Rhetoric and Communication Perspectives on Domestic Violence and Sexual Assault

Policy and Protocol Through Discourse

Amy D. Propen, Mary Schuster

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351858267
• Edition: 1
• Topic: Sprachen & Linguistik
• Subtopic: Kommunikationswissenschaften

This book brings rhetorical, legal, and professional communication perspectives to the discourse surrounding policy-making efforts within the United States around two types of violent crimes against women: domestic violence and sexual assault. The authors propose that such analysis adds to our understanding of rhetorical concepts such as kairos, risk perception, moral panic, genre analysis, and identity theory. Overall, the goal is to demonstrate how rhetorical, legal, and professional communication perspectives work together to illuminate public discourse and conflict in such complicated and ongoing dilemmas as how to aid victims of domestic violence and sexual assault, and how to manage the offenders of such crimes—social and cultural problems that continue to perplex the legal system and the social environment.

1 Perspectives on Public and Political Controversy

Kairos, Moral Panic, and Risk

In the fall of 2013, a plan to open a new regional facility in Cambridge, MN, for low-risk civilly committed sex offenders was suspended when media coverage escalated, the community protested, and political figures reacted. The plan by the Minnesota Sex Offender Program (MSOP) was to move 12 offenders currently residing in its St. Peter facility to Cambridge. Six offenders were from the assisted living unit, which houses offenders who are aged or medically compromised and thus need specialized care, and six were from the alternative unit, which houses offenders with learning disabilities, cognitive impairments, or traumatic brain injuries. These offenders, called “clients” throughout MSOP, in order to stress individual responsibility for change, but referred to in the media as the Cambridge 12, had reached “maximum treatment effect,” as Dr. Nicole Elsen, a treatment psychologist at St. Peter, testified in the Karsjens et al. v. Jesson et al. trial (Elsen 2015, February 18, n.p.). In other words, the so-called Cambridge 12 would not benefit from further treatment and could function in a less restrictive environment. However, despite the fact that those in the new facility would be closely supervised, one local resident expressed the fear generated within the Cambridge community in saying, “I am not going to sleep well with those beasts over there” (Browning 2013, n.p., emphasis added).

The Cambridge proposal came around the same time that MSOP supported the petition to provisionally discharge Thomas Duvall, a convicted rapist who had been in civil commitment treatment since 1991. Although MSOP felt that Duvall could be safely transferred to a secure halfway house, Minnesota State Attorney General Lori Swanson opposed the discharge and requested an evidentiary hearing to determine Duvall’s fitness for discharge. That fall, the Cambridge proposal and the Duvall discharge combined to create what Democratic-Farmer-Labor (DFL) Minnesota Governor Mark Dayton called a “political circus,” as policymakers such as GOP state Representative Kurt Zellers considered Duvall’s possible discharge to be “outrageous, offensive and an affront to public safety” (Bierschbach 2013, n. p.). In reaction, the governor sent a letter to Lucinda Jesson, the Commissioner of the Department of Human Services, the department that oversees MSOP, directing her to “oppose any future petitions by sexual offenders for provisional releases” and to “suspend your department’s plans to transfer sexual offenders to other tightly supervised facilities, such as in Cambridge” (Dayton 2013, n.p.). The governor wanted Jesson to wait until the state legislature had the opportunity to review and/or revise existing civil commitment statutes to ensure the public’s safety, and to agree to and provide funding for additional less restrictive facilities—actions that the legislature failed to take in 2013, 2014, 2015, and thus far in 2016. Dayton closed his letter with a frank statement about where he stood on provisionally discharging MSOP clients such as Duvall:

By way of background, as you know, for many years the State of Minnesota has kept its most serious criminal sexual offenders locked away with virtually no chance of release. That is where most Minnesotans would prefer to keep them, and I agree. As a father and a grandfather, I believe the risks are too high to allow them to walk freely.

(Dayton 2013, n.p.)

But he also alluded to the necessity for change should the federal court find MSOP unconstitutional, particularly in violating due process rights as guaranteed in the Fourteenth Amendment, in what became the Karsjens class action civil suit.

The governor’s decision was applauded by local politicians who had cautioned the governor about the Cambridge plan. Brian Johnson, representing Cambridge in the state legislature, said he was “pleased” that Governor Dayton had “finally agreed” to Johnson’s own position on “the dangerous transfer of sexual offenders to less secure facilities” and cautioned the governor to consult more with lawmakers about such actions in the future (Kytonen 2013, n.p.). Also, the mayor of Cambridge commented that in making his decision the governor had “truly listened to our concerns” (Kytonen 2013, n.p.). And, so when Commissioner Jesson was cross-examined by the Defense in the Karsjens trial, she admitted that in terms of the Cambridge proposal, “The community reaction was more than anticipated” (Jesson 2015, n.p.). The result, testified Nancy Johnston (2015), the Executive Director of MSOP, was that although the Cambridge 12 had reached MSOP’s ultimate goal “to treat sex offenders in order to render future treatment unnecessary,” at the moment there was “no place to put them” other than leaving them in the existing facility in St. Peter (n.p.).

We begin this chapter with the Cambridge and Duvall stories to demonstrate how policy solutions can be derailed by media coverage, public fear, and partisanship sustained in professional communication and public discourse. When fear is out of balance with needs and risks, attempts at reform and intervention tend not to succeed. At the same time that the public may perceive risk about, say, the discharge of a sex offender back into the community, policymakers and legal experts may also be working to act in the best interests of public safety. Thus, discourses about risk perception often simultaneously reflect the public’s and policymakers’ perceptions about public safety and the necessary treatment and confinement of sex offenders after they have completed their prison sentences and before their reentry into the community. In the rest of this chapter, through rhetorical and professional communication perspectives we examine more closely the civil commitment of sex offenders as a case study illuminated specifically by theories of kairos, moral panic, and risk perception.

Our purpose is twofold: to point out how the examination of such kairotic contexts must often include the dimension of moral panic and perceptions of risk among all stakeholders when professional communication and rhetorical scholars examine extensive and controversial public issues or policy decisions; and in doing so, to enhance our theoretical understanding of kairos in the public and legal arenas by identifying how kairotic moments in such situations may become kairotic cycles, condemned to repeat without resolution. In this case, these kairotic cycles help us understand the failure to thus far resolve the fiscal problems and constitutional challenges that MSOP, in particular, faces. In our goal of extending theoretical perspectives as well as the potential relationship between scholarship and advocacy, we explore whether the rhetorical concept of kairos always represents the right choice at the right time, or whether kairos may become so heavily influenced by moral panic, and in particular, perceptions of risk, that the right choice may not be persuasive or even obtainable.

Again, 20 states and the federal government have civil commitment laws to deal with sex offenders, those “criminals we have come to call ‘sexual predators,’” or “the worst of the worst,” who appear so dangerous that they “seem to be pathologically different from the rest of us” (Janus 2006, 2). We focus on MSOP because although Minnesota’s standards for civil commitment are similar to other states (see, for example, Abracen and Looman 2006; Jackson and Hess 2007; Sreenivasan, Weinberger, and Garrick 2003), in 2015 Minnesota had over 720 offenders in civil confinement at a cost of $129,000 per head, per year, as opposed to about $29,565 per year for a prison inmate, and thus MSOP had an annual operating budget of over $76 million (Tice 2014, n.p.). Moreover, until the spring of 2012, MSOP had not successfully provisionally discharged a sex offender from the secure treatment facilities at Moose Lake and St. Peter. That is, the first person ever to be conditionally discharged violated a condition of his discharge (although he did not reoffend sexually) and was returned to MSOP where he eventually died. By August 2015, only two MSOP clients were back in the community. Minnesota is not alone in these challenges. In September 2015, U.S. District Judge Audrey Fleissig ruled that although Missouri’s sexually violent predator law was constitutional as written, it was not constitutional as applied. By April 2015, no one in Missouri’s Sex Offender Rehabilitation and Treatment Services (SORTS) had been released, and Judge Fleissig ruled the SORTS program “suffers from systemic failures regarding risk assessment and release that have resulted in the continued confinement of individuals who no longer meet the criteria for commitment, in violation of the Due Process Clause” (Berman 2015, n.p.; Van Orden et al. v. Schafer et al. 2015).

These challenges are not inevitable, however. By the end of 2014, for example, Wisconsin, which shares a similar demographic population with Minnesota, had 362 civilly confined clients in their Sand Ridge Secure Treatment Center, and since 1994 had placed 129 clients back into communities throughout the state, with about a third of those completely discharged and no longer needing supervision (Freeman et al. 2014, 89–90). Minnesota’s situation, however, made MSOP vulnerable to that mandate by Chief U.S. Magistrate Arthur Boylan, who, in the summer of 2013, ordered Lucinda Jesson to convene a task force to recommend ways to reform MSOP or face a take-over by the federal courts (Oakes 2011, n.p.). This mandate then led the way to the direct constitutional challenges to the state civil commitment program in 2015. With these ideas in mind, we consider how Minnesota’s situation can be illuminated through the theoretical perspectives of kairos, moral panic, and risk perception and can also contribute to our scholarly use of these perspectives.

The Concept of Kairotic Cycles

To extend rhetorical notions of kairos, particularly when affecting public policy decisions, we use Minnesota as an example to trace the controversies over civil commitment as they emerged within three kairotic moments: the Dennis Darol Linehan case in the late 1990s, which generated the first public rhetoric about civil commitment in Minnesota; the November 2003 kidnapping and murder of 22-year-old female college student Dru Sjodin by Alfonso Rodriguez, Jr., which in essence prevented Moose Lake and St. Peter from discharging even those offenders who had participated fully in their treatment programs; and, finally, the provisional discharge of the sex offender Clarence Opheim in spring 2012, which again stirred up responses by policymakers, the media, and the general public.

This last kairotic moment was initiated by a particular document or artifact—the Minnesota Legislature Auditor’s (2011) report on the problems of and necessary reforms to MSOP—which became evidence in the Karsjens federal trial in early 2015. We examine the political, public, and media response to these three kairotic moments and provide observations of legislative hearings, public symposia, media response, and the Karsjens case, as well as the results of 21 interviews with stakeholders. (See the Appendix for a description of our data collection and analysis.) In doing so, we illustrate how moral panic and risk perception can so influence what seems the right choice at the right time that stakeholders may get caught in what we call kairotic cycles, where solutions to a problem are stymied by competing perceptions and by entrenched positions that reoccur over time and without resolution.

The Rhetorical Notion of Kairos

John Poulakos (1999) defines rhetoric as “the art which seeks to capture in opportune moments that which is appropriate and attempts to suggest that which is possible” (26, emphasis in original). The ancient Greeks proposed that persuasive rhetors must be aware of recent events that make an issue urgent at the moment, the arguments that various groups seem to favor, the power dynamics or hierarchies involved, the prevailing values of the audience, and any other challenges bound up with the particular issue. Kairos identifies situational time to make a point through exigence or persuasive communication. Exigence, according to Lloyd Bitzer (1999), is “an imperfection marked by urgency” and must be capable of being changed by rhetoric to be rhetorical (221). Many rhetorical scholars combine these two highly related concepts of kairos and exigence within “the rhetorical situation,” or what we consider as kairotic moments.

Moreover, the most persuasive solutions are usually produced by the cultural and political elements of a situation rather than by transcendent and unchanging laws (Bizzell and Herzberg 2000). Carolyn Miller (1992), for example, concludes that kairos indicates that situations are also created by rhetors and can foster a “dynamic interplay between objective and subjective, between opportunity as discerned and opportunity as defined” (312; see also Miller 1994). Kairos then becomes not only a critical opening but also a constructive power to fill an existing gap or create a new rhetorical void, which the rhetor can then occupy for advantage. In this chapter, we extend Crowley and Hawhee’s (2008) ideas about the “mutability of rhetoric” and the notion that stakeholders may become interested and then disinterested in an issue, as we consider how these moments may form cycles in which the resolution of an issue might become stymied or even impossible, especially when perceptions of risk lead to moral panic within the public arena (48).

The Problem of Moral Panic

If we see kairos as an opportunity that a rhetor can occupy for advantage in responding to a social or political controversy, the sociological concept of moral panic necessarily complicates kairotic rhetoric. The functioning of moral panic in a rhetorical situation that involves the creation and implementation of laws governing the civil commitment of sex offenders allows us to speculate as to how the interplay between confinement and treatment as well as between public safety and constitutional rights for sex offenders stymies resolution by state policymakers within kairotic cycles.

We recognize that, in some situations, extreme panic might seem reasonable, such as in response to a natural disaster or a radical threat. Moreover, to many stakeholders—in particular, the general public—moral panic might constitute an expected response, for example, to the possible release of a notorious sex offender from prison or the discharge of this offender from MSOP. In this book, however, we distinguish between such fear and even disgust on the one hand, which might prove reasonable and even productive to effective systemic change given the presence of a sex offender among the general population, and moral panic on the other hand, which becomes so extreme, disruptive, and costly that it becomes counterproductive to such systemic change. We rely on the thoughts of the many sociological scholars who provide perspectives on so-called irrational moral panic—or who likewise define moral panic itself as so extreme as to prevent reasonable solutions. We do so in light of the low recidivism rate of sex offenders and the close supervision and continued treatment of such discharged sex offenders—factors we add to our argument within this chapter. We are particularly interested, then, in how kairos functions in the context of the sort of chain reactions, such as those that seem to be happening in Minnesota. Here, the media communicate a perceived risk to public safety, the public perceives that risk as legitimate and immediate, and policymakers respond with extreme action. Thus, we examine the possible factors that may influence the functioning of kairos in a rhetorical situation that involves moral panic and that may be shaped by perceptions of risk.

British sociologist Stanley Cohen (1980) defines the stages and complications of moral panic as follows:

A condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right-thinking people; socially accredited experts pronounce their diagnoses and solutions; ways of coping are evolved or (more often) resorted to … Sometimes the panic passes over and is forgotten, except in folklore and collective memory; at other times it has more serious and long-lasting repercussions and might produce such changes as those in legal and social policy and even in the way the society conceives itself.

(9)

Others have gone on to interpret what Cohen meant by the very phrase “moral panic.” David Garland (2008), for example, speculates that by “panic,” Cohen meant a “sudden and excessive feeling of alarm and fear … leading to extravagant or injudicious efforts to secure safety” (10). By “moral,” deep emotional dimensions as well as transient feelings, according to Janice Irvine (2008), map “specific features of the historical movement, institutional agents and practices, cultural and discursive strategies, media representations, dynamics of specific political movements and their activists as a way to understand the eruption of feeling” (4). According to these scholars, moral panic can represent emotional and extreme, even irrational, responses to a perceived and unsettling threat.

Again, in instigating and perpetuating a moral panic in cases such as the one we studied, three groups of rhetors often play a key role: the media, the public, and the professionals involved in the decision-making process. Daniel Filler (2003) and others recognize and describe the rhetorical moves made by such groups: claim makers use melodramatic language to demonize offenders and to contrast the deviants from the rest of society; they emphasize that because the crimes are random, anyone can become the next victim (Best 1987; Vess 2009). Moreover, Garland (2008), responding to the work of Erich Goode and Nachman Ben-Yehuda (2006), states that these rhetors engage in concerns that spark anxiety; hostility toward the deviants; consensus about the negative social reaction; disproportionality or exaggerations about events and risk; volatility, particularly given media reporting; and perhaps eventually introspective soul-searching throughout society to identify the deviant event as a result of systemic problems (11). This last effort, examining systemic problems, is particularly challenging. In reforming MSOP, Chief U.S. Magistrate Judge Boylan, in essence, asked the task force to move beyond both the extreme public fear of sexual predators, often exaggerated through media coverage, and the insecurity of elected officials should they appear “soft on crime” to their constituents. Boylan called for systemic changes to ensure that at least some sex offenders could safely reenter the community upon successfully completing treatment.

Media coverage, then, plays an important role in our study because, through the very nature of the business, media often serve as the catalyst for a moral panic and thus have the power to influence or curtail systemic change. Stuart Hall et al. (1978), early on in their study of moral panic about mugging in Britain, for example, recognized that novelty was a conventional news value and that the media often categorize not only crime but also ideological frames within society to catch the public’s attention. And so, Marjorie Zatz (1987), in her study of Chicano youth gangs in the United States, concluded that it was the business of the media “to create images and structure ideas in thematic ways … to produce a particular ideology” (131). Even when the statistics do not support beliefs about rising crime in any one category, the media often stigmatize those who break the law and threaten the social order. As Michael Welch, Eric Price, and Nana Yankey (2002) later assert, in the moral panic over the 1989 “wilding” attack on a New York...