One sentence in a 1986 mass-market magazine continues to sway court cases involving sex offenders.
By Steven Yoder
In the early 1980s, rehabilitation counselor Robert Longo could hardly have known that his work with convicted sex offenders would make him a minor celebrity. At the time, he was running a program at the Oregon State Hospital to treat and rehabilitate prisoners who had committed sex crimes. It was a new field, and Longo says they were using what at the time were considered innovative approaches: aversive conditioning, administration of Depo-Provera to reduce testosterone levels, and penile plethysmography to measure arousal.
In 1985, documentary filmmaker John Zaritsky heard about Longo’s work and gave him a call. Oregon’s program was featured prominently in the resulting HBO special, Rapists: Can They Be Stopped? While the film was being shot, word got around about Longo’s methods, which were seen as a potential solution to ending rape. He started getting invitations to appear on Oprah — he was on five times in all, he remembers — and now he was being quoted in the New York Times and national magazines.
The following year, Longo and a colleague were invited to write an article for Psychology Today about what could be achieved through treatment programs like his. In it, they included this line: “Most untreated sex offenders released from prison go on to commit more offenses — indeed, as many as 80 percent do.”
It’s not that the statement was an invention — Longo says it was an estimate based on the numbers he was seeing in his program for some subpopulations of sex offenders who didn’t finish treatment. And he points to other research from that era that reached similar conclusions — for example, the 1990 Handbook of Sexual Assault noted in a literature review that up to 71 percent of untreated exhibitionists had been found to re-offend in studies with follow-up periods from four to nine years. Still, Longo’s assertion wasn’t meant as an estimate of rates among offenders in his own program, which he says ranged from 10 to 15 percent depending on the offense. The point of the piece was to show that effective treatment works.
But the sentence, it turned out, would change history. [for the worse… temporarily, we hope]
In arguing for the majority, Justice Anthony Kennedy relied on his own language from an earlier decision. It characterized the risk of a sex offender committing another sex crime as “frightening and high” — as high as 80 percent, Kennedy held.
In an essay last summer in the journal Constitutional Commentary, Arizona State University law professor Ira Ellman traces Kennedy’s “80 percent” reference to a 1998 Department of Justice practitioner’s guide for treating incarcerated male sex offenders. In turn, Ellman found that the guide cited just one source — Longo’s quote in Psychology Today.
So how close to the truth is Kennedy’s “frightening and high” assertion? “There’s no empirical evidence to support that statement,” Levenson says. “All of the recidivism studies are remarkably consistent that the number of people re-arrested for a new sex crime is somewhere between 5 and 15 percent.”
Ellman contrasts that statement with the numbers from an authoritative 2014 meta-analysis of 21 recidivism studies by a team of leading scholars. It found that 32 percent of sex offenders assessed as a high risk to re-offend did so within 15 years. For offenders judged low risk, the number was 5 percent. And for high-risk offenders who made it 16 years with no re-offenses, their re-offense rate thereafter was zero.
Those low rates seem to show that Kennedy’s number was wrong and puncture the logic of the opinion. But are those the right figures? Advocates of harsh sex-crime laws raise a key objection — that these crimes are among the most underreported, and criminal convictions in these cases are hard to get. Because of that, they say, official re-offense rates may be dramatic underestimates.
For all of that, Kennedy’s “frightening and high” assertion continues to sway court cases at all levels. Ellman’s Lexis search of legal opinions found it cited in 91 judicial opinions and 101 court briefs involving sex offenders.
But if the Supreme Court was wrong, there are no easy remedies. Ellman thinks a raft of new lawsuits attacking the worst elements of registries could build a foundation for a case that eventually overturns the 2003 decision. “Trying to get legislatures to fix these things is almost hopeless,” he says. “But trying to get courts to fix them is less hopeless because courts have to provide a rational, reasoned explanation of their decisions.”
Today, Robert Longo runs a North Carolina practice that uses neurofeedback technology to treat, among others, kids who’ve been victims of sexual abuse. Looking back, he wonders how a sentence in a popular magazine could have been so misused. “Somewhere along the way,” he says, “something really got distorted.”
For more on Longo’s neurofeedback visit: http://stresstherapysolutions.com/2014/04/robert-longo-bcia-id-e50