona); FCI Seagoville (a low-level facility in Texas); and FMC Devens (a low-level medical facility in Massachusetts). Each of these facilities offers a Sex Offender Management Program and a Sex Offender Treatment Program.

The Sex Offender Management Program (SOMP) is a correctional management program.35 While the goal of this program is not treatment per se, the program seeks “to provide appropriate treatment, monitoring, and supervision of sexual offenders and to provide aftercare during pre-release custody.”36 This program model is directed towards low to moderate security risk inmates with a Public Safety Factor of Sex Offender pursuant to Bureau of Prisons Program Statement 5100.08.37 Program assignment requires mandatory participation, and inmates remain in the program until their release from incarceration.38 Sexual offenders who participate in this program retain limited privacy. For example, the standard doctor-patient confidentiality relationship does not exist and information may be shared with law enforcement officials on a “need to know” basis.39 Furthermore, participants’ use of mail and the telephone is closely monitored.40 At the conclusion of a participant’s period of incarceration, a summary of treatment records is provided to the U.S. probation officer who will be supervising the inmate in the community.41

The Sex Offender Treatment Program (SOTP) is a voluntary treatment program for sexual offenders. Placement into this moderate-level program is based on an actuarial risk assessment tool administered by the BOP staff. Designees who volunteer for this program generally participate in sex offender specific group counseling that occurs twice weekly. Participants can successfully complete the program within nine to 12 months. This program is available at the same facilities that provide a SOMP.

A more intensive variation of the SOTP is the Sex Offender Treatment Program-Residential (SOTP-R). Admission into this voluntary program requires at least a 36-month prison commitment although most participants complete the residential phase of the program in 12 to 18 months.42 A recommendation from the sentencing court is generally useful for program placement. This therapeutic community program, located exclusively at FMC Devens, is the most intensive sex offender treatment program available within the Bureau of Prisons. The program places particular emphasis on cognitive behavioral therapy, correcting distortions in thinking, victim empathy, acceptance of responsibility, and management of deviant thoughts and urges.43 Treatment opportunities available through the SOTP-R include psychological testing, therapeutic groups, treatment community meetings, treatment team meetings, and individual counseling.44

Because the benefits of sex offender treatment are well-documented,45 most sentences for child pornography offenses require ongoing sex offender treatment as a condition of supervised release. It is important to recognize that the use of outpatient sex offender specific treatment in conjunction with limited custody, a halfway house, or home detention may be a palatable alternative for a sentencing court to consider. The end result of such a plan will translate into a smoother transition and re-entry into the community for the offender, reunification with family members, and timely entry into therapeutic treatment, all at significant financial savings over longer prison terms.


Electronic Monitoring as An Alternative to Detention
Over the past several years, the landscape of community corrections has evolved in its use of technology with sexual offenders. Electronic monitoring is a general term that includes a wide range of hardware and software systems provided by a growing field of vendors. Global positioning satellite (GPS) tracking systems and voice verification systems are now common among probation and pretrial offices throughout the country. These tools provide more structure, control, and monitoring of an offender for supervision professionals. Ironically, these same remedies may provide any given sentencing court the confidence to release an offender early into a halfway house, a home confinement program, or outright release to the community.

The use of GPS tracking devices with sex offenders has become increasingly popular. Use of tracking devices has been identified as a primary factor in alleviating prison and jail overcrowding in certain regions throughout the country.46 At minimal expense to the offender, GPS technology allows for continuous tracking and immediate notification of violations. This technology also facilitates offenders’ reintegration into the community in a timely manner. By means of GPS monitoring, offenders may safely be permitted to maintain employment, enter into counseling, or return to school.

Voice verification systems are also a valuable component of many electronic monitoring programs. During enrollment, an offender’s voice is recorded as an electronic “voice print” and stored for future listening. Offenders may be required to call a monitoring center at set times or may be randomly prompted to call in and provide personal data. During each call, the voice verification system determines whether the caller’s voice matches the voiceprint on file. The system may even analyze background sounds to determine the offender’s location. This technology is most useful for offenders with curfews who do not require GPS monitoring. Providing an additional means of monitoring an offender’s re-entry into the community, voice verification is gaining popularity.


Conclusion
As the Internet continues to play an increasingly vital role in day-to-day life, nightly news stories will continue to fuel persistent misconceptions and public anxiety about sexual offenders and the danger they pose to society. With the growth in Internet child exploitation prosecutions, the distinction between contact and noncontact sexual offenders has become increasingly blurred, as has the distinction between one who possesses and views child pornography at home versus one who distributes child pornography for commercial gain. For this reason, it becomes incumbent upon defense attorneys to challenge cultural assumptions that influence the criminal justice system. To do so, practitioners must ground their advocacy in precise psychological information about sexual offenders, their motivation and patterns, and how they may be successfully monitored and treated. More complete psychological information, coupled with the effective use of technological monitoring tools, provides sentencing courts with viable alternatives to prolonged detention while also achieving an appropriate balance between public safety and offender punishment.


Notes
1. Television host Chris Hansen has also written a book entitled To Catch a Predator: Protecting Your Kids From Online Enemies Already in Your Home.
2. Pursuant to 18 U.S.C. § 1462(c), the offense of importation or transportation of obscene matters is punishable by up to 10 years of incarceration.
3. Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (2008), available at http://mow.fd.org/; citing U.S. Sent’g Comm’n Report to the Congress, Sex Offenses Against Children, 1996 and 2007 Sourcebook, available at http://www.ussc.gov/ANNRPT/2007/SBTOC07.htm.
4. See, e.g., The Child Protection and Obscenity Enforcement Act of 1988, codified at 18 U.S.C. §§ 2251 & 2252(a) (criminalizing the use of computers to transport, distribute, or receive visual depictions involving minors); The PROTECT Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (2003).
5. Common rationales are found in United States v. Riley, 290 Fed. Appx. 910, 912 (6th Cir. 2008). In Riley, the defendant received a sentence of 70 months of incarceration for a guilty plea to one count of possession of child pornography.
6. Michael L. Bourke & Andres E. Hernandez, The ‘Butner Study’ Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders, 24 J. Fam. Viol. 183-91 (2009). The Butner Study was initially formulated for a presentation for the Association for the Treatment of Sexual Abusers. “The ATSA presentation highlighted the finding that a substantial percentage of men in treatment at Butner who claimed to be at ‘low risk’ of harm to children because they exclusively collected child abuse images and allegedly never molested a child, subsequently indicated that, in fact, they had committed acts of undetected child sexual abuse.” Id. at 185.
7. Id. at 185.
8. Id.
9. Id. at 186.
10. 588 F. Supp. 2d 997 (S.D. Iowa 2008).
11. Id. at *8.
12. The authors wish to thank attorney Mark Mahoney for providing information relevant to the published Butner Study.
13. The Butner Study, supra note 6, at 189.
14. Id. at 189.
15. Id.
16. Michael L. Bourke works for the U.S. Marshals Service.
17. Michael Seto & Angela Eke, The Future Offending of Child Pornography Offenders, 17 Sexual Abuse: A Journal of Research and Treatment 201 (2005).
18. Michael Seto, Pedophilia and Sexual Offending Against Children 160 (2008).
19. Id. at 17, 201-10.
20. Id. at 59.
21. Id. at 52.
22. Defendant’s Motion and Memorandum in Support of Downward Departure at 2, United States v. McDonald, No. 3:08-CR-30031 (D. Mass).
23. Id. Twelve-step programs that address problem sexual behavior include the following: Sexaholics Anonymous, Sex Addicts Anonymous, Sex and Love Addicts Anonymous, and Sexual Compulsives Anonymous.
24. Judgment of Conviction at 8, United States v. McDonald, Case No. 08-30031 (D. Mass).
25. Id.
26. J.P. Federoff et al., Victimless Pedophiles (July 2001) (poster session presented at the Annual Meeting of the International Academy of Sex Research, Montreal, Quebec).
27. Robert Weiss & Jennifer Schneider, M.D., Untangling the Web: Sex, Porn, and Fantasy Obsession in the Internet Age 56-80 (2006); see also Wendy Maltz & Larry Maltz, The Porn Trap: The Essential Guide to Overcoming Problems Caused by Pornography 88-90 (2008).
28. Pedophilia and Sexual Offending Against Children, supra note 18, at 95-96.
29. Professionals skilled in the provision of psychosexual evaluations can be found through the Association for the Treatment of Sexual Abusers at http://www.atsa.com.
30. A comprehensive overview of sexual offender assessment and evaluation methods, along with a discussion of their use and success, can be found in Pedophilia and Sexual Offending Against Children, supra note 18, at 23-45.
31. The Hare Psychopathy Checklist is a common diagnostic tool used to assess psychopathy.
32. The ability to experience regret, guilt, shame, and remorse is one of the most significant predictors of future behavior. Those without remorse are much more likely to repeatedly re-offend. Remorse is not suggested by a statement such as, “I wish I had never done this because look where it landed me,” which is a statement more indicative of psychopathy. The following would be more indicative of regret and guilt: “I knew what I was doing was wrong. I mean, who doesn’t know that. But I was so into it, I never took into account how it might affect those kids, not to mention my own family. I just don’t know what I was thinking.”
33. Adapted from A. Nicholas Groth, Ph.D., et al., The Incest Offender, the Victim, the Family: New Treatment Approaches (1985/2002).
34. The Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (2006), amended 18 U.S.C.
§ 3621 by requiring the Bureau of Prisons to create programs aimed at the treatment of sexual offenders. Prior to 2006, such programs were not mandated.
35. Federal Bureau of Prisons, Sex Offender Management Program Inmate Handbook 4 (February 12, 2007).
36. 18 U.S.C. § 3621(f)(1)(A).
37. Sex Offender Management Program Inmate Handbook, supra note 35, at 2.
38. Id. at 6.
39. Id.
40. Id. at 3.
41. Id. at 6.
42. Information provided by Cheryl Renaud, Ph.D., Sex Offender Management Program Coordinator, Sex Offender Treatment Program Coordinator, FMC Devens.
43. Department of Justice, Informational Brochure on FMC Devens.
44. Federal Bureau of Prisons, Residential Sex Offender Treatment Program Description (August 30, 2007), provided by Cheryl Renaud, Ph.D., Sex Offender Management Program Coordinator, Sex Offender Treatment Program Coordinator, FMC Devens.
45. Research confirms that untreated sexual offenders recidivate at a rate greater than those who participate in treatment. See Center for Sex Offender Management, Training Curriculum: An Overview of Sex Offender Treatment for a Nonclinical Audience, available at http://www.csom.org/train/treatment/index.html.
46. National Law Enforcement and Corrections Technology Center Bulletin (October 1999).


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