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January 27, 2011

"Is the judicial system sexist when it comes to sex crimes?"

The provocative question in the title of this post is from the sub-headline of this local article from Florida, which carries the main headline "Do Female Sex Offenders Receive a Lighter Punishment Compared to Males?".  Here is the story of the case prompting these questions:

Sentencing for an Okaloosa sex offender has sparked a lot of discussion. 31-year old Michelle Kemp had sex with a 15-year-old boy but she will not be going to prison.  The lawyers on both sides of the case insist, when it comes to sex crimes, the judicial system is not sexist

Michelle Kemp was arrested back in August 2009 for having sex with a 15-year-old. The boy's family decided not to press charges if the relationship stopped -- but it didn’t.  In December, Kemp drove more than 100 miles from her home in Crestview to pick the boy up at a drug treatment center in Bay County, where the two had sex again.

Kemp was arrested again and charged with 2nd degree felony lewd and lascivious battery. She faced up to 15-years in prison but walked away with just 2 years of house arrest and 3 years of probation.  The case is strikingly similar to one that received national attention back in 2005 when former Tampa middle school teacher Debra Lafave had sex with a 14-year old boy.  Lafave received house arrest and probation, but no prison time.

It was a very different case for Tim McGarry.  The former Thomas Drive Fire Chief is serving a 40-year sentence for having sex with underage girls.  The disparity in treatment makes some wonder if the judicial system is sexist when it comes to sex crimes.

District 1 Chief Assistant State Attorney Bill Bishop says no. "We don't make any distinction one way or another whether or not someone who commits a sexual offense is a male or a female. We make our decisions based on the evidence we have available and the witnesses we have available to prosecute" Bishop says.

In Kemp's case, the victim would not cooperate with authorities.  Kemp’s attorney, Jonathon Dingus says gender did not play a role in her sentencing.  "She was treated the same in a scenario like we have here where the complainant didn't want to go through the trial" Dingus says.

I am not at all surprised to hear the lawyers involved in a spotlighted case deny that gender had an impact at sentencing. But, based on my own impressions from blogging lots of sex offense sentencing outcomes, I would also not be at all surprised if a statistical study controlling for other factors showed that women typically get lower sentences for sex crimes than men, especially when the crime involves consensual sexual encounters with young teens. Of course, such a study would not necessarily provide proof of sexism: sentencing judges may generally (and correctly?) conclude that female sex offenders are generally less likely to recidivate than men.

January 27, 2011 at 09:04 AM | Permalink

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Comments

she's lucky that she did not talk to him in a chat room first.

Posted by: virginia | Jan 27, 2011 9:42:23 AM

My perception is it may be difficult to compare apples to apples in these cases, because essentially zero women are caught in the internet-based sex crimes that so often land men in federal court and lead to massive sentences (except for the occassional scenario where a woman is involved in letting men molest her children or produce CP).

It's still probably true that male teachers who get caught sleeping with teenage students get harsher sentences than women teachers doing the same, and there's probably some sexism at work in how the crimes are percieved. I'd also guess, though, that there is usually more evidence of coercion or attempts at coercive cover ups on the part of the men, and more outrage on the part of the girls' parents. Perception is also affected by the fact that most of the women seem to act on a misguided/mentally unstable sense of being "in love" with the underage boy, while the men more often seem to have been just out to get laid.

Posted by: Jay | Jan 27, 2011 12:26:26 PM

"Perception is also affected by the fact that most of the women seem to act on a misguided/mentally unstable sense of being 'in love' with the underage boy, while the men more often seem to have been just out to get laid."

And there may be a similar asymmetry on the part of the teens.

Posted by: Kent Scheidegger | Jan 27, 2011 1:06:07 PM

Kemp was given a free pass by the parents and still drove 100 miles to get her jollies. If that doesn't show a likelihood of recidivism, I don't know what does. A male teacher would serve time even for just fondling breasts once.

The disparity has nothing to do with the likelihood of recidivism--it's a product of the "where were these teachers when I was in school?" subconscience by a predominantly male judiciary.

Posted by: Res ipsa | Jan 27, 2011 2:31:38 PM

Is the Pope Catholic?

Yes, I am sure that attorneys representing female defendants will claim that their case is the exception to the glaringly obvious rule that applies in these cases.

Kent: Would your theory apply in cases where the gender of the victim and defendant was identical?

Prof. Berman:

In essence, what you propose would be government endorsement of sexism.

Of course, such a study would not necessarily provide proof of sexism: sentencing judges may generally (and correctly?) conclude that female sex offenders are generally less likely to recidivate than men.

May they so conclude, given how substantially underinclusive and overinclusive such a finding would be?

Posted by: Alec | Jan 27, 2011 4:10:46 PM

I am not sure, Alec, what you are suggesting would be "government endorsement of sexism." Federal law (and many state laws) require judges to seek to "to protect the public from further crimes of the defendant." Suppose a federal judge at a sentencing for a female offender is given by the defense attorney some very good (but not perfect) empirical studies indicating that female sex offenders are much less likely to re-offend than similar male sex offenders. Are you saying to would be "sexist" for a federal judge to decide a long prison term for incapacitation purposes is less necessary for that female defendant?

Notably, another provision of federal law prohibits gender-based sentencing determinations, so I think it is a really hard question as to just whether and how a sentencing judge should deal with (valid) gender-based evidence of risk of recidivism. That said, my main point was that if there are gendered difference in sentencing decision-making, it may reflect judicial belief in recidivism risks rather than "pure" sexism (which I define as a favoring or disfavoring of a person SOLELY due to gender).

Posted by: Doug B. | Jan 27, 2011 4:43:31 PM

Professor Berman,

I am suggesting that making a finding that incapacitation is less necessary for female offenders might implicate the Fourteenth Amendment. Indeed, it almost certainly does. Just doing a quick Lexis search one discovers, inter alia, Williams v. Currie, 103 F. Supp. 2d 858, 863 (M.D. N.C. 2000) (Fourteenth Amendment gender discrimination jurisprudence "clearly covers" criminal sentencing in habeas case where Petitioner sought a writ of habeas corpus pursuant to 28 U.S.C.S. § 2254, claiming that his equal protection rights were violated when he was given a lengthy active prison sentence while a similarly situated female co-defendant, who pled guilty to the same charges, received probation). Of course the challenges will usually be brought by male defendants alleging that their sentence violated the Fourteenth Amendment.

I'm borrowing the analysis of state and federal courts applying antidiscrimination statutes, which usually require a finding that it was "a cause" or a "substantial cause" or perhaps even "primary cause" as opposed to the sole cause.

No statute that directs a judge to consider the risk of reoffense requires the judge to explicitly consider the defendant's gender, of course, and in fact under federal law that is an impermissible factor as you point out. So there's the statutory question to be addressed first, which I would imagine would be dispositive most of the time. In the event that it was not, though, I do think that a reviewing court would balk at the weighted consideration of a defendant's gender in making a sentencing decision.

Posted by: Alec | Jan 27, 2011 5:21:01 PM

Professor Berman:

The government is not exactly well known for its use of empirical data when concocting outrageous sentencing guidelines for sex offenses, [specifically the ones that don't involve any contact, although I realize we're talking about a contact offense here]. What makes you think that empirical data would become relevant here? Surely you're not that gullible!

Posted by: disenfranchised | Jan 27, 2011 5:44:07 PM

"Federal law (and many state laws) require judges to seek to "to protect the public from further crimes of the defendant." Suppose a federal judge at a sentencing for a female offender is given by the defense attorney some very good (but not perfect) empirical studies indicating that female sex offenders are much less likely to re-offend than similar male sex offenders. Are you saying to would be "sexist" for a federal judge to decide a long prison term for incapacitation purposes is less necessary for that female defendant?"

Gotta disagree with you on this one, Professor.

(1) Sentencing judges are supposed to look at the particular defendant, rather than any class the defendant falls into, for purposes of recidivism analysis. That would make any class-based empirical studies improper.

(2) Change "female" to "white" and "male" to "black." Would that create a problem if a judge began sentencing black people to more time on the basis that, statistically, their race tends to recidivate more? If race-based empirics is unpalatable, I don't see why gender-based empirics shouldn't be as well.

Posted by: Res ipsa | Jan 27, 2011 5:44:33 PM

Of course a judge can't say "because you're a woman, I think you're less likely to recidivate, so I'm giving you a shorter sentence." I doubt that's what Prof. Berman is proposing. But that doesn't mean there aren't, in the aggregate, distinctions between male and female sex offenders that will manifest themselves statistically, even if every case is given perfectly individualized consideration.

Posted by: Jay | Jan 27, 2011 8:33:56 PM

The prosecution of hot teachers is a charade by the vile feminist lawyer and its male running dogs. I remain hot for teacher, although a cruel teenager reminded me, they would now be ninety. The vile feminist lawyer is saying, we are fair, prosecuting female as well as male teachers. This lawyer vermin also seeks to plunder the schools by making them responsible for the promiscuous behaviors the amoral spawn of single mothers, and other bastards.

People over 14 are biological adults, and lying, vile feminist lawyers make them fictitious minors to generate lawyer business. Their sex acts are protected by Lawrence v Texas that immunized butt banging, causing the eradication of 40 million people by the transmission of AIDS. This vile feminist lawyer and its male running dog vermin is pure evil. Immunize a disgusting sex act between hairy guys that kills millions. Throw the book at harmless, experience of a lifetime, that every male here, except perhaps Mr. Otis, wished had happened to him at that age, the age when it was needed most.

Here is a feminist perspective on this question. I happen to know her, and there is not a hypocritical bone in her body, although we are polar opposites, politically and philosophically.

http://www.salon.com/may97/harassment2970514.html

Funny how a feminist gets falsely accused of harassment in this vile feminist lawyer atmosphere of surround sound denouncement.

She had sex with lots of profs, loved it, learned a lot. I guarantee the profs learned more from her than she did from them, and that they were never same after the experience.

I would like to see a male direct action group formed to beat the asses of these Inquisition ninny intermeddlers and lawyer gotcha artists. If parents object to their princess having sex, stop being her friend, start being a parent to the little hussy. The vile feminist lawyer has it rigged airtight. There is no recourse but self help. To deter.

Short of that, I strongly urge every student to record every word uttered by the vile feminist prof in law school, then to file a complaint after every single biased utterance. Let a hundred complaints get filed after every lecture. To deter. Demand a formal hearing on each.

The defense bar will never allow it because it owes its job to the prosecution. However, every defendant should write a letter to the judge demanding an order for total discovery of the vile feminist and its male running dog prosecutor looking for an improper purpose, and of all supervisors, up to the Governor. Publish all material on the web. Use the law to deter them as they seek to destroy others, especially the productive male.

Posted by: Supremacy Claus | Jan 27, 2011 10:12:50 PM

"...it may reflect judicial belief in recidivism risks rather than "pure" sexism (which I define as a favoring or disfavoring of a person SOLELY due to gender)."

"The boy's family decided not to press charges if the relationship stopped -- but it didn’t. In December, Kemp drove more than 100 miles from her home in Crestview to pick the boy up at a drug treatment center in Bay County, where the two had sex again."

Evidence that our benches are filled by morons. The recidivism will not wait, and will drive 100 miles to get more.

Not much of a victim here. Why does a drug addict bastard need the protection of the law? Lawyer rent seeking. He does not. He likely wants to be left alone to get high and to boink his hot teacher.

This blog should have a subtitle. Retards Are Running the Criminal Law.

Posted by: Supremacy Claus | Jan 27, 2011 10:22:21 PM

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