The Perversion of Youth

Controversies in the Assessment and Treatment of Juvenile Sex Offenders

Frank C. DiCataldo

• Publisher: NYU Press
• Year: 2009
• ISBN:
  9780814720387
• Topic: Psychologie
• Subtopic: Psychologie du développement

Over the past two decades, concern about adolescent sex offenders has grown at an astonishing pace, garnering heated coverage in the media and providing fodder for television shows like Law & Order. Americans' reaction to such stories has prompted the unquestioned application to adolescents of harsh legal and clinical intervention strategies designed for serious adult offenders, with little attention being paid to the psychological maturity of the offender. Many strategies being used today to deal with juvenile sex offenders—and even to define what criteria to use in defining "juvenile sex offender"—do not have empirical support and, Frank C. DiCataldo cautions, may be doing more harm to children and society than good.

The Perversion of Youth critiques the current system and its methods for treating and categorizing juveniles, and calls for a major reevaluation of how these cases should be managed in the future. Through an analysis of the history of the problem and an empirical review of the literature, including specific cases and their outcomes, DiCataldo demonstrates that current practices are based more on our collective fears and moral passions than on any supportive science or sound policy.

1

The Birth of a Moral Panic

Delinquency has always been with us. Adolescents have always fought, stolen, run away, abused substances, been truant, set fires, destroyed property, and congregated in groups that promulgate such activities. There is nothing new about adolescents engaging in these troublesome behaviors. But childhood sexuality is an idea deeply engraved in the American psyche as something altogether different: damaging, scarring, inherently harmful, traumatizing, a warping mark (Levine 1996). To borrow a phrase from Michel Foucault (1978), sex has been problematized by us moderns, and nowhere does this problematization run deeper than in the sexuality of children and adolescents.

Childhood sexuality has become a police matter, or at least a matter for the legions of child welfare and delinquency workers who police the borders of the various systems that have been devised—child welfare or dependency, education, mental health, and juvenile justice—to deal with the “troubling and troublesome children” (Weithorn 2005) who are shuttled back and forth across the porous borders of these interconnecting networks of institutions and systems. The children who are netted within the webs of these various systems often share more commonalities with each other than differences. What happens to any of these children, where they end up—in the mental health, child welfare, or juvenile justice system—often depends more on which system they happen to enter than on anything unique or distinctive about their needs (Lerman 1982). Often, where they enter depends on their race, their social class, their sex, or just plain old random misfortune. The significant question is why juvenile sex offenders have been separated out of this churning, heterogeneous mixture of “troubling and troublesome children” and set apart as separate and distinct from the rest of the children held within the vast child-saving network of systems and institutions.

Historians of childhood since Phillip Ariès (1962) have argued that children and childhood are the products of our ways of seeing. The child is not something out there in the world, a natural object, waiting to be discovered (Kincaid 1998). The child is a byproduct of the web of institutions and the systems of thought within which he or she is ensnared. And these systems of thought are historically contingent and situated. They shift and evolve, and the view of the child within their prisms shifts and changes accordingly. The idea of the child is not static, not a given or a discovery. The child is shaped by the ideational framework within which he or she is captured. Throughout history children have been trapped within discourses of romantic innocence contaminated by a vile world; discourses that portray them as a tabula rasa awaiting the imprinting of experience; discourses that depict them in a state of savagery tempered by a disciplined order; and discourses that implant within them a biological program of development that unfolds within a facilitating environment. There have been discourses upon discourses of childhood that have produced a vast gallery of distinct childhood portraitures through history.

Today the adolescent who has engaged in some form of sexual misconduct and is legally labeled a juvenile sex offender has been framed within a discourse of deviant desire. Such youth are no longer depicted as errant minors in need of some corrective guidance or instruction; rather, they have been implanted with an alien sexuality that requires exclusionary legal and mental health treatment—confinement, assessment, intervention, community surveillance—and, in most cases, the prevailing wisdom of these views argues, some of these measures need to be applied across the span of their lives. They are no longer depicted as awkward, fumbling sexual neophytes prone to impulsive and poorly judged acts that will probably smooth out with maturation and corrective experience, but instead are seen as budding sexual menaces in need of careful surveillance and control. The categories used for adolescents whose sexual experiences have drawn the attention of the legal system are often loose and amorphous. The 18-year-old victim of sexual assault is a child while the 14-year-old molester is frequently an adult (Kincaid 1998). Analyzing how these categories are constructed and maintained is the overarching task of this book. What empirical evidence exists to support the conceptualization of juvenile sex offenders in the manner that prevails today? Are there empirically sound alternatives for the treatment of juvenile sex offenders that are less potentially harmful to them and still meet the goal of protecting the community? These are the questions that occupy the chapters ahead.

• • •

“Two teens face charges of statutory rape of girl” (Schworm 2005)—a headline newsworthy enough for front page coverage in the city section of a large metropolitan newspaper. It was the third criminal case that year of underage sex in the school. Two 17-year-old boys, well-regarded athletes in a public high school of high academic standing, were arrested and charged in district court for having sex with a 15-year-old girl from the same high school. The brief newspaper report cleared up the usual questions often surrounding incidents like these. The sexual acts were not violent; they were not described as overtly coercive. The report called the acts “consensual,” but legally that is impossible because the legal age of consent in this particular state begins at 16. The victim reported two separate sexual incidents with the perpetrators: the first at one of the perpetrator’s homes and the second at an undisclosed location somewhere in another nearby city. The boys were also charged with disseminating obscene material to a minor, as a number of pornographic videos were confiscated from one of the perpetrator’s homes. The boys allegedly viewed the videos with the girl. The newspaper article quoted the high school principal describing the case as “deeply disturbing,” and in a letter sent to parents he wrote, “The behavior of these young people is unacceptable, irresponsible, and illegal.” A varsity coach of one of the boys said he was stunned and “sick to his stomach.”

There is no way of knowing from the story how close the victim was to the bright line for the legal age of consent—as much as a year or as little as a day—or how much the perpetrators were over that other magical transitional line—the one that divides juvenile court and adult court jurisdiction. Juvenile court jurisdiction ends after 16 years of age in this state; at 17 one is an adult. These perpetrators were suspended from school while they awaited trial in adult court for the rape of a minor child. And though they will probably be sentenced if convicted, whether by trial or by a plea, to a term of probation with community service and outpatient sex offender treatment, they will also probably have to comply with the state’s mandatory sex offender registry law. They will be assigned a risk category by a classification board and will be required to inform the police within their residential community about their presence for the next twenty years.

The remaining factual ambiguities about the sexual acts themselves are easily cleared away with the description that they were engaged in willingly, if not legally consensually, by all the participants. The moral ambiguity of the story is not as easily resolved. What is this story about? What is the warning? What makes it newsworthy? What aspect of it draws our collective attention or concern? Is it the fact that two 17-year-old boys had sex with a 15-year-old girl who was unable to provide legal consent? Or is it that two 17-year-old boys were arrested and will be charged in district court for rape of a minor—that they will be classified as sexual offenders who will be required to attend sexual offender treatment and mandated to register as sexual offenders for the next twenty years? The report itself, told with journalistic neutrality, does not betray a point of view.

The current movement to hold children equally as legally accountable for their sexual transgressions as we do adults is born out of the best of intentions. But even the best of intentions can carry coiled within them unintended negative consequences. The predominant trend that advocates dealing with most instances of sexual misconduct of children and adolescents through formal legal measures is predicated on the idea that by not doing so we enter into a sort of complicity with the offender, a subtle endorsement of the sexual act. The trend is viewed as a corrective revision of a deeply misguided historical practice that often failed to hold adolescent boys accountable for their sexual acts, when the sexually abusive behavior of juveniles was often dismissed as “an adjustment reaction,” “a manifestation of stress,” “sexual experimentation or curiosity,” or merely “boys being boys.”

Lionel Trilling (1947), the novelist and literary critic, in an essay entitled “Manners, Morals, and the Novel,” advanced the idea of the novel as a form of investigation that is able to peer beneath the hidden cruelties of our most benevolent social actions. Think of the nineteenth-century novels of Charles Dickens or Henry James or the twentieth-century naturalism of Stephen Crane or Theodore Dreiser, with their stories about the carnage heaped upon the life outcomes of their protagonists, trapped like wounded animals within moral systems that foretold their ruin. Through its adherence to a perspective Trilling termed “moral realism,” the novel demonstrates

that to act against social injustice is right and noble but that to choose to act so does not settle all moral problems but on the contrary generates new ones of an especially difficult sort. . . . We have the books that point out the bad conditions, that praise us for taking progressive attitudes. We have no books that raise questions in our minds not only about conditions but about ourselves, that lead us to refine our motives and ask what might lie behind our good impulses. There is nothing so very terrible in discovering that something does lie behind. (Trilling 1947, 116-17)

That some unspoken cruelty or, more likely, some unacknowledged fear may lie behind our “moral passions” is worth knowing. Trilling warned us about the insidious nature of our “moral passions,” such as those that direct the current response to juvenile sex offenders: “We must be aware of the dangers which lie in our most generous wishes” (118). And so it is with the current trend to criminalize many forms of adolescent sexual transgressions: it solves one set of problems while generating entirely new ones that will need new solving.

Genarlow Wilson’s story reads like a modern American gothic novel. He was released from a Georgia Department of Correction facility after serving two years of a ten-year sentence for the felony conviction of aggravated child molestation (CNN 2007a and b; Goodman 2007a and b). His mother and younger sister were there to greet him at the correctional facility following the Supreme Court of Georgia’s decision on October 27, 2007, declaring that his sentence amounted to a violation of the Eighth Amendment’s prohibition against “cruel and unusual punishment.” At a 2003 New Year’s Eve party, an intoxicated Wilson, 17, a star athlete and honor student, had received oral sex from an intoxicated 15-year-old girl, too young to legally consent to such an act and considered too drunk anyway to have been able to provide such consent had she been old enough. It was all right there on the videotape filmed at the party.

News of his case set off a media firestorm of controversy, capturing the support for Wilson of former president Jimmy Carter, also a former governor of Georgia, and several members of the jury that convicted Wilson, who were unaware at the time of their deliberation of the mandatory minimum sentence that a guilty verdict would require of him. A cruel twist in the case was the fact that if Wilson had had sexual intercourse with the victim rather than oral sex, he would have been spared the felony conviction and would have been convicted of a misdemeanor offense because of a “Romeo and Juliet” provision that sought to protect adolescent defendants like Wilson who engage in sexual intercourse with underage partners. The Georgia General Assembly in 2006, in response to Wilson’s case, closed the oral-sex loophole, defining most sexual acts between willing but legally nonconsenting adolescent participants, no more than four years apart in age, a misdemeanor punishable by no more than a 12-month sentence without a mandatory requirement that the defendant register as a sex offender with the state. But the legislature deliberately refused to have the amended law apply retroactively. Wilson remained incarcerated until the state Supreme Court ordered his release. In the various stages of appeals, counsel for Wilson argued that the sentence was too severe for a case of two drunken teenagers at a party. The law arguably was intended to protect children from the unscrupulous predation of adult sex offenders, and was not intended to apply to an adolescent who lacked anything remotely resembling a perverted past.

The media outrage focused more on the issue of racial discrimination than the criminalization of adolescent sex. Wilson was black. His plight was largely wrapped within the larger social discourse about the entrenched racial biases in the criminal justice system. But this case at its origins may have as much to do with the collective fears of adolescent sexuality and the sexual abuse of children as it does with racial injustice. In this case the 15-year-old victim was a child and the 17-year-old perpetrator was an adult, and although they were separated by only two chronological years, more or less, they were being depicted by the criminal justice system in terms about as far apart as is possible. They existed at opposite ends of the criminal justice spectrum: victim and offender.

Wilson had refused the offer of a plea bargain from the prosecutor even though it would probably have resulted in a briefer sentence, maybe even release with time served and community registration. He refused because an admission of guilt would have affixed on him the label of sex offender, which would have trailed him for the rest of his days. As a sex offender registrant, Wilson would have to provide the state with his address, his fingerprints, his Social Security number, his date of birth, and his photograph, and he would have to update this information every year for the rest of his life. All this information would be posted in various public places and on the internet. Moreover, Wilson would be unable to live or work within one thousand feet of any child care facility, church, or area where minors congregate. What if the designation prevented him from having unsupervised contact with his younger sister or followed him into college and beyond? This was too high a price to pay, in his estimation, so he refused the plea and took his chances with the courts.

The Supreme Court of Georgia in a four to three decision concluded that “Wilson’s sentence of ten years in prison for having consensual oral sex with a fifteen-year-old girl when he was only 17-years-old constitutes cruel and unusual punishment” (Humphrey v. Wilson 2007, 1) and was “grossly disproportionate to the offense” (11). The court further concluded that the legislative amendments to the law, reducing an adolescent defendant’s sexual acts with victims not more than four years younger to a misdemeanor offense, which followed Wilson’s conviction but did not retroactively apply to him, represented

a seismic shift in the legislature’s view of the gravity of oral sex between two willing teenage participants . . . [and] that the severe felony punishment and sex offender registration imposed on Wilson make no measurable contribution to acceptable goals of punishment. . . . This conclusion appears to be a recognition by our General Assembly that teenagers are engaging in oral sex in large numbers; that teenagers should not be classified among the worst offenders because they do not have the maturity to appreciate the consequences of irresponsible sexual conduct and are readily subject to peer pressure; and that teenage sexual conduct does not usually involve violence and represents a significantly more benign situation than that of adults preying on children for sex. (Humphrey v. Wilson 2007, 18-20)

Juvenile sexual offending is certainly a serious problem that needs to be addressed rationally. The concern now is that what started out as a solution to one social problem may have tipped over into a new problem from which new relief must be sought. It is hard to consider the story of Glenarlow Wilson and not conclude that a state of “moral panic” (Cohen 1972) presides in the current legal response to juvenile sex offenders. The current state of the legal response to juvenile sex offenders has led legal scholars like Franklin Zimring (2004) to describe it as an “American travesty” and others to lament that perhaps the pendulum has swung too far in the direction of draconian responses (Barbaree and Marshall 2006; Chaffin and Bonner 1998; Letourneau and Miner 2005).

The momentum for the current state of affairs was set off in the late 1970s and early 1980s when it was discovered that sexually dangerous adults often began their sexually deviant careers in adolescence (Abel, Becker, Mittelman et al. 1987; Abel, Osborne, and Twigg 1993; Groth 1977; Groth, Longo, and McFaddin 1982; Longo and Groth 1983). But a distorted image emerges when the life histories of such a rare and deviant group come to represent the story for the vast, heterogeneous group of adolescents who engage in sexually abusive behavior. The overwhelming majority will not repeat their sexually abusive behavior through their life course (Caldwell 2002; Letourneau and Miner 2005; Righthand and Welch 2001; Zimring 2004). Most will leave it behind, along with all their other youthful indiscretions, from driving too fast to drinking too much and all the other poorly judged and impulsive behaviors that have come to define modern adolescence. Nothing cures quite like maturation. Only a rare, dangerous few will pass through the threshold of adolescence into adulthood with their sexual deviance in tow and go on to become adult sexual offenders. Rather than an early harbinger of adult sexual deviance, most adolescent sexual offending is more properly viewed as a general sign of maladaption or emotional crisis. Rarely is adolescent sexual offending about deviant desire, perversion, or a “paraphilia,” the psychiatric term for sexual deviance. It is more likely to be a nonspecific sign indicating any number of underlying problems. Unfortunately, the legal responses and clinical interventions that have evolved to address adolescent sexual offending have lacked precision and specificity. Adolescent sexual offenders are treated en masse as though the entire group harbors some silent and secret contagion that will manifest in time.

The vast majority of adolescents who are labeled juvenile sex offenders do not live up to the image that the term conjures up. They simply are not, in the aggregate, as sexually deviant as they are often made out to be. There are alternative ways to think about adolescent misconduct that are more flexible and pliable. In his book The Changing Legal World of Adolescence, published twenty-five years ago, Franklin Zimring (1982) lamented the social and legal foreclosure of adolescence as a time when teenagers were allowed and even expected to “muddle through” that awkward middle phase of life between the innocence of childhood and the mature rationality of adulthood, likening the stage of adolescence to a sort of “learner’s permit” granted before one becomes a legally licensed and fully responsible adult:

Part of the process of becoming mature is learning to make independent decisions. This type of liberty cannot be taught; it can only be learned. And learning to make independent judgments can be a risky process. . . . In blackjack, an ideal “career” is never to lose a hand. In the game of learning to make free choices, winning every hand is poor preparation for the modern world, just as winning every hand is a terrible way to learn to play blackjack. We want adolescents to make mistakes, but we hope they make the right kind of mistakes. (Zimring 1982, 91)

A similar perspective regarding adolescent culpability was recently taken by the U.S. Supreme Court in its decision to constitutionally ban the execution of adolescents who committed their capital offense at the age of 17 or younger (Roper v. Simmons 2005). The Court, echoing the position staked out in an amicus brief filed by the American Psychological Association (2005) in support of the constitutional ban, agreed that adolescents as a group are no...