Beyond The Carceral Logic of Civil Commitment: PART 3

The Next System Project: Toshio Meronek and Erica R. Meiners; November 10, 2017

A key component of the current system is its reliance on imprisonment as a response to behaviors and populations which are understood as sources of actual or potential harm. Unfortunately and unsurprisingly, this carceral response seems to multiply and perpetuate harm rather than reducing it.  As we envision a path towards a next system in which communities are able to flourish instead of being torn apart, it is imperative to tackle the question of harm, and dismantle the instincts that lead us too often to reinforce its logic through the very measures we take to respond to it. In this essay for The Next System Project, Erica Meiners and Toshio Meronek rise to this demand by challenging the way our current system, behind the walls of “civil commitment” facilities, perpetuates the carceral logic of harm in its response to the sexual abuse of children, and ask us to imagine what principles would truly underly a system in which “there are no more victims.”  As they write,  “While perhaps not intuitive, asking the hardest questions first—like what to do with society’s so-called ‘worst of the worst’—might be the best place to start building structures that achieve real justice rather than continue to inflict administrative violence.”

 —The Next System Project

Weird Science

Among the most invasive and scientifically contentious tests widely used to determine whether or not a registrant is ready to re-enter society is also one of the most infamous: the penile plethysmograph (PPG for short), also known as phallometry. The test was originally developed in the 1950s to combat the scourge of homosexuality, by a Czech scientist tasked by his government to determine the sexual orientation of suspected homosexuals.

A typical PPG test goes like this: you’re shown images, sometimes videos, of things that are not supposed to turn you on, such as kiddie porn. An instrument placed on your penis measures the size of your member during the show. Get a hard-on, the test’s logic goes, and you might just be a menace to society.

The test’s reliability is flimsy—to the point that in the US judges aren’t allowed to use it to assess guilt in criminal cases. Floridian Douglas Carlin, upon release from civil commitment, told the New York Times his strategy for beating the test: “I just stared at a shelf of cleaning products and read the labels.”

Other critics view it as something that ought to be relegated to science fiction. A California court likened the test to something out of George Orwell’s 1984; writer and trans activist Andrea James compares its use in predicting sex offense recividism to “future crime” described by Philip K. Dick in The Minority Report.

As early as the 1980s, Dr. Robert M. Stein, then Director of the Psychophysiological lab at the Sexual Behavior Clinic in New York City had assessed the test as only useful to measure penile impotence. “Plethysmograph data is totally useless for determining guilt or innocence regarding deviant sexual acts,” he wrote. “It would be like using a personality test to convict someone of burglary.”

In 2006, a California court ruled that the so-called “peter meter” didn’t improve public safety, and went even further, calling it “an unreasonable and unnecessary deprivation of liberty,” after a man convicted of child porn possession sued against having to undergo it as part of his probation.

Why, then, is it still used within civil commitment? In large part because civil commitment is governmentally classed as a “therapeutic,” not criminal justice, domain. Only, in this case, therapy apparently translates into a “pay-it-forward” system of harm that has not impacted the original harms it is supposedly set up to end. From this lens, it is hard to see civil commitment as anything other than a barely cloaked extension of the carceral state—an extralegal “prison” in which people classified as dangerous are exposed to administrative violence, with this violence then justified as a way to supposedly prevent future harms.

Even more widely used—and accepted by court systems as valid—are psychological tests such as Static 99r (introduced in 1999 as the Static 99). “The most widely used sex offender risk assessment instrument in the world,” its creators claim, is based on ten mostly yes-or-no questions, which are supposed to determine whether someone is a low, moderate-low, moderate-high, or high risk for committing violence.

Static 99’s final question, #10, asks whether an individual had “any male victims.” Having “male victims is correlated with measures of sexual deviance and is seen as an indication of increased sexual deviance.” according to a 1998 paper co-authored by Canadian researchers R. Karl Hanson and M.T. Bussière, who surveyed research on people with sex offenses and recidivism rates to conclude that people who have male victims (children or adult) recidivate at a higher rate than those with female victims. Given that nearly all of the people who are serving time for crimes of a sexual nature are men, question ten is unabashedly anti-homosexual. If your answer is yes, you are considered a higher risk than registrants whose alleged victims are female.

Static 99’s youth counterpart, the Juvenile Sex Offender Assessment Protocol (JSOAP) is also problematic, even if it doesn’t explicitly mention same-sex misconduct. Much of JSOAP’s 30-point evaluation revolves around “antisocial behaviors,” such as theft, “angry outbursts,” running away, or stability of caregivers or parents. Effectively, the JSOAP then potentially contributes to locking up some of the most marginal youth—poor, queer, disabled—for circumstances outside of their control, including mental health issues or lack of cookie-cutter family structures. The test has been used as evidence for legislation such as the Adam Walsh Child Protection Act, which was signed into law by George W. Bush in 2006 and allows for children as young as 14 to remain on sex offender registries—for life.

In a multi-state study of the effectiveness of the JSOAP, forensic psychology expert Frank C. DiCataldo concluded that JSOAP had “not proved its mettle” for predicting recidivism.

Polygraphs are not admissible in court and no one—a plaintiff, defendant or a witness—can be legally forced to take a polygraph. Yet in the post-conviction world of people designated as sexually violent, these devices, and others with worse scientific provenance and credibility, proliferate. The American Psychological Association does not endorse the use of polygraphs and states “the most practical advice is to remain skeptical about any conclusion wrung from a polygraph.” A body of research also specifically flags that polygraphs are particularly ineffective for people convicted of sex offenses.

“When it comes to sex offenders, to what extent is” treatment, “at least within the US, rooted in the evidence? Unfortunately, not much,” writes Grant Duwe, a clinician who works with civilly committed individuals in Minnesota.

Polygraphs, phallometry, the Static 99r—these and other tools are widely implemented across all 20 states with civil commitment programs. Countless resources fuel research, reformulations, and reinventions in a decades long quest for “a more perfect instrument.” Yet a technologically optimized peter-meter, or better and cheaper risk assessment tools for people in civil commitment, shouldn’t be our goal. This is exactly the “tinkering around the edges” that does nothing to overhaul a system that apparently does more to harm than help. We can’t quantify the number of sexual assaults that might have been avoided had those resources gone to harm reduction strategies, or minimizing the harmful consequences of a civil commitment system by replacing it with, for example, accessible mental health services; anti-poverty measures such as more employment opportunities; and sex education programs—just a few successful violence reduction strategies documented by the World Health Organization. What, on the other hand, do we know for sure? That the “corrections and rehabilitation” approaches used in the US are failing to end sexual violence.


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