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May 4, 2012

"Delineating Sexual Dangerousness"

The title of this post is the title of this new article from Professor Fredrick Vars, which is now available via SSRN. Here is the abstract:

Only “dangerous” individuals may be indefinitely detained. Is a one percent chance of a future crime clear and convincing evidence of dangerousness?  For sex offenders, fear and uncertainty in case law leave open this passage to limbo.  This article closes it.

The due process balancing test used to evaluate standards of proof provides the framework.  This article explains the relationship between the standard of proof and the definition of “dangerous” and argues that only an approach combining the two is consistent with the Constitution.

Applying decision theory with assumptions favoring the government, this article calculates a minimum likelihood of recidivism for commitment.  Of the 20 jurisdictions with sex offender commitment, just one requires something close to that constitutional floor. Thousands have been detained applying unconstitutional standards, and the vast majority remains so.

May 4, 2012 at 10:47 AM | Permalink


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Good start, but how about the other kinds of cases. Risk is a fact of life. You lawyers have done a lousy job of figuring out how to handle it in the context of law.

Posted by: Tom McGee | May 4, 2012 7:45:06 PM

The paranoia exhibited in the justice system over sex "crime" has demonized normal sexual relations amongst the youth of today, and now seems to be spreading into schools. A news report I saw today says a school in the US sent home a 6 year old boy for quoting a line from a song to a female classmate "I'm sexy and I know it" Teachers judged this to be sexual harassment. Instilling fear of sex into the young is hardly healthy. I rather think the staff at the school concerned are in dire need of sex education themselves.

Posted by: peter | May 5, 2012 11:27:08 AM

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