Closing Pandora's Box: Sexual Predators and the Politics of Sexual Violence

Abstract

Sexually violent predator (SVP) commitment laws offer a dangerous but seductive promise. In exchange for perfect protection against a few of the most reviled and dangerous criminals - those who prey sexually on women and children - we need only remove from those individuals the protection of our most fundamental constitutional limitations on government power. We reassure ourselves that our molestation of these constitutional protections is safely limited. Unfortunately, we are finding that the seduction of public protection is too strong a force. SVP laws entail a logic that pushes our thinking and approach to sexual violence ever further off balance and demands increasing investment in their strategies. Like Pandora's box, these new laws, which seemed attractive at first, now seem excessive, but cannot, given the political context in which they exist, be abandoned or limited.

SVP laws make an extraordinary moral and constitutional claim: We permit our government - despite its democratic values - to pick out a small group of people and treat them in a way that we would never allow ourselves to be treated. We allow this group - and only this group - to be locked up to prevent unspecified crimes that they might (or might not) commit at some unspecified time in the future. These laws violate a fundamental premise of our constitutional system: As a general matter, the State can take away a person's physical liberty only if he or she is charged with a specific crime, and convicted of that crime according to a set of strict procedural protections. As Justice Jackson stated in Williamson v. United States: Imprisonment to protect society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to resort to it.

My purpose in this Article is not to rehearse the systematic betrayal of these constitutional promises. Rather, I report on an equally serious problem. Even when state officials have taken the limitations on SVP commitments seriously, their efforts, when exposed by the media, have been truncated by a firestorm of popular and political obstruction.

I summarize here the recent events in Minnesota and Wisconsin, two of the original SVP states. Their programs are now a decade or more old. The central lesson of these stories is that the politics of sexual violence, as framed by SVP laws and popular passion, will not let us close this Pandora's box. Ultimately, it will be both society at large and future victims of sexual violence who suffer, because the expense of SVP programs is wildly out of proportion to their benefit. As more and more resources pour into SVP Programs, the distortion in policy and resource allocation will become more and more severe. Society will suffer because of the resource drain, and victims will suffer because these SVP programs will draw more and more resources away from programs that address the great bulk of sexual violence in the community.

I draw these conclusions by examining recent events in Minnesota and Wisconsin. As noted, these are two of the original SVP states, and their programs are among the most mature in the nation. The events are echoed, however, in other mature programs, such as Washington's, and are beginning to beset California's newer program. We can safely assume that the same experience will befall other SVP programs as they mature, as well.