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July 18, 2005

Equal Protection, My Ass

This "reasoning" just infuriates me. It is precisely this type of thing which keeps me out of law school:

The simplest tool for evaluating sex offenders is the Rapid Risk Assessment for Sex Offense Recidivism. The RRASOR (pronounced "razor") includes just four items. A sex offender gets one point for being under the age of 25 at the time of his release from prison, another if any of his victims were male, and a third if he wasn't related to his victims. He gets up to three more points depending on how many sex crimes he's been charged with.

The most dangerous offenders, then, are young adults who have committed multiple sex crimes against boys they've never met before. According to the RRASOR's table of probabilities, these six-point cases have more than a 73 percent chance of committing another crime within 10 years. . . .

So what can we reasonably infer from this (assuming, of course, that the research was conducted in a valid manner)?

That the worst recidivists are men who commit sex crimes against young boys who they don't know.

And the burning (forgive the sick joke here, but at this point my mind said, "ouch!") question this piece of sick knowledge aroused in the legal mind?

Let's say that the RRASOR test seems like an accurate predictor, and in particular sex criminals (overwhelmingly male ones) who attacked a boy are found to be substantially likelier to reoffend than those who attacked a girl. May parole boards and sentencing judges take the test's result into account? (1) Would this be sex discrimination, on the theory that it discriminates based on the sex of the victim, though not of the offender? (2) Would it therefore violate the Equal Protection Clause? (Note that the Equal Protection Clause has been interpreted as presumptively barring discrimination based on sex, though generally not discrimination based on sexual orientation.)

While I fully understand that in this case the Equal Protection Clause is concerned only with the prisoner's rights, I refer the half-vast readership to the title of this post.

Let's take this slowly. If the Equal Protection Clause is invoked here, this says that persons with a 73% or greater probability of raping one or more boys within the next ten years (that is, after all what we are talking about here) will very likely be released, when we have an empirically-based method to reduce or perhas even entirely prevent such future rapes from happening.

When will we stop making laws based on the fiction that there are no behavioural differences between men and women? "Equal protection", in this case, is a legal fiction when applied to small boys, who apparently can expect no protection from the law.

As a mother who raised two boys, I am appalled.

Posted by Cassandra at July 18, 2005 08:24 AM

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Whatever happened to "Wrong is Wrong?" Do we have to increase the severity of the penalty based on the victim's gender? What about the perps who are of different races, ethnicities, etc? Do we take into account so called 'norms?' Or is gender of perpetrator and victim the only criteria in determining a level of severity?

Why not call a rapist what he/she is and get them off the streets?

Posted by: Cricket at July 18, 2005 11:38 AM

I don't know, Cricket. This makes me so angry I don't really trust myself to comment right now. There are a lot of things I could say, but I won't.

Posted by: Cassandra at July 18, 2005 11:48 AM

Applying a little precedence, let me offer the following response.

Is the equal protection clause (EPC) invoked? Yes.

Does that make the use of "razor" unconstitutional? Not necessarily.

Sex discrimination under the EPC is subject to a mid-level scrutiny test. Is the discrimination "substantially related to a significant government interest" or words to that effect. This is a higher standard than most EPC issues, like say economic discrimination that we discussed here a long time ago (reasonably related to legitimate govt interests) but less than "strict scrutiny" which is reserved for race and national origin discrimination ("necessary to achieve compelling govt interest"). So you see, every "distinction" is subject to the EPC, like this one. But that doesn't mean it is unconstitutional. Even race discrimination is constitutional if it meets the test.

So, is sentencing based on "reliable" social science statistics "substantially related" to a significant government interest (keeping sex offenders off the streets in relationship to their risk)? I guess a court will decide, but I think this type of sentencing could pass the test.

Posted by: KJ at July 18, 2005 01:06 PM

Well gee whiz counselor, what about what he/she DID, never mind to WHOM? Why add all the statistical BS to it? Does it really matter what the race and gender of the victims were? What about BREAKING THE LAW?

There's a novel thought.

Posted by: Cricket at July 18, 2005 03:18 PM


There is no problem giving a harsh sentance. The EPC issue arises out of the fact that sentencing for the same crime is treated differently based on the gender of the criminal and victim. If there was no proposal to use this difference in sentencing guidelines, then there would be no EPC issue.

No one is ignoring the crime.

Posted by: KJ at July 18, 2005 05:44 PM

Let's see, we have a statistical analysis that seems to yield useful data, data that would be extremely pertinent in sentencing and "treatment" of the offender, and the problem is that it's applied unequally across genders? I would think that predicting behavioral markers would be a good thing, especially in cases involving sexual assaults on children.

If people want to see a dramatic increase in vigilantism, then by all means, let's debate the pros and cons of trying to keep predators off the streets, all the while letting them out when we have a pretty good idea that they're just going to victimize someone else. My worst fear is that some animal will assault my children, and my second worst fear is what my reaction will be afterward. I seriously doubt that the perp would make it out of the courtroom after sentencing. I'll take my chances with a jury rather than take the rather large chance that what happened to my children would happen to someone else's.

Let's face it, all the data show that sexual predators are very difficult to rehabilitate. Maybe instead of worrying about their rights, we should be protecting our children. I vote for castration, chemical or otherwise. As someone who has been involuntarily celibate for over three years now, the loss of your sex life will not seriously inconvenience you. Why do you think they call it justice?

Posted by: Chris Hunt [TypeKey Profile Page] at July 18, 2005 08:44 PM

Tough question. Supposing that the quoted recedivism rate is accurate and that the rate for girls is drastically different.

Aside: If the rate for 6 point violators is 73% but the rate for 5 point violators (with the only difference being that the sex of the victim is female) is 70%, then I claim the two numbers are indistinguishable from each other. However, we are not given this number, only the differing rates by number of points. Without this information the data from this study is not actionable in this regard!

But, for the sake of the hypothetical...let's for the moment assume the rate for boy rapists is 73% and the rate for girl rapists is something in the ballpark of 15% all else being equal.

Do we really want to put into law (in effect) that the life of little boys are worth more than little girls, therefore justifying the harsher punishment?

Do we want to ignore emperical evidence that could maximize the use of limited resources (thus allowing us to prevent/prosecute more crimes) because of the cultural implications?

Is there a "right" answer?

Personally, I don't want my (future) daughter's raper to get a lesser sentence than your (now grown) son's. To helk with the waste of resources, I say keep them both in jail for the longer time. However, I also understand your point that due to limited resources that could be spent elsewhere it puts your child at higher risk. It seems we're screwed either way.

Not an easy question at all.

Posted by: Masked Menace© at July 19, 2005 09:15 AM

KJ, I never said the crime was being ignored, but that the point system is being awarded unfairly.
Does it realy matter that statistically that boys are more likely targets than girls? It shouldn't.

What matters is the fact that the laws against statutory rape and the punishment thereof should be sufficient. That is the part of equality of the law. It doesn't matter what race and gender the victim is, what matters is the crime itself.

THAT is what they should be punished for, and not given points. That diminishes the horror of what they did. It isn't a deterrent.

I have looked up registered sex offenders in my zip code. Three live about a mile away from me.
It doesn't matter to me WHO they assaulted. What matters to me is they are 'here' near me. I don't care how many points they have, or that they are
on 'probation.' I am worried that they will 'strike' again.

Posted by: Cricket at July 19, 2005 02:19 PM

First, let me apologize in advance. I've been having a friendly mood failure the last couple of days so if I come off as mean or hateful, I'm sorry.

but that the point system is being awarded unfairly.

Fairness is a rather nebulous concept and as such has no real place in statistical analysis. We do not look for what is fair. We look for what is true, and sometimes the truth isn't fair.

Does it realy matter that statistically that boys are more likely targets than girls? It shouldn't.

The study doesn't say that boys are more likely targets. Only that there is a positive increase in the recidivism rate if the victim is male. It doesn't determine the gender of the next victim. Only that there is more likely to be one.

What matters is the fact that the laws against statutory rape and the punishment thereof should be sufficient.
But should recidivism rate be a determining factor in whether a punishment is sufficient? As a parent you know very well that recidivism is a strong indicator of insufficient punishment. Those who are then prone to recidivism need harsher punishments than those who aren't.

It doesn't matter what race and gender the victim is, what matters is the crime itself.

The crime is just a horrible whether the victim is male or female. This study doesn't say otherwise. What it does say is that gender matters when it comes to the proclivity of becoming a repeat offender. For example, those who rape girls, will (on average) rape 1 other person, while those who rape boys will (on average) rape 3 other people.

I don't care how many points they have, or that they are on 'probation.' I am worried that they will 'strike' again.

This study (if done correctly) claims that by using those 4 factors, it can tell you how likely it is that they will strike again. I'd be very concerned about the guy with a 5% likelihood of striking again, but I'd be absolutely freaking out over the guy with a 95% chance of striking again. This tool claims that it can help differentiate between the two.

THAT is what they should be punished for, and not given points. That diminishes the horror of what they did. It isn't a deterrent.

Sex offenders aren't "given points" like they do on drivers liscenses. The points are not a punishment, they are simple one of many metrics used to determine the likelihood of repeat offenses.

Now, if you meant that punishing rapist's of girls less than rapists of boys diminishes the horror of the girl's rape compared to the boy's rape, then that is a valid concern. The question then becomes, does the negative social implications outweigh the positive crime prevention.

Let's take the extreme case. Let's say that a person who molests a girl and spends 10 years in prison has a 0% chance (absolute impossibility) of a repeat offense. I claim they have had sufficient punishment. They have served time for the horror they caused and are no longer any threat to anyone else.

Let's say another person who molests a boy and spends 10 years in prison has a 100% chance (absolute certainty) of a repeat offense. There's no way in hell I'd say his punishment is sufficient.

However, in the interest of fairness and because the horror is the same as the female victim, do we let him out after the same 10 year punishment and condemn another innocent child to molestation?

Or do we then over punish the first criminal (who is no longer any threat) and waste police resources that could be used to prevent/prosecute/convict other criminals who are a threat (and by extention condemn another innocent person to victimization)?

Like I said earlier, we're screwed either way.

Posted by: Masked Menace© at July 19, 2005 04:16 PM

Does it realy matter that statistically that boys are more likely targets than girls? It shouldn't.

Whether or not a variable should predict an outcome is completely irrelevent. It is only relevant whether or not it does.

Posted by: Masked Menace© at July 19, 2005 04:23 PM

Thank you Menace.

I started to comment on this several times, but didn't because I am aware that I am too emotional about the subject.

The worst nightmare (a recurring one) I have ever had was that some pervert got one of my boys and was hurting him, and I couldn't find him in time.

The first time I had it, I woke up in a sweat and it felt like someone was tearing my heart right out of my body. I honestly thought my heart would stop. I have never felt so completely powerless and angry in my life.

I used to have this dream every time my husband deployed. I know it was because I was afraid I couldn't protect the boys as well as he could - that I wouldn't measure up as a single parent. It probably made me a better Mom, but it was just awful. I used to spend the next day in a complete fog.

And FWIW, I don't think it's the same. I think it's worse. For a variety of reasons I don't think I need to go into.

Posted by: Cassandra at July 19, 2005 04:40 PM

Heh, you're worried about being overly emotional, I'm worried about being overly indifferent.

Posted by: Masked Menace© at July 19, 2005 06:10 PM

You didn't come off as unfriendly. I worry about all my children because to me, if one of my boys was molested, there is nowhere that perp can hide. Same goes for my daughter.

I worry all the time about them and even more so because of the LD son.

I don't see it in terms of recidivism. Just that one time is one time too many and I am not inclined to forgive someone who took that from them. I am inclined to give them a one way ticket off this planet.

You did a great job of breaking down my comments
and responding to each one of them. It was well done and I apologize for my single minded stubbornness as I sometimes don't see certain issues except as black and white.

You are totally correct that we are screwed either way. I guess I just want it to be more simplistic than that. They do the crime, they do the time.
They mess up again, lock them up and throw away the key.

Posted by: Cricket at July 19, 2005 06:56 PM

I agree with MM's indifference approach. FWIW, Cricket, it does matter to me the details of the prior incident. My Goddaughter's Mom learned recently that her neighbor (a renter of a house) is a registered sex offender. She has spent much of the summer since then visiting grandparents out of state, or in close watch. But she went to the Court and got the file. He committed an act on an older, teenage boy. My goddaughter is a much younger, (obviously) female. It does help, since thus far our efforts to get the land owner to do something have not been successful. But knowing his history makes me think, statistically, that my Goddaughter is in less danger than I would otherwise. Doesn't mean we act ANY differently. But it helps, as we wait for my pal Vinny the Tourch to qualify for probation.

Posted by: KJ at July 19, 2005 11:24 PM

I appreciate that. It just makes me feel better to know that I am not alone in seeing it as an either or situation.

Posted by: Cricket at July 20, 2005 01:24 AM

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