Is Civil Commitment Legislation Based on False Premise?

“Sex offenders are more likely than almost any other type of criminal to repeat an offense, [Bacon] said….”

This appears to be the premise on which Sen. Kevin Bacon has built his bill, a bill that would allow the state of Ohio to civilly commit persons beyond the serving of their court-ordered sentence.

Repeating an offense—recidivism--is measured in many ways, and one must be extremely careful in reading the studies provided on sex offense recidivism. A well-done study and well-crafted report will show graphs and charts as well as textual information. It will break the studied population down into sub-groups and show results for all.  It will make clear the definition of “recidivism” being applied to each set of numbers.

General recidivism is a return to prison for any offense, most often parole violations. These can be high for registered sex offenders as the parole restrictions are many and often onerous. True sexual recidivism is often defined as an arrest for another sexual offense. A more accurate definition, one that honors the constitutionally protected assumption of innocence until guilt is proved, is a conviction for another sexual offense, and a thorough study and report will show both.

Regardless of how it is measured, regardless of how it is defined, regardless of how it is reported, there is one thing that sex offense recidivism is not, and that is higher than for "almost any other" offense.

In fact, the opposite of those words are more often found in a discussion of sex offense recidivism.

From a Missouri Supreme Court Judge in a January 2010 ruling:

[R]ather than assuming that the [recidivism rates of sex offenders] are high, one should look at the data. Of the five categories of felony offenders in Missouri’s correctional population – drugs, non-violent felonies, violent felonies, DWI (driving while intoxicated), felonies, and sex and child abuse – sex offenders have the lowest rates of recidivism. Their rate of recidivism after two years is 5.3 percent…(F.R. v. St. Charles County Sheriff’s Department, 301 S.W.3d 56; Missouri Sup. Ct. 2010).

According to the Office of Justice Programs (OJP) of the United States Department of Justice, "In New York State the recidivism rate for sex offenders has been shown to be lower than any other crime except murder." 

The most recent study available for Ohio, a study of offenders released in 1989, shows recidivism rates for actual repeat of a sexual offense at the five year and the ten year follow-up periods between 5% and 8%; this is consistent with almost all other state reports, which fall between 2% and 10%. These states all fell at 4% or below: CA (2010); CN (2012); IN (2008); MN (2007): NM (2012); NY (2007) TX (2001); WA (2005).

An article in the Journal of Sexual Offender Civil Commitment: Science and the Law, 1, 141-149. (2006), “The Vilification of Sex Offenders: Do Laws Targeting Sex Offenders Increase Recidivism and Sexual Violence?” presents compelling evidence that civil commitment programs may actually increase the risk of sexual violence in the community.

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.

All communities have a responsibility to address issues of violence and harm to the public. Will not responsible communities with responsible leaders gather all of the evidence, both pro and con to a pre-held opinion, and craft legislation, laws, and policies based on facts, truth, and evidence-based research? In an issue as important as sexual violence, is not this responsibility both imperative and absolute?

RSOL promotes the elimination of sexual abuse and the preservation of civil rights for all individuals through the use of effective legislation based on empirical research. We envision sexual offense laws based on equal justice and respect for the dignity of all people, protection from retroactively applied punishment, and the establishment of fact-based laws and policies that protect our communities.