98 Pages Posted: 4 Mar 2008 Last revised: 23 Jan 2009
Date Written: March 4, 2008
This Article discusses how historical transformations in social and legal perspectives toward sexuality, crime, and the criminal law spurred the creation of this country's initial sexual psychopath statutes enacted between 1937-1957. Part I analyzes the primary precursors of the sexual psychopath statutes that encouraged the public's and politicians' acceptance of the concept of sexual psychopathy, while Part II describes how the diagnosis of sexual psychopathy slowly developed as a result of the criminal justice system's growing tendency to explain criminal behavior in psychoanalytic terms. Part III examines three of the primary influences that scholars have pinpointed concerning how and why sexual psychopath statutes were enacted between 1937-1957 - the media, citizens' groups, and law enforcement agencies. Such an examination provides the foundation for Part IV¿s overview of this author's detailed study of the relationships among newspaper reports, crime rates, and sexual psychopath legislation. The study counters a number of previous presumptions about the effects of the two purported sex crime waves and suggests that what was perceived to be a sex crime panic was perhaps a "violent crime" or "legislative" panic. Part V analyzes a number of the other perceived influences behind the sexual psychopath laws concluding that the postwar emphasis on psychiatry, family, and children revitalized the nation's focus on the sexual psychopath. Part VI notes that despite the increased funding of psychiatric studies of sex offenders and specialized facilities to treat them from 1950 to 1970, there was a dearth of treatment options available. The options that were available produced either negligible results or focused solely on reversing or eliminating homosexuality, not aggressive or violent behavior. The purpose and ineffectiveness of this medicalization of deviance spurred a series of constitutional challenges that encouraged many states to repeal their sexual psychopath laws during the mid-1970s. Paradoxically, the 1990s revised sexual psychopath legislation at both the state and federal level even though critiques of the new laws resemble those voiced historically. The lessons of history, far from being forgotten, were never learned. This Article contends that sex crime legislation has included too many minor or nonexistent offenders, while failing to incorporate some of the most severe kinds of sexual violence, such as that existing within families. The most pressing concern is that the retributive net has again been cast too far in the same way for a range of possible reasons - administrative inefficiency, public furor, political haste. These rationales blur the moral and legal distinctions between those persons who rouse the greatest social fear - violent predators of children - and those persons who create minimal social concern (minor offenders or simply the sexually different).
Keywords: sex offenders, sex offender statutes, Freud, psychoanalytic theory, psychiatry, Victorian era, punishment, retribution, sex crimes panic, sexual psychopath, sexual psychopath legislation, homosexuality, treatment
Suggested Citation: Suggested Citation
Denno, Deborah W., Life Before the Modern Sex Offender Statutes (March 4, 2008). Northwestern University Law Review, Vol. 92, No. 4, p. 1317-1414, 1998. Available at SSRN: https://ssrn.com/abstract=1102663