'The Strings in the Books Ain't Pulled and Persuaded': How the Use of Improper Statistics and Unverified Data Corrupts the Judicial Process in Sex Offender Cases

Abstract

An examination of a range of judicial decisions involving sexual offender determinations reveals that, frequently, courts rely improperly on inaccurate and under-developed statistics as well as unverified and outdated information. This reliance, too often, underlies rulings that subject the sex offender to significant sanctions and loss of liberty. Additionally, the continuation of the testimonial script that all sex offenders are high recidivists, dangerous, compulsive and untreatable, contributes to the anti-therapeutic effect of shaming and humiliation. This results in isolation, seclusion, lack of dignity; also, it further trivializes the judicial process, and violates the tenants of therapeutic jurisprudence. Despite the “frightening and high” indoctrination, a handful of recent court decisions have begun to evaluate and apply relevant research that cites overall low recidivism rates and highlights the failures and harms of registration laws. These rogue courts and published court decisions have effectively revived the stagnant debate on the constitutionality of sexual offender containment laws. It is only through continued judicial recognition of improper reliance on controversial, outdated and incorrect information, that the constitutional wrongs of sex offender legislation can finally be rectified.

Keywords: sex offender law, criminal law and procedure, therapeutic jurisprudence, judicial decisionmaking, disability law, shame, humiliation