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June 22, 2012

"Hot Crimes: A Study in Excess"

The title of this post is the title of this interesting looking new paper by Steven Grossman. Here is the abstract:

In the fall of 1984, after a jury acquitted two parents she had accused of sexually molesting their children and before she was forced to drop charges against the twenty-one remaining defendants she had accused of child sex abuse related charges, the chief prosecutor in Jordan, Minnesota said that she was "sick to death of things like the presumption of innocence.  After the tragic mass murders at Columbine High School in 1999, Mothers Against Drunk Driving ("MADD") issued a press release classifying the "murders as 'insignificant' compared to those killed in alcohol-related traffic accidents.

What do these two announcements have in common?  This Article suggests that each is but one manifestation of the pathology that exists regarding certain crimes and the reaction to them on the part of the public, the media, legislative bodies, law enforcement authorities, and ultimately members of the judicial system.  For a long time, crimes such as these were either not treated with the seriousness they deserve (i.e. drunk driving) or the extent of their prevalence in society was significantly underestimated (i.e. child sex abuse).  Fortunately, in ways this Article discusses, the previous undervaluation or under appreciation of these crimes was brought to the attention of different elements of American society, and people were educated about the nature of these crimes and the degree of harm they cause.  As a result of this heightened attention, the public and particularly victims' rights groups began to call for more action in preventing and punishing these crimes.  Legislatures on both the state and federal levels responded to these calls with new laws designed to accomplish both goals.  Prosecutors investigated these crimes with more urgency and charged and prosecuted them more strictly.  Judges began to sentence individuals convicted of these offenses more harshly.  In other words, each affected group in society took action in an appropriate way to deal with the dangers that child sex abusers and drunk drivers posed.

There came a point, however, when reaction turned into over-reaction and remedial measures became excessive.  This Article examines some of that over-reaction, seeks to explain why it occurs with certain crimes, fleshes out the lessons to be learned from the overreactions, and offers suggestions on how to avoid recurrences of this type of social pathology.  For the most part, this Article uses those crimes related to the serious problems that child sex abusers and drunk drivers pose as illustrations of how crimes become hot crimes and then how such crimes are treated.

Section II of this Article discusses the genesis of a hot crime, what factors appear to be needed for a crime to become hot, and how each factor contributes to the way in which such crimes are ultimately treated.  Section III looks at the types of excesses that hot crimes breed. Section IV examines the kind of flaws in society's responses to hot crimes that breed these excesses, Section V discusses how the concept that has been referred to as moral panic explains the hot crimes phenomenon.  Lastly, Section VI explores ways in which society, particularly law enforcement and legal institutions, can respond to serious crimes without the need to react with excessive and arguably unconstitutional measures.

June 22, 2012 at 08:57 AM | Permalink

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Comments

I'm grateful to Doug for putting up this timely piece -- timely because, in its discussion of the law's reaction to child sexual abuse, it wonderfully coincides with the trial of Jerry Sandusky. Mr. Sandusky's case is now in the hands of the jury, which is pondering 48 counts of graphic and often forcible sexual abuse of young boys over 15 years.

The article raises some questions. I was wondering how commenters would answer them.

1. Aren't the grossly over-publicized Sandusky charges the sort of "overreaction" of which the author speaks?

2. Doesn't this case represent the "stacking" of charges about which many commenters have complained? Did the government really have to allege four dozen counts? Isn't this just pandering the victims' lobbyists, as the author discusses?

3. Isn't there credible reason to believe that the whole case is fabricated by the alleged victims to extract a civil settlement from Sandusky? Shouldn't the prosecutor be brought up on ethics charges for facilitating such a plan?

4. If convicted, Sandusky will almost certainly go to jail for life. He's already 68 years old. Won't an effective life sentence just burden the taxpayers with his burgeoning medical expenses as he ages? Doesn't compassion, not to mention fiscal reality, argue for home confinement?

5. If defense counsel's plea for a full-scale acquittal is accepted, and Sandusky is freed, he will be at liberty to continue to do what substantial evidence shows he has done for years, to wit, molest young boys. How many here are rooting for the jury to send a message to big government meddlers in our private lives, and to the execrable prison industry and its politician allies, by finding for Sandusky, notwithstanding the hysteria the prosecution has whipped up among the masses? I mean, look, his behavior might not be all that good, but, as the author of the article argues, it's time to take a stand against the kind of societal over-reaction we have come to see every day in these Nazi-style prosecutions and the way in which they feed the growth of "incarceration nation."

Time to make a statement to these thug prosecutors and their big-government cohorts! I scarcely see why the noble themes commenters have been touting here for months should be thrown under the bus now because of one over-hyped case.

Free Jerry!

Posted by: Bill Otis | Jun 22, 2012 9:57:49 AM

hmm

"Legislatures on both the state and federal levels responded to these calls with new laws designed to accomplish both goals."

English translation

"Legislatures on both the state and federal level responded to these calls with new ILLEGAL laws desinged to turn govt criminal action into legal fact!"

end translation

Posted by: rodsmith | Jun 22, 2012 11:06:19 AM

Disgusting. What this article wants us to do is to believe that child sex abuse was ever "under appreciated" when in fact the overwhelming evidence is that is has always been over-appreciated. Indeed, the overwhelming majority of people in prison for sex crimes have never physically harmed a child.

Pure rubbish.

Posted by: Daniel | Jun 22, 2012 12:45:41 PM

Daniel,

I think there is plenty of evidence that such things were not appreciated at least through the early sixties, at least not by the court system. Sure the stranger rape scenario would have been pursued then but not things like coaches or the whole Catholic church business.

There were things that just were not discussed in polite society and that silence allowed many things to continue far longer than they would have otherwise.

Posted by: Soronel Haetir | Jun 22, 2012 1:21:28 PM

Everything you write is part of the whole retconning of American history that has gone on. There was no "silence" or "under-appreciation" because all those terms imply a cultural understanding of child sex as an abuse, something that simply wasn't true. American culture simply changed. No one spoke up about the problem because in the 1960s it simply wasn't a problem. period.

This is is why comparing drunken driving with child sex is a false analogy. Booze has always been a contentious issue in American culture life but child sex has not. In wasn't until the 1950-60s that most states changed their statutory rape laws to 16. Most didn't raise it to 18 until the 1980s.

This article is pure 100% hindsight bias. It wants me to believe, as you do Soronel, that "We knew it all along." No, we did not. That is simply a false reading for history.

Posted by: Daniel | Jun 22, 2012 4:28:43 PM

Daniel,

Are you claiming that two otherwise identical acts are vastly different in terms of how damaged the victim turns out based on one act being carried out in a legal regime where the act is legal and the other under one in which it is not?

I would tend to think in most cases that the change in law lags (potentially by a great deal) the understanding that the act is harmful. I just have a hard time seeing a bunch of people who were happily going about their lives who suddenly feel damaged because a law changed turning something that happened to them some time in the past a criminal offense. That pattern makes little enough sense to me that you would need to show some evidence before I would be willing to accept it.

I think there is plenty of evidence that there are people who were hiding things from their past who later feel free to talk about what happened due to changing legal and societal norms, but I would not necessarily call that "going happily about their lives".

Posted by: Soronel Haetir | Jun 22, 2012 6:44:50 PM

That's incoherent Soronel. What damage? What victim? If it's not illegal there there is no damage and there is no victim. Your assumption is that there is an objective basis for saying the law today is correct and the law (or lack thereof) in the 1960s was not. What basis is that, exactly, that doesn't amount to hindsight bias or status quo bias.

Soronel, you can claim that child sex is wrong and always has been wrong and anyone who thinks otherwise is wack-a-doodle. The problem is that viewpoint is in the minority both within the context of the world today (the age of consent is still 12 years old in Mexico City for crying out loud) and within the context of the entire scope of human history.

My point isn't that they were right and we are wrong nor that they are wrong and we are right. My point is that I know of no objective basis for making that judgement. Any such legal judgement is the expression of a people in its cultural and historical context. It wasn't harmful then; it's harmful now. That's all there is to it.

Posted by: Daniel | Jun 23, 2012 2:30:15 AM

Daniel,

I won't claim that child sex is always wrong. I will claim that certain contact is extremely harmful, on a case by case basis. And And that legislatures (at least in the US) are not required to risk missing some of the harmful instances by crafting a narrow statutory definition.

I just don't see whether there is a law on the books saying something is illegal has very much to do with whether a particular instance of the act was harmful or not.

How about I use a different example, though still sexually related. It is only fairly recently that US law recognized marital rape as an offense. Imagine someone who experienced such an act before the law changed. I have a hard time seeing that person re-evaluating the seriousness of their experience with the passage of a law saying what happened to them was indeed a crime. Perhaps a sense of relief that if it ever happens again something can be done, but not some new and burning shame about what has already happened.

Posted by: Soronel Haetir | Jun 23, 2012 10:45:41 AM

Daniel: The article is correct that child sexual abuse was grossly under-reported decades ago, and then this changed in the 1980s and hysteria set in, and continues to this day. CSA was under-reported because families covered it up and authorities were loathe to break up families. It was a cultural issue, and the culture did change, but that doesn't mean that CSA never happened until recent history.

Bill Otis: Your ridiculous comment is baseless. No one is suggesting that Sandusky's case was proof of an over-reaction. The police had allegations against him in the 90s and did nothing because he was a local legend. If anything it shows how screwed normal people are, but how celebrities get special treatment. I know you want to parade around Sandusky as proof that prosecutors weren't wrong in HIS case, but so what? Of course truly bad people like Sandusky exist and need to be dealt with. The problem that people have with prosecutors is that not everyone accused of those crimes is like Sandusky, and yet prosecutors often don't really care to differentiate the two.

I don't think Sandusky would be going after more boys. He is too old. All the allegations were from the 90s and early 00s. I don't think there are any allegations from the last 5 or so years, but I might be wrong. The reason Sandusky is going to prison for life is to punish him, not really to protect the public, and not to rehabilitate. While I tend to think that putting old people in prison is a waste of taxpayer money unless they pose a threat (which they almost never do), in the Sandusky case it is sadly the only thing the system can do. The real problem is that the system failed so terribly in the 90s, when he should have been prosecuted and when prosecuting him would have prevented a lot of victimization. So yes, the system did fail, because police police discretion was abused in favor of a local celebrity. Tragic.

Posted by: lawguy | Jun 25, 2012 5:00:34 PM

Daniel and Soronel, I think you are both missing the point. The article is not about "statutory rape", as in, adolescent sex. It is about CSA, which means sexual abuse of kids, generally under 10 years old.

People who call sex with a 14-17 year old "child sexual abuse" are stupid and wrong. Adolescents are not "children" any more than people in their 20s 30s and 40s are. Adolescents, unlike children, but like adults, sometimes want sex, and have sex with people, sometimes their own age, and sometimes older, because they want to. In some cases, people in positions of trust and responsibility abuse this position to take advantage of the teens. In other cases, people use bribes, gifts, "grooming" and other tactics to seduce an otherwise-unwilling teen. These people are like Sandusky and like Polanski, both clearly predatory.

Age of consent laws vary a great deal. In the vast majority of the world the age of consent is 14-16, mostly 14. In a few countries it is 13. I SERIOUSLY doubt having sex with a 12 year old in Mexico City would go unpunished. I'm sure it would be against mexican federal law or provincial/state law.

I think it was hawaii, had an age of consent of 14 until very recently. Other states with ages under 16 raised them in the 1990s in response to political pressure.

So adolescent sex is a completely different issue from CSA. CSA is a universal evil. Adolescent sex is something that is completely legal in europe, asia, really the whole world except the US. Even in the US the age of consent in most states is 16, with a minority being 18. With parental permission a guy over 18 can marry a girl of a very low age in many states.

Posted by: lawguy | Jun 25, 2012 5:15:39 PM

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