Constituting the ‘sexually violent predator’: Law,forensic psychology,and the adjudication of risk

Abstract

Considerable socio-legal scholarship demonstrates law’s constitutive power, and much criminological research has considered the effects of actuarial risk assessment. However, these strands have rarely been brought together to consider how legal risk assessment practices constitute sexual subjects. This article argues that law and forensic psychology co-constitute the category of the ‘sexually violent predator’ (SVP) as a distinct type of person through the use of psychiatric diagnosis and actuarial risk assessment. Contrary to dominant views of actuarialism as de-individualizing, this article asserts that SVP proceedings are centrally concerned with individualized intervention, yet such proceedings continue to produce static risk subjects rather than the dynamic subjects identified in recent research on actuarial practices. It is argued that this stems from entrenched cultural views of sexuality as a fixed essence inherent in individuals. The risk assemblage in SVP proceedings therefore presents a unique theoretical case that does not clearly fit prevailing accounts of actuarialism.

Keywords

Actuarialism forensic psychology risk risk assessment sex offender sexuality sexual predator sexual violence

We are accustomed to thinking about how law regulates sex and sexuality. We are less used to thinking about how law brings those very sexualities it seeks to regulate into being.¹ I take up that issue in this article by asking how the legal process of ‘sexually violent predator’ (SVP) civil commitment trials in the United States reconstitutes sexually violent behavior into a legal and social identity. I argue that courts constitute the legal identity of the SVP as a distinct type of person requiring exceptional penal measures by drawing on the scientific authority of forensic psychology and the purported objectivity of actuarial risk assessment (ARA). I show that forensic psychology lends support to this legal construction by providing mental health diagnoses and actuarial risk assessments that serve as the basis for durable social and sexual identities for SVPs. Each SVP trial reinforces collective understandings of sexuality and sexual violence through the legal constitution of an individual SVP. The aggregate effect is to constitute ‘sexual predators’ as permanently pathological and indefinitely dangerous.

Extant work on actuarialism and psychological risk assessment predominantly portrays such technologies as de-individuating techniques aimed at efficiently controlling populations (e.g. Feeley and Simon, 1992; Rose, 1998). Scholars argue that actuarial techniques produce static subjects that cannot change and therefore cannot be rehabilitated (Hannah-Moffat, 2013; Prentky et al., 2015). This view has been contested from many angles, including assertions that ‘actuarial justice’ theories never described on-the-ground reality (Hannah-Moffat, 1999; O’Malley and Valverde, 2014), that risk practices are much more hybridized than the ‘new penology’ suggested (O’Malley, 1999), and that risk assessment practices are shaped by gender and race (Kendall, 2005; Raynor and Lewis, 2011). Some scholars also argue that risk assessment processes can be dynamic, individualizing, and used in service of rehabilitation (Hannah-Moffat, 2005; Simon, 2005).

Against this backdrop, I argue that in the context of SVP trials, both psychological diagnoses and actuarial assessment are deployed to individualize punishment, yet in a way that constitutes the SVP as a largely static legal and sexual subject. Actuarial tools provide a baseline from which forensic psychologists create individualized risk biographies. While some consideration is given to dynamic risk factors, they are typically used to make individualized upward adjustments to risk estimates to meet the legal threshold for civil commitment. Rehabilitation remains secondary. US SVP trials, therefore, evince a hybrid risk assemblage that is not clearly in line either with ‘actuarial justice’ or newer approaches that suggest a return to rehabilitation.

This, I contend, arises from three factors. First, dominant cultural conceptions of sex offenders, and particularly ‘sexual predators’, portray them as incurable, pathological monsters (Douard and Schultz, 2013; Lynch, 2002). Moreover, in the USA sex has historically held outsized importance and justified exceptional measures and continues to do so today, as exemplified by SVPs. Second, sexuality is generally understood in US culture to be an individual attribute unamenable to change. Though this view is increasingly contested, it continues to draw support both from the way sexuality is evaluated in SVP proceedings and from the gay rights movement, which has strategically adopted a ‘born this way’ stance on sexuality (Waidzunas, 2015; Walters, 2014). Finally, and the primary focus of this article, forensic psychology offers scientific backing to often misguided cultural tropes by cooperating with courts to provide predictions of indefinite future riskiness and psychiatric diagnoses that are understood to be permanent and incurable.

In addition to pointing to the constitutive, and not just punitive, aspects of risk assessment, I offer three contributions to the theoretical literature on actuarial risk practices. First, contra views of actuarialism as de-individuating, I join a growing literature that argues that actuarialism is not anathema to individualization but that it grows out of the desire to individualize punishment and ‘know the criminal’ (Harcourt, 2007; Lynch and Bertenthal, 2016). Second, where some scholars have argued that new actuarial risk practices are dynamic and compatible with rehabilitation, I assert that the SVP presents a contrary case, where a static conception of the offender remains despite attempts to individualize. Third, scholars have pointed to the ways that risk assessment is shaped by race/ethnicity and gender and can constitute non-white and female offenders as particularly dangerous or mentally disordered (Goddard and Myers, 2017; Kendall, 2005). I argue that cultural conceptions of sexuality similarly contour risk assessments of sex offenders. I ultimately suggest that SVP trials serve as a site for the constitution of social understandings of sexuality and sex offenders that have resonance far beyond the courtroom.

Constituting sexual subjects

The law has long been brought to bear on sexuality-related issues. Laws have also inscribed categories, such as ‘citizen’, with sexual significance by excluding sexual ‘deviants’ from entering the country, serving in the military, or otherwise claiming the full rights of citizenship (Canaday, 2009; Halley, 1999). Through such legal processes, the law delimits certain sexual expressions and experiences that are limited and narrowly constructed, yet appear as social fact. Because the institutional processes are masked, particular sexual expressions take on the appearance of naturally occurring phenomena that are discovered, not created (Zylan, 2011). Such is the case with the SVP.

Though the notion of the sex offender seems like a transcendent classification, it is, in fact, little more than 100 years old and has carried considerably different meanings over the course of the 20th century. Like the ‘homosexual’ theorized by Foucault (1990), the ‘sex offender’ was not understood as a distinct type of person until the late-19th century.² Though the justice system dealt with sex crimes before this time, there was no sense of sex criminals as distinct or menacing types of offenders. After the 1880s US psychiatry began viewing sexual deviants as possessed of an essential ‘perversion’ rather than simply committing aberrant acts. Yet through the 1920s, many sex crimes, such as non-violent molestation and homosexuality, were viewed as mere nuisances that received leniency or were ignored by the police (Jenkins, 1998).

Beginning in the late 1930s, states started passing ‘sexual psychopath’ laws engendered by a moral panic around sex crimes, and by the late 1950s, 27 states and Washington, DC had some form of sexual psychopath law (Cole, 2000; Prentky et al., 2015). The laws diverted those charged under these statutes from prisons into psychiatric hospitals and disproportionately targeted low-level offenders, such as homosexuals and exhibitionists (Cole, 2000; Kunzel, 2017). Unlike today, rapists were rarely considered ‘psychopathic’ because aggression was viewed as a natural part of the male sexual impulse unlike homosexuality and pedophilia which were seen as unnatural (Freedman, 1987). Some psychiatrists voiced concern over the vagueness of the term ‘sexual psychopath’, which was a legal creation that provided a veneer of scientific legitimacy rather than a proper psychiatric diagnosis (Cole, 2000; Kunzel, 2017). Psychiatrists never reached a consensus on the definition of ‘sexual psychopath’, and its legal parameters continued to vary from state to state (Grubin and Prentky, 1993: 383), making treatment and cure—on which sexual psychopath statutes were premised—mostly a fiction (Cole, 2000; Terry, 2013).

The ‘dangerousness’ requirement also invited discontent for its vagueness and the difficulty in proving someone’s future risk. Because sexual psychopath statutes required a prediction of dangerousness to legitimate indefinite confinement, there was often significant slippage in the term ‘dangerousness’ between dangerous persons and dangerous behaviors (You, 2013). These controversies continue with current SVP laws, although the field of psychology has tried to remedy it with the use of ARA. Despite attempts to use actuarial methods to discuss group risk, SVP hearings today still have the effect of reifying risk as inhering in the individual who is ultimately labeled ‘sexually dangerous’.

The 1990s witnessed the rise of a new generation of sex offender laws, variously labeled ‘sexually violent predator’, ‘sexually violent persons’, or ‘sexually dangerous persons’, laws (Janus, 2006; Lancaster, 2011; Prentky et al., 2015), what I will refer to as ‘SVP laws’. These statutes resulted from high profile sex crimes (though not an actual increase in the number of sex crimes) that induced a moral panic, particularly around child molestation (Jenkins, 1998; Lancaster, 2011). As of 2016, 20 states and the federal government have enacted SVP laws. Unlike the ‘sexual psychopath’ laws, which sought to divert those ‘too sick’ for punishment from criminal sentences into mental facilities at the front end, SVP statutes are aimed at the ‘worst of the worst’ and allow the government to seek indefinite civil commitment of an offender after he has served his criminal sentence.

According to the Supreme Court, SVPs must be distinguishable from the ‘typical’ offender.³ Thus, SVP statutes contain a three-prong requirement for rendering an offender eligible for commitment. First, an offender must have committed a ‘sexually violent crime’. Second, an offender must have a mental disorder or abnormality. Third, that mental disorder must predispose an offender to future acts of sexual violence. These requirements, aside from the first, which is strictly statutory, necessitate the cooperation of psychological professionals in both the diagnosis of a mental disorder and the prediction of future sexual violence based on that diagnosis.

While legislatures and the media created the infrastructure necessary for defining SVPs as a problem needing attention, courts were left to make individual determinations of sexual pathology and risk. Drawing on court decisions, interviews with legal and scientific actors, and ethnographic observation, I argue that courts accomplished this by turning to the expertise of forensic psychologists for statutorily mandated diagnosis and the technology of ARA.⁴ Concerns with the subjectivity of future ‘dangerousness’ predictions during the ‘sexual psychopath’ era contributed to the demise of that generation of civil commitment statutes. By contrast, present-day ARA offers a more ‘objective’ way of ‘knowing the criminal’ and predicting future dangerousness through a clearly delineated, quantified approach to risk prediction. This technology renders the notion of ‘future sexual violence’ more easily defensible in both legal and scientific contexts and positions risk as inherent to the offender himself.

Thus, law and science co-constitute the category of the ‘sexually violent predator’ and the more general problem of sexual violence. Forensic psychology lends legitimacy to the law’s pursuit of harsher punishment, and the law grants forensic psychology status by giving it authority in the legal sphere and the penal management of sex offenders. Science and law therefore provide the mechanisms for what Ian Hacking (2007) calls ‘making up people’, the products of which feed back into public discourse to disproportionately focus our attention on the ‘worst of the worst’ and create the impression that SVPs are typical offenders whose crimes are commonplace when, in fact, the heinous crimes sensationalized by the media and politicians are quite rare. This has the effect of focusing our public and policy attention on statistically rare crimes while leaving under-addressed the more pervasive problem of sexual assault perpetrated by people known to the victim. While this outcome is certainly a product of media and political attention, in this article, I argue that any theorization of the ‘sexual predator’ is incomplete without examining the mechanisms forged by courts and forensic psychology to create this now widely accepted criminal subject position.

Forensic science and the assessment of risk

Risk assessment is a well-established aspect of penology today, and ‘risk’ has received considerable attention in the criminology literature as we have witnessed a move toward what Baker and Simon (2002) call ‘governing through risk’. ‘Risk society’ (Beck, 1992) is increasingly structured around concerns with how to manage, minimize, and prevent risk, which has driven a punitive trend in carceral practices that increasingly includes policing those merely suspected of being ‘risky’ (Castel, 1991; Ericson, 2007). The dominant view of risk assessment arising from literature on the ‘new penology’ and actuarial justice (Feeley and Simon, 1992) portrays it as an aggregating technology concerned with identifying, classifying, and efficiently managing groups sorted by dangerousness (Ericson and Haggerty, 1997; Garland, 2001; Haggerty and Ericson, 2000). A similar perspective has been put forward regarding psychiatry’s relationship with the law and assessments of risk: namely, that individual patients are no longer seen as such but rather as a constellation of risk factors (Castel, 1991; Rose, 1998). In these views, the individual offender is largely lost, and concerns with rehabilitation fade.

Several scholars critiqued the ‘new penology’ and ‘punitive turn’ arguments, suggesting that they had to be understood as part of the rise of neoliberal strategies that mandated efficiency and effectiveness (O’Malley, 1999; Pratt, 2002). These same impulses gave rise to ‘targeted governance’, in line with the new penology’s drive for efficiency, but also came with a new emphasis on personal responsibility and individual choice, contra assertions of de-individualization or complete disregard for offenders’ ability to be rehabilitated (Hannah-Moffat, 1999; Moore and Hannah-Moffat, 2005; Valverde and Mopas, 2004). Such observations led some to conclude that actuarial justice theories were overstated, particularly in non-US jurisdictions (Moore and Hannah-Moffat, 2005; O’Malley and Valverde, 2014).

Harcourt (2007) similarly contests the de-individuation thesis, asserting instead that actuarialism grew from the same impulse that led to the individualization of punishment: our desire to know, predict, and control the future. He argues, ‘we are attracted to the actuarial in criminal law largely because we believe it helps us get closer to the truth, closer to reality, closer to knowing each individual’ (Harcourt, 2007: 36). Lynch and Bertenthal (2016) draw on Harcourt’s theory to analyze the Federal Sentencing Guidelines, which, on the surface, look like a paradigmatic example of actuarial justice. They challenge this reading, arguing instead that tracing the development of the Guidelines shows that the use of criminal history in sentencing came to be understood as the principal mode of individualizing the penal subject. Rather than representing the counterpoint to individualization, they suggest that ‘just as clinicians use categories to diagnose and label individual patients, actuarial methods aim for more reliability in diagnostic labeling to determine interventions for individual subjects’ (Lynch and Bertenthal, 2016: 149). This same logic, I argue, is at work in sex offender-specific actuarial risk assessments. Of the 10 factors considered by the Static-99, the most widely used ARA tool for sex offenders in the USA, five regard criminal history, and an additional three concern victim characteristics, which is arguably yet another measure of criminal history. Similarly to the Guidelines, the Static-99 individuates offenders primarily through prior criminal records, though, as I will show, SVP proceedings individualize interventions beyond this.

As the name Static-99 suggests, ARA tools often rely on inert risk criteria that produce a fixed risk prediction based on immutable, historic factors (Hannah-Moffat, 2013). This static logic implies that an offender’s risk level can never be reduced because the factors used to predict it do not change. More recent analyses argue that newer generations of actuarial technologies that account for dynamic risk variables and criminogenic needs reconfigure risk as a fluid concept that can be treated and altered (Hannah-Moffat, 2005; Maurutto and Hannah-Moffat, 2006). Much of this work demonstrates that, while ARA is widely used, it is often combined with other techniques that create hybrid risk assemblages in which clinical judgement is tempered and shaped by actuarial methods (O’Malley, 2004; Simon, 2005). Thus, although ARA was heralded as objective and removing biases of clinical assessment, it still allows for professional discretion but often ‘black boxes’ that discretion and repackages it as objective (Hannah-Moffat et al., 2009).

These biases are particularly evident in relation to gender. For instance, because female offenders are often not seen as risks to society in the same way that male offenders are, their risk assessments have been reorganized around ‘need’ (Hannah-Moffat, 1999). However, this ends up conflating needs with risks, and it becomes incumbent upon women to take responsibility for and address their needs. Similarly, women prisoners are more often subject to the language and ideas of psychiatry than men, which often works to reframe problems of unequal power, violence, and poverty as individual problems that women must take responsibility to overcome (Godin and Kendall, 2009). Because female offenders violate norms of femininity, their actions are often explained through a psychologizing discourse; otherwise their actions seem beyond reason (Kendall, 2005). A similar dynamic is at work for sex offenders, whose actions are seen as irrational and pathological. But rather than being seen as less risky like women, they are understood as riskier. For example, Hannah-Moffat et al. (2009) show that Canadian practitioners tend to evaluate sex offenders in a way that guarantees a ‘high risk’ designation regardless of the factors dictated by ARA tools.

Such findings demonstrate that risk is not intrinsically real but a particular way of imagining and dealing with a problem (Ewald, 1991; Rose et al., 2006). Risk discourses and practices are always imbued with moral meaning and shaped by cultural and political factors (Douglas and Wildavsky, 1992; Ericson and Doyle, 2003). This is evident in legal settings where courts often invoke ‘science’ to justify decisions or authorize common sense understandings of phenomena (Valverde et al., 2005). In drawing on a mix of expert and non-expert knowledges, courts create new risk assemblages that are neither scientific nor anti-scientific (Moore and Valverde, 2000; Valverde, 2003). Thus, ‘risk assessments that were originally developed in a scientific context lose much of their scientificity as they are reworked into an assemblage whose logic is not scientific’ (Valverde et al., 2005: 87). That is, the law may adapt science to its own needs while also drawing on cultural common sense and politicized discourses. This, I argue, is what we see at work in SVP trials, where an individual logic is hybridized with an intense skepticism toward the possibility of change that is buttressed by durable psychiatric diagnoses, static risk assessments, and cultural common sense about sexuality. There is a strong desire to know the individual criminal, but sex offenders are constituted as mostly unchanging, and a concern for rehabilitation remains secondary to containment.

The scientific underpinnings of the sexual predator

A primary way that psychology contributes to the construction of SVPs is through diagnosing offenders with mental abnormalities that become the basis for permanent legal and social identities. Drawing on the legitimacy of the Diagnostic and Statistical Manual (DSM), forensic psychologists authoritatively dictate medicalized identities that courts readily accept as objective and reliable. Nevertheless, debate continues within the ‘psy’ professions around questions of whether ‘particular patterns of personality or behavior—such as rape—qualify for the category [of mental disorder]’ (Janus, 2006: 38). However, psychiatric diagnoses carry considerable authority in both the legal and public spheres and serve as one basis for constructing SVPs, and, by extension, all sex offenders, as permanently pathological. The Supreme Court’s decision in Kansas v. Hendricks upholding Kansas’ SVP statute demonstrates the power of these diagnoses to transform patterns of violent behavior into identities.

The Kansas law, enacted in 1994, quickly faced constitutional scrutiny when Leroy Hendricks, a man diagnosed with pedophilia, challenged the statute.⁵ The Kansas Supreme Court found that the definition of ‘mental abnormality’ used in the SVP Act did not satisfy the Constitutional requirement of ‘mental illness’ for the purposes of civil commitment. In a 5–4 decision, the Supreme Court reversed the decision, writing that ‘the term “mental illness” is devoid of any talismanic significance’.⁶ The important aspect of these types of laws, the Court continued, is that they set forth criteria relating to an individual’s inability to control his ‘dangerousness’ and that they are able to distinguish SVPs ‘from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings’.⁷ It is worth considering in more detail the significance of Hendricks’ ‘pedophilia’ diagnosis.

‘Pedophilia’ or ‘pedophilic disorder’ falls under a category of conditions in the DSM called ‘paraphilias’ or ‘paraphilic disorders’. Paraphilia is, simply put, enduring sexual attraction or arousal to non-normative stimuli. Paraphilic disorders are the most common diagnoses of mental abnormality in SVP proceedings (Levenson and Morin, 2006; McLawsen et al., 2012). Significantly, pedophilia is widely considered by the psychiatric and psychological communities to be a lifelong disorder. As Dr Roberts,⁸ an Illinois SVP evaluator, put it:

The thing about pedophilia is it’s not a desire to do a certain act or something where your stress builds up, and then you have to relieve it by showing yourself or get the excitement of looking in somebody’s secret life when they don’t know you’re there. Those are different things […] It would be like me having heterophilic disorder in full remission at some point, you know? […] I’m terminally straight. And people who [are] aroused mainly by children, they’re terminally that, aroused by children.⁹

Similar statements often appear in court decisions, as in the SVP hearing of Mark Broer in Washington state:

The trial court rejected the testimony of Dr. Wollert, that Broer’s pedophilia is in remission. The court relied upon the testimony of Dr. Wheeler that paraphilias do not spontaneously remit and that Broer’s condition is chronic and enduring, as well as Dr. Spizman’s testimony that the current thinking is that pedophilia never goes into remission.¹⁰

This legal-scientific conception of pedophilia in turn provides support for lay opinions of pedophilic sex offenders. In Small’s (2015: 125) study of lawyers who deal with sex offenders, she found that: ‘[u]nlike other criminals, respondents categorize pedophiles as uniquely deviant. They perceive them to be incorrigible. The pedophile is unrehabilitative because his sexual urges are a core part of his being.’

In fact, however, most child molesters do not exhibit significant arousal patterns to prepubescent children or meet the DSM diagnostic criteria for pedophilic disorder (Seto and Lalumiere, 2001).¹¹ Rather, their offense was situational and not necessarily an indicator of a pattern likely to be repeated. In other words, not all ‘pedophiles’ are unrehabilitative, nor is a sexual urge to molest children a ‘core part’ of their sexual being. Yet lay understandings of the term ‘pedophile’ as a distinct type of person are reinforced by the DSM definition of paraphilias as enduring arousal patterns and, specifically, the designation of pedophilia as akin to a sexual identity such as gay or straight.

This view of sex offenders, and especially pedophiles, as unique and particularly monstrous, highlights the way that our culture grants excessive weight to all matters sexual (Rubin, 1984). This cultural view colors our penal approach to sex offenses, as exemplified in the exceptional measures we take to control them, such as Megan’s Laws and GPS monitoring. As Karl Hanson, co-creator of the Static-99, pointed out, part of his rationale for creating an actuarial instrument specific to sex offenders was precisely because of this view in the penal system: ‘the standard practice […] is to automatically override sex offenders into a high risk category for correctional management purposes, just because they’re sex offenders’.¹² In creating the Static-99, he was partially working to dispel the myth that sex offenders are inherently more dangerous than other offenders simply because their crimes involved sex. While this approach may have gained some traction in Hanson’s native Canada, in the USA, separate risk instruments for sex offenders serve largely to reinforce the idea that sex offenders are special kinds of criminals.

Another significant ruling in Hendricks established that treatment was not necessary to make SVP civil commitment constitutional. In its decision striking down the SVP statute, the Kansas Supreme Court wrote,

It is clear that the overriding concern of the legislature is to continue the segregation of sexually violent offenders from the public. Treatment with the goal of reintegrating them into society is incidental, at best. The record reflects that treatment for sexually violent predators is all but nonexistent.¹³

Indeed, the Kansas statute’s preamble plainly states that,

In contrast to persons appropriate for civil commitment under the [general involuntary civil commitment statute], sexually violent predators generally have anti-social personality features which are unamenable to existing mental illness treatment modalities and those features render them likely to engage in sexually violent behavior.¹⁴

This language is echoed verbatim in several other SVP statues across the country, including Florida, Iowa, New Hampshire, and Washington. Such statements make it clear that rehabilitation is not a priority, and it seems that it was not even seriously considered at the time these statutes were enacted. Rather, legislatures and courts alike agreed that they were dealing with a permanently pathological person, not a dynamic individual. Though individualized assessment was required to commit an SVP, the legal actors involved clearly believed that individual would remain a danger indefinitely. These understandings are further bolstered by the use of static risk assessment instruments.

Actuarial risk assessment and the designation of dangerousness

Harcourt (2007: 173) contends that the turn to actuarialism is continuous with earlier attempts to individualize punishment and the ‘will to know the criminal’. This is no less true of the SVP context where the use of ARA is consistent with earlier efforts at clinical risk prediction during the ‘sexual psychopath’ era. Moreover, SVP evaluations resemble the parole system, which might be considered the epitome of individualized justice (Harcourt, 2007). ARA, however, is seen as a purer and more ‘objective’ view of the individual by both courts and forensic psychologists. The advent of actuarial risk prediction for sex offenders granted increased scientific legitimacy to forensic psychology. As the Association for the Treatment of Sexual Abusers (ATSA) President Michael Miner commented, ‘the best research that has happened in this field since I’ve been in it has been around the area of assessment, the development of these actuarial assessment tools’.¹⁵ Empirical studies buttress this belief, consistently showing that actuarial risk prediction is significantly better than clinical prediction (Janus and Meehl, 1997; Prentky et al., 2015). Yet the most positive assessments still place the predictive power of these technologies at around 70 percent.

Predictions of dangerousness constituted an important part of sexual psychopath commitments, but the subjectivity of these predictions led to widespread concern about the validity of the process. While the new generation of sex offender civil commitment statues were being enacted, forensic psychologists were also creating more ‘objective’ means of assessing future dangerousness in the form of quantitative risk prediction tools. Karl Hanson developed one of the first of these instruments in 1997, and soon thereafter, he and David Thornton created the Static-99 (Hanson and Thornton, 2000). As Hanson explained, ‘my work is geared towards supporting effective rehabilitation programs’, and he therefore created the Static-99 to identify criminogenic needs of sex offenders in the Canadian penal system to ‘match up the interventions that are relevant’.¹⁶ Such a goal suggests an interest in individuation and also a view of offenders as dynamic individuals, consistent with other Canadian research on risk assessment (Hannah-Moffat, 2005; Maurutto and Hannah-Moffat, 2006). By contrast, in the USA, where the Static-99 is the most widely used ARA tool for sex offenders, it is employed to gauge danger more often than rehabilitation needs, and US legal actors are more likely to understand sex offenders as static and inherently risky subjects. This is most apparent in the deployment of ARA in SVP trials.

Over 90 percent of jurisdictions now allow ARA in SVP proceedings (Prentky et al., 2015). In Illinois, state prosecutors have successfully pursued Frye hearings in every county in order to ensure the admissibility of such technologies.¹⁷ Several state supreme courts have likewise considered the admissibility of actuarial risk prediction and found it acceptable. The Illinois Supreme Court case People v. Simons (2004) is illustrative.¹⁸ In a bench trial, Simons was found to be a SVP subject to civil commitment based on the testimony of two psychologists who both used actuarial tools—including the Static-99—to conclude that Simons was ‘substantially probable’ (the legally mandated standard in Illinois) to commit future acts of sexual violence. Simons appealed on the basis that the psychological testimony based on the actuarial prediction of his sexual risk should not be admitted because the actuarial technologies were not first subjected to a Frye hearing. The appeals court agreed. The Illinois Supreme Court, however, found that ARA was not a new or novel technology, that at least 19 other states relied on some form of actuarial prediction to form opinions of sex offenders’ recidivism risk, and that it enjoyed wide acceptance in the professional literature. In addition to extensively citing other courts to have considered the issue (all of which found ARA admissible), the Illinois court cited many prominent forensic psychologists, including Hanson and Thornton, the creators of the Static-99. Quoting one forensic psychologist, the decision refers to ARA as a ‘quantum leap forward’ in the ‘science of violence risk analysis’.¹⁹ Taken together, the Illinois court cites no fewer than 10 forensic psychologists in its defense of ARA and ultimately finds the technology admissible. Like cases involving diagnosis and ‘mental abnormality’, then, courts have also generally come down on the side of ARA.

SVP laws and the ARA tools used to uphold them suggest that ‘dangerousness’ is ‘essential […] a stable ingredient of the person, a part of him even if it is not now visible’ (Janus, 2006: 104). Risk assessments that consider only static or unchanging factors, such as the Static-99, reinforce this conception because one’s risk level can never change if only historical factors are considered.²⁰ Judicial decisions bear out this assertion when they describe offenders as being ‘sexually dangerous’, implying that dangerousness is an inherent quality of the offender. Court determinations that conclude that an offender is a ‘sexually violent predator’ assign an identity label, not merely a punishment for criminal behavior. Expert affidavits further attest to this. As one Illinois evaluator wrote in his report to the court for an SVP hearing: ‘[i]t is this examiner’s opinion, to a reasonable degree of psychological certainty, that Mr. Lowe is dangerous—his mental disorders make it substantially probable that he will engage in acts of sexual violence.’²¹ In this formulation, Mr Lowe’s dangerousness is part of his makeup, a characteristic of him as a person. This construction of the sexual predator has spillover effects for all sex offenders. Megan’s Law, for instance, is premised on the assumption that treatment of sexual offenders is futile and that they will remain dangerous—indeed that they are guilty not just of bad behavior but of being bad people (Hoppe, 2016; Simon, 1998).

This is further evidenced by the rarity with which SVPs are released from custody. Minnesota and Missouri are facing ongoing litigation over their civil commitment programs. Missouri has never released an SVP since the inception of its program in 1999. Minnesota has released only a handful since its program began in 1994 and currently has the highest per capita rate of civilly committed sex offenders of any state in the country. Both programs have been accused of providing insufficient treatment and unclear paths for ‘patients’ to progress toward release. An expert evaluation of the Minnesota program prepared for the court attests to these complaints.²² A 2007 report on SVP commitment programs nationwide likewise found that only about 10 percent of those committed since 1990 had been released by 2006 (Gookin, 2007). Despite ostensibly being treatment programs, SVP programs appear to be aimed more at containing those who are viewed as ‘intransigent’ rather than dynamic or rehabilitable.

When they are released, sex offenders in general, and SVPs especially, face increased surveillance and severely curtailed liberties. Many face lifetime registration on public sex offender registries and often must notify the community of their presence. These often lifelong restrictions promulgate the idea that sex offenders are incurable deviants permanently possessed of a pathological sexuality. Ideas of enduring sexual pathology certainly draw support from many sources—including cultural stereotypes—but forensic science provides a powerful tool to reinforce these often incorrect views, particularly when courts are searching for a rationale to treat sex offenders in exceptional ways. Quantified risk estimates offer perhaps the best justification for the notion that sex offenders are indefinitely dangerous. Unlike the ‘yes’ or ‘no’ dangerousness determinations of the sexual psychopath era, risk estimates are probabilistic, meaning there is rarely, if ever, a situation in which an offender would be deemed to have no risk. Regardless of the numerical estimate, courts can use actuarial risk assessments as justification for the assumption that sex offenders will always be risky.

The 2016 decision by the Seventh Circuit in Belleau v. Wall illustrates this idea. Belleau had been declared an SVP by the state of Wisconsin due to two prior sexual assault charges involving children. After 10 years in prison and five years of civil commitment, Belleau was released from custody based on the opinion of a psychologist that he was no longer ‘more likely than not’ to commit future sexual assaults. Using the Static-99R (the revised version of the Static-99), the psychologist estimated that Belleau’s risk of recidivism was 16 percent at the time of his release from civil commitment and 8 percent at the time of Belleau’s appeal, at which he argued that Wisconsin’s requirement that all sex offenders released from civil commitment wear a GPS ankle bracelet 24 hours a day for life was unconstitutional. The district judge agreed that the statute was unconstitutional, precipitating an appeal to the Seventh Circuit, which reversed the district court. As part of its reasoning, the court cited the evaluating psychologist, who stated that: ‘it is well understood in my profession that pedophilia in adults cannot be changed’.²³ The court leaned heavily on the belief that sex offenders remain dangerous forever and used Belleau’s actuarial scores to substantiate it, writing:

And even if we credit the 8 and 16 percent figures, the plaintiff can’t be thought just a harmless old guy. Readers of this opinion who are parents of young children should ask themselves whether they should worry that there are people in their community who have ‘only’ a 16 percent or an 8 percent probability of molesting young children.²⁴

The court later added:

There is the further problem that the 16 percent figure is just a guess, and the even more serious problem that the figure implies that of every six pedophiles with characteristics similar to those of the plaintiff in this case one will resume molesting children after his release from prison.²⁵

The court simultaneously minimized the actuarial prediction as ‘just a guess’ and held it up as proof that sex offenders are always dangerous. It sustained this logic with an unsubstantiated assertion drawn from a Supreme Court decision wherein the Court said that: ‘[t]he risk of recidivism posed by sex offenders is frightening and high’.²⁶ Under the rationale followed by this court, a probability of recidivism as low as 8 percent may certify that someone remains a sexual danger. The quantification of risk in this scenario allowed the court to impute an enduring risk to almost any sex offender in a way that earlier subjective ‘yes’ or ‘no’ dangerousness determinations did not. Such probabilistic measures of risk create a policy climate aimed not just at reducing risk but at eliminating risk altogether, resulting in practices like civil commitment meant to remove certain sex offenders from civil society indefinitely (and perhaps permanently), residence restrictions for former offenders, and lifetime monitoring and registration.

Nascent dynamism?

Though only static instruments are typically introduced in SVP proceedings, researchers have developed dynamic assessments for sex offenders. The most popular is the Stable-2007, though it is designed for use with offenders living in the community. However, evaluators often use it as a guide for assessing dynamic risk factors in SVPs in what they label an ‘adjusted actuarial approach’. All of my interviewees reported using this approach, rather than a ‘pure’ actuarial approach, in order to customize their assessments to individual offenders. Explaining his adjusted actuarial approach, Illinois SVP evaluator Dr Barton stated that he begins with the Static-99R and,

I see where that data takes me, and I incorporate it with the rest of the case specific data and then make a determination. I don’t make adjustments to those instruments. I let those instruments run their course and whatever risk category they suggest, I take that into consideration.²⁷

Thus, actuarials serve as the first step in an individualized assessment process.

Rather than using dynamic factors to paint a picture of an individual capable of change, however, evaluators generally used these factors to generate risk estimates high enough to meet the legal requirements for civil commitment. In Illinois, for instance, the state must prove that an offender is ‘substantially probable’ to sexually reoffend, which is interpreted to mean ‘much more likely than not’. However, the ARA assessments used very rarely produce a probability of recidivism above 50 percent, meaning that evaluators must boost their risk estimates using dynamic factors to meet the legal threshold of commitment. As Dr Roberts explained:

If you look at the recidivism [on] the actuarials […] a person can be very high risk, and yet when you look at their absolute risk, which is the probability assigned that this person will be charged or convicted of a sexual offense within a certain amount of time, it’s below 50%.²⁸

Consequently, Dr Roberts and all of the evaluators with whom I spoke justified their recommendations for commitment based on an upward adjustment of the initial actuarial estimate, generally justified by dynamic criminogenic factors, such as deviant sexual preferences, impulsivity, and poor problem-solving skills. Defense attorneys attempt to turn dynamic factors in the other direction, arguing, for instance, that treatment lowered an offender’s sexual risk. These arguments are rarely accepted, suggesting that although dynamic factors are used to individuate, they rarely work to create a portrait of a dynamic risk subject. Rather, because sexuality is seen as fixed and as the source of danger for SVPs, rehabilitation is understood to take an extremely long time and may never be possible.

Another justification for upward adjustments is that actuarials only predict recidivism for up to 10 years, but SVP trials must account for an offender’s likelihood of reoffending throughout his entire life. As Illinois evaluator Dr Spencer wrote in his assessment of Jordan Lowe, ‘unlike assessments of recidivism, the statutory threshold for dangerousness is not time limited. Therefore, actuarial predictions of risk […] are conservative and underestimate risk.’²⁹ Dr Spencer proceeds to state that, ‘[w]ith a score of 7 [on the Static-99R], Mr. Lowe is 5.25 times more likely to recidivate than the typical offender’, and later that, ‘Mr. Lowe’s estimated 5-year risk is 24.0%; at 10 years his estimated risk increased to 33.8%.’³⁰ It is notable (though not unusual) that Dr Spencer, and SVP proceedings more generally, commits the ecological fallacy—making inferences of Mr Lowe based on the group to which he belongs. Though this is a misinterpretation of how actuarials work, here I suggest it is a further indication of the belief that ARA provides an unbiased view of the individual. In the remainder of his 55-page report, Dr Spencer justifies his conclusion that Mr Lowe is an SVP by constructing a detailed narrative of Lowe’s life, particularly his criminal history.

Further indicating that actuarialism is driven by a ‘will to know’ the offender is that both the Static-99R and Static-2002R now require evaluators to place offenders into one of four groups—each of which has different risk estimates—based on their individual dynamic and criminogenic needs. As Dr Spencer’s report explains, ‘[e]stimating an individual’s risk to engage in further acts of sexual violence with the Static-99R requires calculating his relative risk (i.e. his Static-99R score), and then determining which sample provides the most appropriate absolute risk’.³¹ Dr Spencer goes on to explain that the ‘routine sample’ is the default, but ‘[i]f an offender has sufficient dynamic or criminogenic needs, it is reasonable to use Pre-Selected or Non-Routine norms’. Dr Spencer elected to place Lowe in the ‘High Risk/High Needs’ group because of the extensive evaluation process that eliminates 96 percent to 98 percent of all offenders from commitment and because a court had already found probable cause to believe that Lowe was an SVP.

Conclusion

In this article, I have argued that law and forensic psychology co-constitute the figure of the SVP through the dual mechanisms of psychiatric diagnosis and actuarial risk assessment. Because SVP statutes require that the state prove particular aspects of individuals’ sexualities, SVP trials provide a uniquely clear illustration of the ways by which law and science constitute both individual criminal sexual subjects and socio-legal categories of sexual identity.

The constitution of the SVP as an indefinitely dangerous and permanently pathological sexual subject resonates beyond the courtroom in ways that structure our cultural views on sexuality and sexual violence and influence our public policy. By focusing excessive attention and resources on the ‘sexual predator’, we push the bulk of sexual violence into relative obscurity and promulgate the belief that we can reduce or even eliminate sexual violence by excising a discrete population—‘sexual predators’—from the polity when, in fact, such offenders are not responsible for most sex crimes. More broadly, it drives us toward a preventative paradigm that sorts people according to their ‘risk’ and preemptively detains some before actual crimes have been committed.

Risk, of course, is not a predetermined or neutral category. Rather, ‘risk as an abstract technology is always shaped and given effect by specific social and political rationalities and environments’ (O’Malley, 2004: 326). Risk may take a variety of forms and reflect embedded assumptions and values. It would be surprising, then, not to find cultural views embedded in the risk assessment process for sex offenders. The mental illness and future dangerousness requirements fit neatly with wider social views of sex offenders—that they are deranged monsters, simultaneously sick and evil. The very structure of SVP laws sends this message by requiring offenders to first serve a criminal prison sentence, which rests on the assumption that the offender exercised volitional control over his actions and is mentally sound to stand trial. Subsequently, he faces the possibility of indefinite civil commitment based on the presumption of serious mental illness and lack of volitional control. Successfully committing an SVP, however, relies on the expertise of forensic psychologists who will diagnose the offender with a mental abnormality that predisposes him to future acts of sexual violence. Perhaps even more vitally, psychologists must then provide proof that the offender is dangerous. Actuarial risk assessments objectively satisfy this requirement by putting danger in the quantitative language of probability. Because these probabilistic estimates never reach zero, courts and the public can point to these tools as proof that sex offenders remain dangerous forever, or as one court put it: ‘a person who has committed a sex offense always has the potential to commit a sex offense again in the future’,³² despite empirical evidence showing that most sex crimes are not committed by repeat offenders.

Finally, I have suggested that the SVP determination process exhibits a unique risk assemblage that does not fit clearly into discourses of risk in ‘new penology’ scholarship or recent research suggesting a resurgent concern with dynamism and rehabilitation. On the one hand, SVP proceedings are clearly concerned with making individual determinations of risk, contra ‘new penology’ arguments regarding the disappearance of the individual criminal. On the other, SVPs continue to be constituted as largely immutable risk subjects, contra arguments asserting the ascent of a ‘transformative risk subject’ in penal practice (Hannah-Moffat, 2005). I suggest this particular assemblage of risk practices results from cultural views that understand sexuality as an individual, fixed essence. This view is especially entrenched regarding sex offenders, and even more so for those considered ‘sexual predators’ and pedophiles, and is strongly reinforced by psychiatric diagnoses of permanent paraphilias and the emphasis on static risk assessment in the psycho-legal constitution of sex offenders. These views do not prevent us from wanting to know, predict, and control the individual sex offender—which is consistent with Harcourt’s (2007) theoretical account of actuarialism as stemming from a desire for individualized intervention—but they thoroughly color how we understand those individuals and their capacity for change and integration.

Footnotes

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This research was supported by the Sexualities Project at Northwestern (SPAN) and the American Council of Learned Societies.

Notes

Author biography

Stefan Vogler is a PhD candidate in sociology at Northwestern University. His research focuses on the sociology of law, gender and sexuality, and the sociology of science and knowledge. His work has been published in outlets such as Law & Society Review and the Journal of Homosexuality and has received awards from the American Sociological Association and the American Council of Learned Societies.

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