Abstract
This paper examines the representation of mental illness and mental disorder in the Washington Community Protection Act of 1990 (WCPA), the first package of sexual predator legislation passed in the United States. I focus on the public outcry over a violent crime committed by a repeat sexual offender, Earl Shriner, and show how the act was drafted in direct response to this outcry. Following his arrest, there was a public discussion of a) whether the state had a responsibility to cure individuals like Shriner before releasing them, and b) whether sex offenders could be cured at all. The WCPA was a landmark law because it shifted forensic psychology in the use of sexual criminals from an intervention model to a containment model, from a model that sought to separate out those sexual criminals who could be treated to a model that separated out sexual criminals because they could not be treated. I demonstrate here that this shift was made in response to the representation of Earl Shriner as a member of a group classified by legislators as having a coherent, recognizable and untreatable mental disorder that caused them to commit acts of sexual violence.
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Because of his age at the time, Hade remained nameless throughout the sentencing and trial; he was referred to in the media simply as, “The Little Boy” or “The Little Tacoma Boy.” It wasn’t until after Hade’s death in 2005, of unrelated causes, that his name was publicly released. P. Sand, “A Life Too Short, but Lived in Full,” The News Tribune, 22 June 2005.
“Mother of a Sex-Crime Victim Ponders a System That Failed,” San Diego Union-Tribune,4 June 1989.; D. De La Cruz, “Tacoman Pleads Innocent in Sexual Assault on 7-Year-Old Boy,” The Oregonian, 23 May 1989.; G. Larson, “System Just Couldn’t ‘Keep’ Suspect,” The Morning News Tribune, 23 May 1989.; S. Macdonald, “Mother Confident of Mutilated Boy’s Recovery from Ordeal,” The Oregonian, 5 June 1989.
The WCPA has three distinct but interrelated purposes: the first two, sex offender registration and community notification, changed the way sex offenders are tracked after release, and became the basis of the nation-wide laws commonly called “Megan’s Law.” This paper focuses on the third part, involuntary civil commitment, because although all three portions of the law presume that a history of sexual crimes is a predictor of dangerousness, and therefore use criminal history as a set of symptoms in order to diagnose a mental state of “dangerousness,” it is the final section that sets the criteria for sexually violent predators. The concept of dangerousness as a measurable trait, particularly as it relates to “preventative detention” or the concept of the “habitual offender” is discussed at length in the field of forensic psychiatry.
To date, sexually violent predator commitment statutes exist in 20 states and at the federal level. The name of the particular group varies, but the intent is the same. The specific legal class of “sexually violent predators” was, at the time of its creation, composed entirely of men. Since then, only three women have been incarcerated as sexually violent predators. It remains part of both the public discourse and the scientific study of violent sex offenders that they are male.
See L. Romanucci-Ross and LR. Tancredi, When Law and Medicine Meet : A Cultural View, International Library of Ethics, Law, and the New Medicine. (Dordrecht; London: Kluwer Academic Publishers, 2004), 44.
I specify that this shift is one in the primary goal of the legislation because containment was always a secondary goal with prior statutes and because the WCPA maintained that treatment was a goal in order to avoid violating due process.
S. Cohen, Folk Devils and Moral Panics: The Creation of the Mods and Rockers, Sociology and the Modern World (London: MacGibbon and Kee, 1972), 9.
See P. Jenkins, Moral Panic : Changing Concepts of the Child Molester in Modern America (New Haven: Yale University Press, 1998) and L. Romanucci-Ross and LR. Tancredi, When Law and Medicine Meet : A Cultural View.
D. Abe and K. Severson, “Plea Entered in Hall Outside Jammed Court,” The Morning News Tribune, 23 May 1989.
Cruz.
See N. Rafter, Creating Born Criminals (Urbana: University of Illinois Press, 1997), 119.
The biggest influence on this era’s treatment of “moral degenerates” and “defective delinquents” was C. Lombroso, M. Gibson, and NH. Rafter, Criminal Man (Durham, NC: Duke University Press, 1876–1897 [2006]), 45.
Lombroso, Gibson, and Rafter, Criminal Man, 145.
95 Wn.2d 541; 627 P.2d 99; 1981 Wash. LEXIS 995. It was incorrectly reported in 1989 that “the judge ruled Shriner should be committed to the sexual psychopath program at Eastern State Hospital.” See Abe and Severson, “Plea Entered in Hall Outside Jammed Court.” The Governor’s task force addressed this error. D. Boerner, “Confronting Violence: In the Act and in the Word,” University of Puget Sound Law Review 15, no. 1 (1992): 525–560.
B. Rushton, “Past Sex Offender Suspect in Attack,” The Morning News Tribune, 22 May 1989.
95 Wn.2d 541; 627 P.2d 99; 1981 Wash. LEXIS 995.
SA. Cole, “From the Sexual Psychopath Statute To”Megan’s Law“: Psychiatric Knowledge in the Diagnosis, Treatment, and Adjudication of Sex Criminals in New Jersey, 1949–1999,” Journal of the History of Medicine and Allied Sciences 55, no. 3 (2000): 293.
Jenkins.
See P. Tappan’s remarks on Commission for the Study of the Habitual Sex Offender in 1949 as cited in Cole, 296.
Larson.
Group for the Advancement of Psychiatry, “Psychiatry and Sex Psychopath Legislation—the 30’s to the 80’s,” (New York: Mental Health Materials Center, 1977).
Shriner was incarcerated twice for non-sexual crimes between his release in 1987 and his attack on Hade in 1989. Both times Shriner pled guilty in return for very short sentences. Neither of these trials made any difference in the applicability of the applicability of civil commitment, the application of sex offender supervision, or Shriner’s eligibility for the “three-strikes” law which allowed adults convicted of three crimes to be given extraordinarily long sentences. These sentencing reform acts limited its applicability to crimes committed before 1984, and Shriner had only been convicted of two crimes as an adult prior to that date. See Boerner.
“Mutilation Suspect Reportedly Wanted to Cage, Kill Youths,” The Oregonian, 24 May 1989 and “Sex Offenders Freed without Notice to Communities,” The Oregonian, 27 May 1989.
Larson.
K. Severson, “State Ran out of Options to Keep Shriner Off Street,” The Morning News Tribune, 27May 1989.
Boerner, 543.
R. Judd, “Locking up Predators: Overkill?—Case of Mountlake Terrace Man Fuels Debate over Task Force’s Plan to Lock up Sex Offenders,” Seattle Times, 14 January 1990.
Cole and R. Judd, “Predators: Is Plan a Cure or Overkill?—Mountlake Terrace Man’s Case Fuels Debate on Locking up Sex Offenders,” Seattle Times, 14 January 1990.
“Mother of a Sex-Crime Victim.”
J. Koemn, “Anguish Pours out for the Little Boy,” The Morning News Tribune, 28 May 1989.
K. Severson, “Outrage over the Attack, over the System,” The Morning News Tribune, 24 May 1989.
Dick Mansfield, community member who found Hade after the attack, as quoted in Rushton, “Past Sex Offender Suspect in Attack.”; “An offense that calls for outrage,” Morning News Tribunal staff editorial, 24 May 1989; “Judicial system let child down,” Letter to the Editor, Morning News Tribunal, 25 May 1989.
“An offense that calls for outrage,” Morning News Tribunal staff editorial, 24 May 1989; M. Comte as interviewed by M. Stevenson, “Sex Offenders Can Be Treated but Not Cured, Doctor Says,” The Morning New Tribune, 27 May 1989; M. McNamara, executive director of the Sexual Assault Center of Pierce County, as quoted in Abe and Severson.
“System has failed,” Letter to the Editor, Morning News Tribune, 28 May 1989.
Comte.
H. Spencer, “Witnesses Testify for Sex Offender Bill,” The Sunday Oregonian, 4 June 1989.
The state was already undergoing a mental health system overhaul, including the creation of a new violent-care ward at Western State Hospital (where Shriner had once been held) for violent offenders considered incompetent to stand trial. S. Wilson, “Champions of Mental Health Face the Challenge of Ensuring Change,” The Morning News Tribune, 28 May 1989 and “Improving Current Situation Next Hurdle in Mental Health Reform,” The Oregonian, 31 May 1989.
D. Voelpel, “A Demand to Change System,” The Morning News Tribune, 31 May 1989.
Tim Klass, “Emotional Tacoma Crowd Backs Fast, Long Terms for Sex Offenders,” The Oregonian, 1 June 1989.
Voelpel.
“Mother of a Sex-Crime Victim.”
In the U.S., the detention of sex offenders is different from the indefinite detention of terrorism suspects, who are considered an exception to the 6th Amendment. Other countries, such as Australia and New Zealand, do consider dangerous sex offenders exceptions in this way, and therefore allow preventative detention of sex offenders. For a discussion of preventative detention statutes in Australia and elsewhere, see DJ. Baker, “Punishment without a Crime: Is Preventive Detention Reconcilable with Justice?,” Australian Journal of Legal Philosophy 34, no. 1 (2009).
Later, the code was revised and “antisocial personality features” was replaced with “personality disorders and/or mental abnormalities.” “Mental abnormality” has become the standard language, and various authors have pointed out that the new language is still vague when compared to “mental disease or defect.” I use the original language here to maintain historical accuracy.
Cole, 312.
Jenkins, 192.
The ACLU and the Washington State Psychiatric Association argued in Seling v. Young that the WCPA violated the “double jeopardy” clause of the constitution. The court held that since the aim of Young’s imprisonment was treatment, not punishment, the statute was civil in nature and as such did not constitute double jeopardy. The Supreme Court has since upheld similar rulings in Kansas v. Crane, (2002) and United States v. Comstock (2010).
M. Petrunik, “The Politics of Dangerousness,” International Journal of Law and Psychiatry 5, no. 3–4 (1982): fn222.
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Cipolla, C. “Preventative Corrections”: Psychiatric Representation and the Classification of Sexually Violent Predators. J Med Humanit 32, 103–113 (2011). https://doi.org/10.1007/s10912-010-9134-0
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DOI: https://doi.org/10.1007/s10912-010-9134-0