Journal of the Institute

Assessing, Managing, and Treating Juvenile Sexual Offenders

Ayn Embar-Seddon and Allan D. Pass^*

Megan’s Law and Juvenile Sex Offender Evaluation

On May 17, 1996 President Clinton signed “Megan’s Law” into effect, mandating each state to enact legislation requiring the following two components: registration of convicted sex offenders with law enforcement, and community notification when offenders move into a community or change residence (KlassKids Foundation, 2002). The law was intended to protect children from violent repeat sexual offenders. While there is little disagreement that children should be protected from dangerous sex offenders, there is considerable disagreement about whether or not Megan’s Law actually protects children from offenders who pose the greatest threat (Garfinkle, 2003; Wright, 2003). It has been noted that the offenders that Megan’s Law is aimed at (generally strangers) actually pose very little risk to children in general, since most children (and adult women) are victimized by someone that they know well (Garfinkle, 2003). When it comes to violent offenses against children, whether sexual or not, children are at greatest risk from their own parents.

Although the federal statute says nothing specifically about applying the law to juveniles, more than half the states have done so, requiring some sort of registration for juveniles as well as adult offenders. This could be construed as falling in line with the “get tough on juvenile crime” stance of the last decade and a half (Jackson & Knepper, 2003). During this time period, jurisdictions have seen more and more legislative and judicial waivers of juveniles to adult court. These waivers were seen as necessary to deal with what was perceived as a dramatic increase in the number and severity of crimes committed by juveniles. There was a rising fear of juvenile “super-predators” driven by specific crimes that had been sensationalized in the media. An example of these “super-predators” can be seen in the “Central Park Jogger” case of the late 1980s in which a group of “wilding” minority youths were charged with the brutal gang rape and near murder of a young, white woman. More than 10 years later, forensic evidence and an admission by the actual perpetrator revealed that the crime was committed by a lone, adult offender---although he would certainly qualify as a violent sexual predator. Just as in the “Central Park Jogger” case, many of these media-driven perceptions have been wrong. An examination of the Uniform Crime Reports illustrates that there has not been the dramatic increase in juvenile offending (although there was a slight spike in the 1990s) that was so greatly feared, and, in fact, juvenile offending has been on the decline (www.fbi.gov/ucr). It is beyond the scope of this paper to argue whether or not Megan’s Law should be applied to juveniles [See: Garfinkle, 2003, for an interesting and thorough analysis], or to discuss how fear of crime and misperceptions have driven changes in juvenile justice policy. A myriad of problems with the application of Megan’s Law to juveniles is acknowledged.

However, it remains that Megan’s Law is being applied to juvenile offenders. This, in turn, will increase the number of assessments conducted. Anecdotally, the numbers of juveniles being given some sort of “clinical attention” (the term used here to refer to any type of assessment, management, or treatment) for sexual offending behavior has been on the rise. While the Uniform Crime Reports for the ten-year-period of 1993-2002 reveals an overall decrease in offending, many of the juveniles that have been brought to “clinical attention” were not adjudicated, and therefore would not be counted in the UCR (Gerardin & Thibaut, 2004). It is difficult to determine if there has been an overall increase in numbers of sexual offenses committed by juveniles (or adults, for that matter), or if we, as a society, and as criminal justice and treatment professionals are merely more aware of these offenses and offenders. (Keep in mind, also, the high level of underreporting of sexual offenses in general (Broadhurst & Loh, 2003).) Thirty years ago, serious sexual offenses committed by juveniles were viewed as rare indeed. During the 1980s there was a documented increase in sexual offending among juveniles (Gerardin and Thibaut, 2004). Although exact numbers are impossible to pin down (Fritz, 2003), juvenile sexual offending remains a significant social problem (even if we only look at harm to direct victims) that is only beginning to receive the sort of attention that it deserves (Witt et al., 2002).

In this paper we will discuss the problems of the assessment of juvenile sexual offenders, and recommend a three-pronged approach to risk assessment and treatment. The application of Megan’s Law to juvenile sexual offenders will create a statutory requirement that these juveniles be assessed, managed, and treated. It is hoped that with this statutory requirement, the processes and practices of assessment, management, and treatment of juvenile sexual offenders will receive more attention, become the focus of more empirically based research, and best practices can be established.

Defining the Terms
A key issue in sexual offender research has been the difficulties that legal and empirical definitions of terms like “sexual offender” pose. “Sex offender” can be a rather nebulous term and has been applied in a variety of ways. First, it is a legal term (Fritz, 2003). A brief look at the DSM-IV-TR will reveal that it is NOT a clinical diagnosis (American Psychiatric Association, 2000). The term “sex offender” has been used to refer to different individuals who have committed a very wide range of activities deemed, by statute, to be against the law. Technically, an offender is a person who has committed an offense. A sex offender has committed a sexual offense. However, there are those who are in sex offender treatment that have been neither arrested nor convicted, or perhaps arrested but not convicted. In this paper, the term “sex offender” is used to refer to an individual who has engaged in certain types of sexual offense behavior. If they have been convicted, the term “adjudicated sex offender” is used. The addition of the term “juvenile” to either of these is a legal term that refers to an individual who, by statute, has not reached majority age in their state of residence (which varies from 17-19). The term “juvenile” will be used consistently throughout the paper, instead of the terms “adolescent” or “child.” Both of these latter terms are defined by age, with a variety of cut-off points.

The term “sexual offense” or “sex offense” will be used interchangeably to refer to any action designated by state (or, in some cases, federal) law as a sexual crime. Unfortunately, as far as research is concerned, these statute-driven definitions only confuse things further, since, upon examination of state statutes it is plain to see that some of the crimes that are designated as sexual offenses seem rather dubious. On the juvenile end of the spectrum, age-of-consent laws are a perfect example. Age-of-consent laws make it illegal for juveniles under a certain age (established by the state) to give consent. This means, that it is possible for juveniles who, for example, have been dating in high school for quite a while to unknowingly commit a sexual offense by having sexual contact, even if no coercion is involved. Age-of-consent laws rest on the assumption that below a certain arbitrary cut-off age a juvenile cannot give consent, and therefore, all sexual contact is assumed to be coercive.

The difficulty for the researcher is created because of the sheer heterogeneity of the crimes that fall under the heading of “sexual offense” in any jurisdiction. This will not be dealt with in detail here, but it should be kept firmly in mind that sex offenders, whether adult or juvenile, are a very varied group.
Assessment
The first step in the successful management and treatment of juvenile sexual offenders is a well-informed assessment. This assessment makes specific recommendations for the management and treatment of the juvenile. Perhaps the most basic problem with the assessment of juvenile sexual offenders is that frequently assessments simply are not done. Several factors contribute to this. Many professionals have difficulty acknowledging that children and adolescents could be responsible for sexual offenses that had been perceived as being the province of adult offenders (Fritz, 2003). Even among professionals who have been willing to acknowledge that juveniles commit serious sexual offenses, there is a reluctance to treat this clinical population. On the therapist’s side of the treatment equation, treating these offenders may bring up significant negative emotions. On the offender’s side of the equation, treatment is frequently difficult because of denial. This area also has not been as well researched, there is little available guidance as far as what should be done with these offenders, and this is a further confounding factor.

Often, assessments that are done, are done poorly. This problem is created by a synergy of two factors. First, the assessment of juvenile sexual offenders requires specialized training. A common mistake is to perform a generic assessment, one that could be done on any juvenile offender, on this population. Second, many courts do not hold evaluators to an appropriate standard of assessment, frequently because they do not know what should be required in an assessment. Judges, attorneys, probation and parole personnel generally have not received any specialized training in mental health or psychology regarding the assessment of juvenile sexual offenders and may not be able to correctly formulate referral questions. Professionals who deal with this population would benefit from training in mental health issues, so as to not leave it to the assessor to make appropriate suggestions (Jenuwine, 2003).

Juvenile offenders are frequently assessed in the same manner as adults, using a micro-analytic approach that focuses very narrowly on the offense committed. This limited focus is a bad idea even for adult offenders because it assumes that offense behavior occurs in a vacuum. No offense behavior occurs in a vacuum and this is especially true of sexually deviant behavior and sexual offense behavior. For sexual offenses and the juvenile offender especially, a macro-analytic approach that uses a global, familial assessment is appropriate.

Among adult offenders, it is generally assumed that sexual offending behaviors are the result of deeply ingrained and long-standing pathology. The phrase “once a sex offender, always a sex offender,” comes immediately to mind. Garfinkle (2003) points out that there is no basis for this assumption among juvenile sex offenders and it should be called into question for some adult offenders as well. The nature of much of juvenile sexual offending indicates that rehabilitation is possible.

During the assessment of juvenile sex offenders, normative reference points in juvenile sexual behavior are only infrequently taken into account. Most individuals, even highly trained treatment personnel are not aware of what comprises normative adolescent sexual behavior (Fritz, 2003; Garfinkle, 2003). This creates another problem. If normative reference points are unknown, abnormal behavior cannot be determined. Juveniles who are already under the control of the system are subject to much closer scrutiny than the general population of juveniles. These juveniles, incidentally disproportionately minorities, may then be labeled as sexually deviant for the sexual behavior they engage in. Without the normative reference points, it is impossible to tell, however, whether their behavior is normal sexual behavior or not.

When juvenile sex offenders are assessed, often an actuarial assessment is not completed. In the past, this has been understandable, since, until recently, reliable, normed, actuarial instruments were not available. Even now, this area continues to develop, and most actuarial instruments are only used with offenders who are 16 years and older. It has frequently been pointed out that psychologists and psychiatrists are notoriously poor at prediction of dangerousness. The use of actuarial instruments can, when appropriately used and their limitations taken into account, increase the accuracy of prediction and provide a base rate of risk (Broadhurst & Loh, 2003; Petrila, 2004; Wrightsman, 2001).

Finally, and most unbelievably, assessors sometimes overlook details of the instant offense, and specific instances of prior juvenile behavior. In doing so, the assessment occurs out-of-context.

Juvenile sex offender assessments should be done using a three-pronged approach. The lynchpin of this approach is an understanding of the family constellation and how it has impacted the juvenile’s sexual offending. Although the family constellation does not necessarily impact the juvenile’s sexual offending, most often it does. This approach to assessment specifically examines three types of risk factors: community risk factors, treatment risk factors, and management risk factors. Key benefits of this approach are that it gathers data from multiple sources (Gerardin and Thibaut, 2004) and integrates treatment and risk factors (Petrila, 2004).