The U.S. Supreme Court Buys Into A Myth

          In a recent article in the New York Times Adam Liptak demonstrated a fact that those of us defending sex cases have known for years:  There is virtually no evidence for the Supreme Court’s pronouncement in a 2003 decision that convicted sex offenders commit new offenses at very high rates.  In the 2003 case of McKune v. Lile, Justice Kennedy wrote, “The rate of recidivism of untreated sex offenders has been estimated to be as high as 80 percent.”  This claim of elevated rates of recidivism among convicted sex offenders has been left unexamined for years as lower courts repeat the claim to uphold increasingly drastic sentences and restrictions on targeted sex offenders.

            It turns out the 80 percent figure had its genesis in a 1986 article in Psychology Today written by individuals who operated a counseling program.  As Liptak notes, the claim was good for the authors’ business but lacked any definitive study.  “The basis for much of America’s jurisprudence and legislation about sex offenders was rooted in an offhand and unsupported statement in a mass market magazine not a peer reviewed journal.”

         For those of us who represent individuals charged with sex offenses, we have known for years that what passes for science in the courtroom is often myth morphed into accepted fact by constant repetition.  It is unusual and hopeful to have one of the fundamental assumptions of the child saving advocates exposed for what it is – a myth.


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