Thursday, September 14, 2017

Author Q & A with Kristen Budd discussing "Deconstructing Incidents of Campus Sexual Assault: Comparing Male and Female Victimizations2.

Budd, K .M, Rocque, M., & Bierie, D. M. (2017). Deconstructing Incidents of Campus Sexual Assault: Comparing Male and Female Victimizations. Sexual Abuse. iFirst.

Research on campus sexual assault (CSA) has almost exclusively drawn on self-report data, examined undergraduates (i.e., students aged 18-24), and focused on female victimization. The few studies which included male CSA victims generally had fewer than 100 male subjects, which makes important statistical analyses difficult. To build upon prior literature and expand knowledge on male CSA victimization, we analyzed more than 5,000 incidents of CSA that were reported to police from across the United States using National Incident-Based Reporting System data (NIBRS; 1993-2014). We expanded victim age ranges to include those 17 to 32 years old and investigated more male CSA victimizations than prior work to date, approximately 350 incidents. Comparisons of male victim versus female victim CSA incidents, estimated via multivariate logistic regression, revealed several important patterns. Although both male and female victims were approximately 19 years old on average, perpetrators who assaulted females tended to be 23 years old while those assaulting males were on average 29. While 1% of CSA perpetrators offending against female victims were themselves female, 17% of perpetrators offending against male victims were female. Finally, CSA incidents with male victims were more likely to include multiple offenders, but less likely to involve stranger or Black perpetrators and also less likely to result in injuries relative to CSA incidents with female victims. Implications are discussed in terms of policing practices, and we pose new questions to the field regarding the study and prevention of CSA.

Could you talk us through where the idea for the research came from?

The idea for this project emerged from two recent events.  The first was a high-profile sexual assault from 2015 that was reported broadly in the press.  In brief, a student at an Ivy League school was convicted of three felony counts of sexual assault committed against an intoxicated and unconscious female student on campus.  Two courageous and fast thinking graduate students stopped the assault, apprehended the perpetrator, and then held him as they waited for law enforcement.  Knowing we had published on sexual assault, friends and colleagues asked us whether this type of sexual assault was rare or common on college campuses.  In short, we did not know the answer.  Although the victimization of college students is frequently studied, we noted only a small number of studies had isolated and focused on the campus setting itself in relation to sexual assault.  

The second event was a realization which came from casual conversations we had with other researchers.  Some colleagues mentioned they had uncovered a substantial number of female offenders in their studies of campus sexual assault (CSA).  However, each researcher also said something akin to “but we never reported those findings.” One reason for their omission(s) was that this finding was atypical (i.e., no other study had reported such a pattern) so each presumed it must be a statistical anomaly. There was also concern that emphasizing female CSA offenders in reports could distract policymakers from male-on-female sexual assaults or even lead to backlash (i.e., given society’s resistance to recognize that females do sexually offend).  However, because we had heard this from multiple researchers, we were in a unique position to realize that this likely was not an anomaly at all. 

We pondered and discussed these two distinct events while working on other projects.  After seeing the call for the special issue in Sexual Abuse about institutions in relation to sexual assault, we knew we had a great opportunity to move beyond discussion and really dig in on CSA by focusing on the campus location itself.  We used the National Incident-Based Reporting System data (also referred to as the “NIBRS”) for a few reasons: (a) it had a clean measure of location, college and university, (b) it drew data from a large number of states and over many years, and (c) it had a relatively large sample size to use.  We then contacted Michael Rocque, a fellow colleague, who had some experience thinking about crime within school contexts.  He agreed to join the project.  This led us to our next challenge: designing the study itself.

What kinds of challenges did you face throughout the process?

In regard to the research process, we wanted to ensure that we had strong logical arguments that supported using the NIBRS data.  Given that most sexual assault is vastly underreported, and that the NIBRS data are based on police reports, we had to think through how the NIBRS data added to the discussion on CSA.  Ultimately, we decided it had unique strengths, such as the ability to speak directly to a subset of cases that law enforcement and university officials would respond to.

A related challenge with the NIBRS was that although we wanted to explore different university roles (e.g., student, teaching assistant, professor, coach) in relation to CSA, we could not.  While the NIBRS data provide more than 20 victim-offender relationships, our “ideal” relationships were not included.  Therefore, we began to shift toward age as inherently interesting and also, perhaps, a proxy for these other roles.  Hence, we did a lot of investigating in regard to college populations (e.g., graduate and undergraduate) and how they have changed over time (e.g., sociodemographics, like minimum and maximum age of entry into college, average age of graduate students, and so on).  We also investigated retirement age for faculty.  This research on age was an important facet that laid the groundwork for the study.  With that said, we knew we had to be inherently mindful about our language-use in the manuscript to ensure we did not suggest age reflected roles and relationships that we simply could not measure and analyze.

We also faced challenges that many other collaborators face.  Two of us work in academia and the other in federal law enforcement.  Given our different obligations and workloads, many drafts were shared over evenings and weekends.  We also have three unique perspectives that span from translational criminology to sociology of law to criminological theory and neuroscience.  We debated language often and constantly re-wrote each other’s work.  This was a challenge, but also a strength.  It maximized the number of ideas both analytically and in terms of communicating those ideas in a way each other could understand. 

What do you believe to be to be the main things that you have learnt about campus sexual assault?

Our study specifically examined differences between male and female victims of CSA.  For a variety of reasons, CSA studies have focused almost exclusively on female victims.  In addition, most previous research has used survey approaches, given the known underreporting with sexual assault in general and even more so on college campuses.  Our use of the NIBRS over an extended period of time allowed us to obtain a sizeable sample of events to specifically compare males to females.  This comparison research had rarely been done due to small sample sizes of male victims of CSA.

We learned that when males were victims in CSA incidents, they were more likely to be victimized by older perpetrators.  Given the focus on undergraduates and sexual victimization, our expanded age range made it possible to see, that at least for reported incidents of CSA against male victims, while on average male victims were 19-years-old, perpetrators were on average 10 years older.  Although female victims were also on average 19-years-old, their offenders were on average only a few years older.  In addition, we found that while males were the most likely perpetrator of both males and female victims in CSA incidents, females were the perpetrators of male victims 17% of the time. 

So, given our conversations with other colleagues about female perpetrators of CSA, these findings in particular were something important that we learned and could disseminate to academics, law enforcement, school administrators, and the like. 

Another important thing we learned, or had reinforced, was that it is really important to identify and then challenge methodological or theoretical assumptions pervasive in a field of study.  We learned a great deal, and offered new facts and puzzles to the field, because of the inclusion of male victims, female offenders, and considering those below age 18 and above age 22.

Now that you’ve published the article, what are some implications for practitioners?

We believe an implication of our work is that school officials need to recognize that males are victims of sexual assault a non-trivial amount of time.  Since our data relied on reported events, it is likely that there are even more unreported male victims that are in need of attention.  Prevention and response programming on campuses need to ensure that prevention services are targeted toward female victims and male perpetrators, but also targeted toward male victims and female offenders.

Second, practitioners need to pay attention to the differences in CSA between female and male victims, including age of perpetrator--that the average age for the perpetrators of male victims was 29 indicates there may be a different sort of relationship than the standard party/hook up culture that has been the focus of much work on CSA.  In addition, a non-trivial percentage of males were victimized by females, which is an overlooked area of potential intervention.  

Thursday, September 7, 2017

The Cure Violence Program: If there is a “cure” for violence, where does it lie?

By Kieran McCartan, PhD and David S. Prescott, LICSW

Many of us recall the confusion of early attempts to prevent, treat, resolve, and grow beyond the harm of sexual violence. Early observations that there was “no cure” for sexual violence often led to misunderstanding rather than deeper knowledge about assessing, treating, and preventing it. Over time, many of us worked tirelessly to remind the world that the act of sexual abuse is a behaviour that can be changed and not simply an incurable disorder; at the individual level, our clients are human beings who change over time and not simply immutable monsters. At street level, the “no-cure language” has changed in statutes. However, the search for the societal ills that result in violence continue – and yes, at that level of abstraction, many believe there is a cure. Many organizations have championed efforts at reducing sexual violence; this blog focuses on one that is seeking to prevent all violence.

Recently, Kieran travelled to the University of Illinois at Chicago and met with staff from the Cure Violence program. The idea behind Cure Violence is that the world has been looking at the idea of violence from a problematic perspective for many years, and that we can prevent – and not just respond to – violence. The Cure Violence program has operated for over fifteen years and across nine different countries. Traditional responses to violence are rooted in notions of criminal justice, with a punitive and reactive response; communities punish and rehabilitate violent offenders after the fact. Therefore, you need to become a perpetrator of violence, have a victim, and be involved with the criminal justice system in some capacity before you can learn how to prevent future violent acts. People who perpetrate sexual abuse commonly experience this, despite the emergence of support groups and organizations whose mission is to help those who are afraid that abuse may occur and are seeking help.

The Cure Violence program, however, looks at violence from a more holistic perspective, stating that society needs to view violence as a health issue and that we can use a public health approach to respond to it. The core idea underlying the program is that violence operates like an epidemic: it spreads across neighbours (through social learning) infecting people socially, psychologically, and culturally, resulting in more violence. Thus, violence inevitably begets more violence, even though the risk factors and context in which they exist can change from one person to the next. Although the program originally focused on intercity gang violence, it can be used to discuss and think about various forms of violence, including sexual violence. Through the work of staff in Cure Violence the cycle and spread of violence can be interpreted and, therefore, stopped, by:

-          Detecting and interrupting potentially violent conflicts

The program employs violence interrupters to work within vulnerable communities, to help identify and provide early intervention to sources of violence. These interrupters have to have credibility within the communities that they work in and be seen as a legitimate resources by the at risk populations, because they come from these communities and have histories of violence themselves as perpetrators or victims. The interrupters work to defuse the situation and refer the community members onto other organisations that can help support them in a more bespoke and appropriate, way.


-          Identify and treat individuals at the highest risk

Outreach workers help support the vulnerable community by offering them ongoing and appropriate support. The aim of this part of the program is to work with the people who are at the highest risk of committing violence and offer then support in making better long term life choices that do not involve violence.


-          Mobilise communities to change norms

The program works with all levels of community members in the communities that it works within to enable social change so that the community as a whole rejects violence; suggesting that there are other means of conflict resolution and new, adaptive ways of moving forward.

The Cure Violence program provides insight into preventing sexual violence; it provides a model and way of thinking/working in this arena. There are differences between sexual and other forms of violence, but this program offers us adaptability rather than roadblocks. Reflecting on the Cure Violence program and how it relates to sexual violence:

-          Victims of violence and victims of sexual violence often suffer from similar psychology, emotional, social, health, economic and life course challenges as a consequence;

-          Often times sexual violence is lumped together in communities with high levels of social, political, and health vulnerabilities (such as other forms of violence);

-          There is often a relationship between being a victim of general violence and being a victim of sexual violence. This can often be endemic in communities, families, peer groups and geographical areas;

-          Some perpetrators of sexual violence have been victims of sexual violence themselves previously, as well as other forms of violence and abuse;

-          There is a growing recognition that sexual violence, like other forms of violence, occurs within community structures (i.e., sports clubs, communities, gangs, networks, etc.). Therefore, understanding how to respond to affected communities in an appropriate way becomes all the more urgent;

-          Sexual abuse, like other types of violence, can be prevented;

-          We need to understand and honour the voices of both those who perpetrate and are victimised by sexual violence so that we can develop better resources to stop sexual violence before it happens (we see this in the prevention of sexual violence re-offending, but we need to move it further out into society); affected communities can be leaders in this area.

-          We need better support and awareness for at-risk communities so that sexual violence can be prevented;

-          We need to develop better resources, means and mechanisms for engaging communities in changing social norms around=d sexual violence. We have started to do this over the past 10 years but we need to get better at it and learning from an equivalent program would enable us to do that.

Cure Violence asks us to reconceptualise the reality of violence, and therefore how we can best respond to it. Some organizations are starting to do this with sexual violence, taking a preventive, public health approach and it seems that the Cure Violence program may help just on our path to achieving it.

Wednesday, August 23, 2017

Step One of Cultural Competency Addressing Privilege & Power

Note to readers: This week’s Blog by Cordelia builds upon and adds to the blog that myself and David Prescott wrote last week on “Race, culture, community & abuse”.  Thanks, Kieran.

by Cordelia Anderson

Child sexual abuse, sexual violence and pornography are not easy topics to talk about, but in my experience raising up questions related to power, privilege and race are even tougher. Just like trying to talk about “sex offenders”, invitations to talk about such difficult topics often results in defensive, protective, ambivalence, or even angry responses. Most organizations who work with victims and survivors are raising these difficult questions.  In fact, most of my thinking related to - power, privilege & what’s all involved in cultural competency -  I have learned from and with those who work with survivors/victims, and with those who work on social justice as part of prevention.  

However, I wonder how the sensitive but pervasive issues related to our own sense of power, race, class, and disabilities translate into the work of treating and researching those who sexually offend.  As a member of this ATSA Prevention Committee, I am hoping our entire organization will grapple with how this all fits within the priorities and engage in these discussions. I am writing this blog as an invitation to further conversations and perhaps more attention to this in your practice, your research and in discussions at our conferences.

Questions to consider include:
-     Are White/Caucasian professionals sensitive to the unique experiences of clients who are people of color? Or, what it is like for professionals in the field who are people of color who work in dominantly White organizations?
-     Do White/Caucasian professionals recognize limits to their understanding of ways clients of color experience prejudices across settings, including in our own offices?
-      Do we as White/Caucasian professional spend time reflecting on our own power and privilege and how this influences the personal and professional decisions we make?

We know that sexual abuse thrives in secrecy and shame. For years, our organization and our practices might have reflected the isolation of the very issue we have been working on.  More recently, we have begun to also understand the need for increasing cultural competency. However, if we expand our vision even further, we will see that there are tensions between the focus on cultural competency versus racial justice.  At the core of that difference is our need to not only learn more about the individuals we work with but to begin to address our individual and collective privileges as professionals that do this work.    We have made a commitment to healing and to minimize the harm that has been done.  But what if we are also, unintentionally increasing the harm? 

Therapists and advocates appreciate the importance of dealing with the whole person, their family and community of support to address the presenting problem or issue.  Those who do prevention work know the importance of expanding that view even further to also address the environment and social norms that create families, communities, organizations and societies where harm is likely to develop and continue. 

The issues we work with are complex enough that the tendency is to say we cannot afford to further muddy the waters by addressing race, power and privilege.  Or we may say that there are more pressing issues in the work we do in terms of community safety. 

I’ve been at this work for over 40 years and in the time, I have left, I hope to engage in meaningful conversations with colleagues and organizations that I care deeply about in ways that address the intersections of these issues. I believe the first step toward cultural competency and a social justice framework is to more fully and intentionally face my white privilege and the norms of institutional and systemic white supremacy. It is not comfortable to talk about or easy work to do but it is essential.  One example of the work in this area that’s underway is the 2018 theme of the MASOC/MATSA’s conference is cultural competency. 

Since first writing this blog in May, and then holding off on submitting it until closer to the ATSA conference, there has been so much happening in this country and around the world that raises the urgency of engaging in these discussions and taking appropriate action. With such challenging issues, it can be helpful to consider actions we can actually take. We can:
-    Commit to meaningful – though often uncomfortable – conversations about our own privilege and power.
-     Commit to on-going learning about how such power and privilege affects the effectiveness of our work and quality of our relationships.
-         Intentionally address power and privilege when creating goals for our own work and the goals of our clients.

I am writing with great humility about my own limitations related to all of this. I know likely, I stepped in it in one way or another. Still, I believe the risk is worth it to get more meaningful conversations on this topic going and to revisit ATSA’s role.  I believe it is an opportune time for ATSA to do even more with these conversations and related actions. The ATSA Prevention Committee is hosting a panel related to how this fits with prevention. It will be on Thursday, October, 26, from 5-6. We hope you can attend, read some of the writings below and/or find other ways to engage further in this work.

For those interested in this topic these readings may be of interest:

Hard Conversations: An Introduction to Racism

Say the Wrong Thing: Stories and Strategies for Racial Justice and Authentic Community, by Dr. Amanda Kemp, Lisa Graustein, June 16, 2016,

The Audrey Lorde Project;

“White Privilege: Unpacking the Invisible Backpack,” by Peggy McIntosh,;

“Why I Left My White Therapist”, Chaya Babu, 1/18/17

Friday, August 18, 2017

Race, culture, community and abuse

By Kieran McCartan, PhD, & David Prescott, LICSW

Abuse is abuse, regardless of who perpetrates it. Sexual abuse is perpetrated by people, either individually or collectively; it is not committed by cultures, races or communities as a whole. As we know, the majority of sexual abuse is contextual and situational, which means that cultures, races or communities may believe that some forms of sexual abuse is acceptable, that it may go unpunished or can be covered up. Examples of this are evident from the practices of certain indigenous cultures to the secrecy of activities within some religious sects, to the culture of silence within some university sports teams. This may mean that certain groupings of people (whether they be communities of a certain race, culture, or combination of the two) may be more prone to sexual abuse that receives little or no response from the wider community. However, it does not mean all of the larger culture, race or community will engage in or condone the abuse.

In England over the last couple of years we have started to see the emergence of gangs of ethnic minority men, mainly Asian, organising and perpetrating the sexual abuse of vulnerable young white girls (in Rotherman, Peterborough, Newcastle and other locations). The problem is that, like all sexual abuse, this is not new; ethnic- and gender-based violence has occurred as long as there has been gender and ethnicity. What is new is the size and scope of the abuse, and the factors that capture the attention of the majority culture. Clearly, we have we not done enough to prevent, educate and prosecute individuals and communities around sexual abuse. There is an argument that a perfect storm of political correctness, fear of reprisal and a dissolving of intra as well inter community relations has resulted in these cases not being prosecuted as they should (The independent).This is unfortunate, as waves of sexual violence such as these have occurred elsewhere in human history (e.g., the sexual assault of women in times of war and its aftermath).

The cases in the UK have been reported on as a race issue with male, ethnic minority men sexually abusing white, working class, vulnerable white girls. This has fuelled conversations about immigration and race relations, thereby making an already complicated issue even more loaded. Which has resulted in a number or articles and think pieces, each of varying degrees of nuance and rigour, from journalists (The independent) and political leaders (Sarah Champion MP; Sajid Javid MP; Jeremy Corbyn MP) weighing in on the debate. However, the real issue here is that this was targeted grooming of children by adults who happened not to be white against victims who were white. The same offences and behaviours are happening in white communities as we write this.

We would argue that overarching race and cultural issues are not precursors to sexual abuse, especially child sexual abuse. Instead, abuse-related and problematic sub-cultural factors (and the processes underlying them) can indeed contribute to abuse. Sexual and social deviance does not adhere to cultural, ethnic, or national boundaries. What we are seeing in these cases are people who sexually abuse children because they want to, regardless of their own race or culture. The fact that the victims are white and of a different cultural heritage speaks more to elements of criminality than over-arching cultural themes. These people are making a decision to sexually abuse across race and cultural lines, why? Is it because vulnerable white girls are easier for them to get access to, is it because they don’t want to offender against their own culture or race, or is it simply access to any child?

The race or the culture of a perpetrator of sexual harm should play no role, positivity or negatively, in formal responses to abuse. Those who abuse should receive the same prosecution, as well as treatment and rehabilitation opportunities. Interestingly, research by Professor Malcolm Cowburn over the past 20 years shows that ethnic minority communities are less likely to engage with treatment (especially sex offender treatment), arguing that it does not speak to their cultural needs. We need to get better – a lot better – at understanding that the issues that race and culture throw up, as well as how these can be better navigated in treatment. However, a part of this this improvement invites a reflection: how many of these cultural and race issues are real, tangible issues and how many are our own cognitive distortions that serve to prevent engagement?

In terms of the direction that the field of sexual harm is moving – towards a combined model of prevention/rehabilitation, we need to do more to engage with all communities on understanding, preventing and responding to sexual abuse. We need to work more effectively and openly with all races, cultures and communities to see how we can adapt our messages around sexual abuse, so that we can better prevent it. Sexual abuse is an interpersonal offence, its committed by people and therefore has to be prevented by people of all races, cultures and communities.

Tuesday, August 8, 2017

US Supreme Court to Decide Karsjens v. Piper: Part 2 of 2

Note to Readers:  The US Supreme Court has been asked to review Karsjens v. Piper, the federal lawsuit originating at the Minnesota Sex Offender Program.  The Court’s decision to accept or reject the appeal (either way) will reshape sexual offender civil commitment in the US.  Since June, four amicus briefs were filed to try to persuade justices to accept the case.  Summaries herein are largely excerpts, with links to the entire briefs.  For a review of the briefs, what’s at stake, and why SAJRT Blogger, Jon Brandt believes the Supreme Court will accept the appeal, this blog has been split into two parts.  Part 1 was published last week.  This is Part 2. - Kieran 

By Jon Brandt, MSW, LICSW

ATSA has filed amicus briefs in many important court cases, and some have been cited by the Supreme Court (SCOTUS).  ATSA members are likely to recognize the mission-driven arguments crafted mostly by President Mike Miner and Executive Director, Maia Christopher.   “Granting review here is necessary to take account of important advances in the empirical study of (1) rates of recidivism among sexual offenders, (2) effective assessment, treatment, and management of sexual offenders, and (3) factors that influence the effectiveness of treatment interventions.  It is a central tenet of mental health care that psychiatric treatment of individuals facing involuntary hospitalization must be provided in the least restrictive environment in which such individuals can safely and effectively be provided services.”

“As this Court has recognized, the extent to which a state policy furthers a legislative objective (under any standard of review) is an empirical question. This Court’s past decisions examining sexual offender legislation have, unfortunately, relied on sources that derived their information from public discourse – not from the empirical literature. Unfortunately, discourse regarding sex offender management and treatment has often been dominated by fear and misinformation and not by accumulating empirical evidence.  Careful and impartial review of the empirical evidence in constitutional decision-making is essential in discharging this Court’s solemn duty to review legislation imposing special disabilities upon disfavored groups, and crucial in standing guard against the kind of ‘class or caste’ treatment that the Fourteenth Amendment was designed to abolish.”

The Fair Punishment Project (FPP) is a joint project of the Charles Hamilton Houston Institute for Race and Justice and the Criminal Justice Institute, both at Harvard Law School.  The FPP brief was joined by four criminology scholars.  “The right to be free from confinement is ‘of the very essence of a scheme of ordered liberty.’ It forms the basis of other rights deemed fundamental in this country… and it prevents this nation from devolving into tyranny. The government must tread lightly when it intrudes on that freedom, enacting safeguards to prevent it from overreaching.  When republican institutions pass laws in response to moral panics and popular passions, with little thought, deliberation, and scrutiny, the rights of the most vulnerable and unpopular suffer. When ‘prejudice’ against unpopular groups curtails the operation of those political processes ordinarily to be relied upon to protect minorities, more searching judicial inquiry is required.”
“Moral panics have recurred in the history of our democratic republic, and they have led to some of the greatest infringements on fundamental rights and enormous national embarrassments. Most famously, just weeks after Pearl Harbor, public opinion demanded the removal of all Japanese Americans from the west coast; Japanese internment followed. Fear of Soviet aggression lead to McCarthyism and the Red Scare. Fear over same-sex marriage led to the passage of thirteen referenda barring same-sex marriage. Courts have both the authority and the duty to intervene in cases where popular passions lead legislatures to infringe on the ‘fundamental rights and liberties’ that are deeply rooted in this Nation’s history and tradition.   Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society’s demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life.  This case cries out for judicial intervention.”

“There is broad consensus that the current system of civil commitment of sex offenders in Minnesota captures too many people and keeps many of them too long.”  These are the words of the Honorable Eric Magnuson, former Chief Justice of the Minnesota Supreme Court, in a 2013 report to the US District Court for Minnesota.  If readers want to understand why “no one has any realistic hope of ever getting out of this ‘civil’ detention,” read Federal Judge Donovan Frank’s compelling 2015 opinion, finding SOCC in Minnesota unconstitutional.  If readers want to understand why SOCC is more about public policy than public safety, read the full 2017 amicus briefs.   
Undoubtedly, there are some dangerous individuals under SOCC, but with equal certainty, SOCC is overreaching.  SOCC is a slippery slope.  On the front end, SOCC creates a tenuous relationship between psychology and law.  On the back end, it conflates past heinous acts with future dangerousness.  Two respected New York Law School professors, Michael Perlin and Heather Ellis Cucolo, are signatories of the “Law Professor’s Amicus Brief,” and recently published a thoroughly researched book that takes aim at sexual offender policies in the US.  In Shaming the Constitution: The Detrimental Results of Sexual Violent Predator Legislation, (Temple University Press, 2017), Professors Perlin and Cucolo write, “society’s ‘solutions’ to the issues before us are all wrong… not simply ineffective, but counterproductive, failing to add to public safety while ruining lives.  Media hysteria exacerbates all of this and strangles any attempts at legislatively remediating the situation.  Forensic psychologists have demonstrated – beyond doubt – that the actuarial instruments regularly used to determine who is a ‘predator’ are fatally flawed.  Our sexual offender laws… shame and humiliate those who violate them.  In doing so… they ignore and mock the due process clause, the ex post facto clause, the double jeopardy clause, and the cruel and unusual punishment clause… they truly shame the constitution and stain the political and social fabric of our nation.”
The Appellate Court, in finding MSOP constitutional, abdicated judicial oversight for ensuring balance between public safety and civil rights.  The Eighth Circuit ruling not only approves status quo in Minnesota and other states, it affirms false claims that “sex offenders” are an intrinsically dangerous subclass of US citizens.  If SCOTUS rejects the appeal, the Eighth Circuit ruling becomes the law of the land.  Consider some conditions of SOCC, which currently exist in Minnesota, that could be extended nationwide: 
  • Detainees can be confined indefinitely under the guise of treatment because there is no constitutional right “to appropriate or effective or reasonable treatment.”
  • There is no right to the least restrictive level of confinement.
  • The threshold out of SOCC can be higher than the threshold in.
  • Detainees can be confined for years without evaluations to ensure criteria for confinement.
  • There is no affirmative duty for the state to release detainees who are no longer dangerous.
  • The burden of eligibility/application for reduction of custody can be placed on detainees.
  • Executive orders can broadly block discharges.
  • Violations of civil rights are not unconstitutional unless such violations “shock the conscience.”  
In Minnesota and several other states, there are many detainees who, by consensus among professionals, could be safely released (conditionally or unconditionally) to the community, but they remain imprisoned for reasons that are clearly political.  Apparently, the Eighth Circuit was not moved by the prospect of “political prisoners.”  Hopefully, the Supreme Court will see Karsjens differently.
Justice Anthony Kennedy wrote in  Romer v. Evans (1996) that, “laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected [homosexuals].  If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”  In Kansas v. Hendricks (1997), Justice Kennedy warned that SOCC, in concept or practice, could unconstitutionally overreach.  Twenty years later, perhaps Justice Kennedy will be the voice that unites liberal and conservative justices to bring new guidance to SOCC in the US.
Another indication that the Supreme Court might grant certiorari (accept the appeal), and potentially reverse the Eighth Circuit, is the unanimous June 2017 SCOTUS opinion in Packingham v. North Carolina.  Applying the proper standard of legal review is at the core of Karsjens.  Judge Frank ruled that SOCC was subject to “strict scrutiny” and therefore SOCC laws must be “narrowly tailored” to achieve their purpose.  In reversing the District Court, the Appellate Court said Judge Frank should have applied a lower legal standard; that SOCC laws must bear only a “reasonable relationship” to a legitimate government interest.  However, in Packingham, Justice Kennedy wrote that the North Carolina law broadly restricting “sex offenders” from accessing the Internet was overreaching, and that such infringements on civil liberties must be “narrowly tailored.”  If justices apply the same reasoning to liberty interests under SOCC, perhaps they will agree to review Karsjens
Judge Frank, plaintiffs’ attorneys, and the amicus briefs state that the goal of Karsjens is not to strike down SOCC broadly, but rather to acknowledge the constitutional infirmities of a system that is overreaching, and restore the constitutional integrity that SCOTUS established in previous SOCC rulings.  The Eighth Circuit held that the 14th Amendment’s right to due process applies only to “fundamental liberty interests,” and that the Supreme Court “has never declared that persons who pose a significant danger to themselves or others possess a fundamental liberty interest in freedom from physical restraint.”  Well, now SCOTUS has a vehicle to fix that.  Substantive due process and fundamental liberty interests are bedrock in the history of civil rights – constitutional rights that should be inalienable for all Americans.
Much appreciation to attorneys who provided guidance for this op-ed piece.

Tuesday, August 1, 2017

US Supreme Court to Decide Karsjens v. Piper (Part 1 of 2)

Note to Readers:  The US Supreme Court has been asked to review Karsjens v. Piper, the federal lawsuit originating at the Minnesota Sex Offender Program.  The Court’s decision to accept or reject the appeal (either way) will reshape sexual offender civil commitment in the US.  Since June, four amicus briefs were filed to try to persuade justices to accept the case.  Links to the entire briefs are below.  For a review of the briefs, what’s at stake, and why SAJRT Blogger, Jon Brandt believes the Supreme Court will accept the appeal, this MSOP update has been split into two parts.  Part 2 will be published next week.  - Kieran  

By Jon Brandt, MSW, LICSW
In December 2011, when Kevin Scott Karsjens and 13 other men at the Minnesota Sex Offender Program (MSOP) filed a pro se petition with the Federal Court in Minnesota, they probably had a little hope and a lot of doubt that it would go anywhere.  Thousands of previous petitions have been tossed out of courts over 20 years, so why is Karsjens v. Piper headed to the Supreme Court (SCOTUS)?  For the same simple reason that the US District Court accepted Karsjens: an involuntary treatment program with more than 700 detainees, and exits politically blocked for two decades, is “clearly broken.” 
More than five years into Karsjens, this case is progressively more difficult to unpack, but here’s a two-paragraph review:  In early 2012, the US District Court began a careful review of MSOP.  After more than three years of investigations, and a six week trial, Federal Judge Donovan Frank released the court’s findings.  In June 2015, in a highly principled opinion, Judge Frank determined that the sexual offender civil commitment (SOCC) scheme in Minnesota was indeed broken: unconstitutional on 12 counts.  The State maintained there was nothing wrong at MSOP or with SOCC in Minnesota; that the problem was with Judge Frank’s ruling.  The US Court of Appeals agreed. 
The disparate opinions by the two courts might be explained by the District Court viewing Karsjens as primarily a civil rights case for a state institution that is “clearly broken,” while the Appellate Court viewed the case as a states’ rights matter – essentially, “if it’s broken, it’s not illegally broken.”  In June 2017, Dan Gustafson, lead attorney for the Plaintiffs (MSOP clients) filed a persuasive appeal with SCOTUS (Docket 16-1394).  In July, Defendants (State of Minnesota) filed their opposition.
So, why do I think the Supreme Court will accept the appeal?  In part, on the strength of four powerful amicus briefs by nationally recognized law professors, scholars, and respected stakeholders. The briefs vigorously attack the Eighth Circuit’s defense of status quo, describe how SOCC laws/programs conflict with both constitutional principles and case law, and take careful aim to convince justices to accept the appeal.  The authors eloquently appeal to both liberal and conservative perspectives, explain how SOCC schemes are contrary to empirical evidence, compare Karsjens with some of the ground-breaking civil rights cases in US history, and provide sound case law and strong arguments to reinstate the District Court’s determinations of “unconstitutional.”  All the briefs boldly maintain that civil regulations for “sex offenders” are rooted more in anger, fear, and moral panic, than bona fide concerns for public safety, and that SOCC is at the pinnacle of such civil regulations.  Each of the briefs take a somewhat different approach to try to persuade justices that SOCC in Minnesota (and other states) is unconstitutional, under at least the Fourteenth Amendment of the US Constitution - that no state shall deprive any person of life, liberty, or property, without due process of law.  Summaries are largely excerpts from the amicus briefs.
Led by Eric Janus, (former President and Dean of Minnesota’s Mitchell Hamline Law School), 26 legal scholars from across the US joined in this amicus brief.   Janus expressed that SCOTUS is not being asked to revisit Kansas v. Hendricks (1997), which narrowly approved SOCC in concept, but rather to uphold the constitutional principles that have been compromised by SOCC, in practice, now for 20 years.   “This case should be reviewed by the Court for three reasons: First, the Court of Appeals’ decision sharply departs from 40 years of this Court’s civil commitment jurisprudence and decisions by multiple state courts of last resort, applying strict scrutiny analysis. Second, the MSOP systematically thwarts the liberty interests of over 700 detained people in Minnesota; more than 5,000 people are deprived of their liberty under these laws nationwide. If the Court of Appeals’ rule stands, there is no remedy when States systematically abuse their civil commitment programs. Third, the rule adopted by the Court of Appeals undercuts the checks and balances to restrain governmental overreach of fundamental individual liberty.”
“There is one characteristic that always marks a genuine civil commitment scheme: the durational limit. Confinement ends just as soon as its justification ends.  The Minnesota Supreme Court approved MSOP’s scheme, “so long as the statutory discharge criteria are applied in such a way that the person subject to commitment… is confined only so long as he or she continues both to need further inpatient treatment and supervision for his sexual disorder and to pose a danger to the public.”  These are not constitutionally insignificant “rounding errors” that are the unfortunate consequence of any human endeavor. There are strong reasons to conclude that there are hundreds of people held unconstitutionally because of the design of the MSOP.  If these defects are complex and interrelated, their cumulative effect is simple and clear: Minnesota has systematically and intentionally created a confinement system, detaining more than 700 individuals, that ignores and thwarts the constitutionally required duration limitations of a bona fide civil commitment system.” 
The Cato Institute is a nonpartisan public-policy research foundation dedicated to advancing the principles of individual liberty, free markets, and limited government.  Reason Foundation is a nonpartisan public-policy think tank that advances a free society by developing and promoting libertarian principles and policies.  “The Eighth Circuit held that Petitioners have no liberty interest in freedom from physical restraint—not that their liberty interest must be balanced against the state’s interest in protecting the public from violence, but that for sex offenders, that liberty interest simply does not exist.  The MSOP’s complete failure to release any civilly committed sex offender is not simply a back-end political problem; it is a design flaw baked into the system.  Despite its stated goals, Minnesota’s treatment approach falls flat and falls hard.  By the state’s own admission, hundreds of civilly committed individuals have never received an assessment of their risk to the public.  The MSOP is aware that at least some of the people in its custody satisfy statutory discharge criteria. Sex-offender laws have bored a hole in the nation’s constitutional fabric.  As state and federal governments expand that hole - threatening to swallow other rights and others’ rights—this Court should intervene.”
Is SOCC creating “political prisoners?”  Review of the other amicus briefs and commentary, in Part 2…
Appreciation to the attorneys who provided guidance for this op-ed piece.

Tuesday, July 25, 2017

Communicating about child sexual abuse with the public: learning the lessons from public awareness campaigns

By Hazel Kemshall & Heather Moulden
How effective are public awareness campaigns about Child Sexual Abuse (CSA) and what does research tell us about the most useful approaches?  In a recent review of such campaigns Kemshall and Moulden (2016) outline the key trends and research evidence.  The article looks at developments in techniques and methods since the 1990s.  Public awareness can be defined as a campaign that uses: ‘, messaging, and an organised set of communication activities to generate specific outcomes in a large number of individuals and in a specific period of time.’ (Coffman, 2002, p. 2). Campaigns can also be distinguished between those that: ’try to change in individuals the behaviours that lead to social problems or promote behaviours that lead to improved social well-being’, and campaigns that aim to mobilize ‘public will’ or galvanize public action for policy change (2002, p. 2).  Public awareness campaigns on CSA have seen both types developed, often linked to the aims and objectives of the agency undertaking the campaign.  A perennial problem in CSA public awareness campaigns has been adequately demonstrating the connection between the activities of the campaign, particularly in raising awareness, and this awareness resulting in desirable actions.  This has partly been due to methodological limits, and lack of money for evaluations. However, consideration of the available research indicates that the following are important to effectiveness:

  • Developing and enhancing personal responsibility and the ability to take appropriate behaviour.  This has largely been through Bystander programmes (Banyard, 2015; Fulu, Kerr-Wilson, and Lang, 2014; Kemshall and Moulden, 2016 for a full discussion).
  • Targeting of campaigns at specific groups and communities (sometimes through collaborative partnerships).  This has usually been via community education programmes, for example targeted at parents, carers, and perpetrators. There are mixed research results, but more recent evaluations, particularly of perpetrator targeting, have been positive (Beier et al, 2015; Kemshall and Moulden, 2016 for a further discussion).
  • Greater use of social marketing techniques, particularly for multi-faceted large scale campaigns (Schober et al, 2012a, b;  Kemshall and Moulden, 2016 for further discussion).

Overall, the growing evidence base indicates that a focus on personal responsibility, action and skill promotion are important ingredients to success.

More recent campaigning and their subsequent evaluations have indicated that multi-faceted and multi-layered approaches can improve effectiveness.  Such methods aim to identify community based problems and solutions, with a focus on systematic evidence collection and the use of local collaborative partnerships.  A key campaign is the ‘Enough Abuse’ campaign in Massachusetts which was a ‘state-wide education and community

mobilization effort to prevent CSA in Massachusetts’ (see

(Schober et al., 2012b; Massachusetts Citizens for Children, 2001; 2010; 2014; see Kemshall and Moulden, 2016 for full discussion).

Looking forward, evaluation would be improved by all campaigns having clear outcomes, intermediate and ultimate behaviour change, and short and long-term follow-up; plus adequate funding to carry out robust evaluation.  However, research to date appears to indicate that campaigns which focus on increased self-efficacy and ‘knowing what to do’; normalization of expectations to act positively; collaborative partnerships to improve effective targeting; skill enhancement; and positive framing of victims have greater impact.  Framing CSA as a social problem requiring broad, multi-faceted and multi-layered campaigns has been a significant shift, and there is both a growing evidence base on effectiveness and helpful information on how to replicate the approach (Massachusetts Citizens for Children, 2001; 2010; 2014). There has also been a subtle shift from public awareness to public action-simply being aware is not enough.   The future for CSA prevention lies not in public awareness campaigns, but rather in public action campaigns.

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