Tuesday, February 11, 2014

Recidivism, Restorative Justice, and the Abnormally High Rate Of Rape In Alaska

In a recent article, CNN reporter John D. Sutter referred to the state of Alaska as “the national epicenter of rape.”  Sutter is not some avid anti-Alaskan, nor does he seem to harbor any irrational dislikes of the Pacific Northwest.  Rather, Sutter wrote the article in response to the 2012 FBI crime statistics, which showed Alaska to have the highest rate of reported rape.  According to the FBI report, eighty rapes are reported for every 100,000 people; almost three times the national average of twenty-seven.  In comparison to New Jersey, where rape is reported the least, Alaska’s rapes per 100,000 people is seven times higher.  Sutter’s report went even deeper and found that 59% of women in Alaska have experienced “sexual or intimate partner violence, and that four in ten women reported to have been raped or sexually assaulted.

Sutter spends a good part of his experience in Alaska trying to find out why these numbers are so high.  In his research, he interviews an Alaskan man who had confessed to rape, served time in an Alaskan prison, and has since entered a sexual offenders program.  The program that the man “Sheldon” (Sutter changed the name of his interviewees for their privacy) is in uses a restorative justice approach.  The program focuses on community and forgiveness rather than punishment.  A sex offender is surrounded by a “safety net” that includes members of the community, religious figures, and even victims (in Sheldon’s case it includes the mother of the girl he raped).  This program also has a 2% recidivism rate, about 3.3% lower than the national rate (according to a study taken of 9,691 sex offenders nationwide).

Restorative justice is a very divisive topic in the United States.  On one side it is preached as an innovative new approach to reintroducing offenders into society; on the other it is viewed as an idealistic cushion that lets felons off too easy.  At its core belief though, restorative justice is a process that attempts to include the victim, offender, and community to more directly address the crime and eventually bring justice to the victim.[1]  Additionally, the restorative justice process plays a role in reducing recidivism by trying to force the offender to understand the injury they have caused the victim. By including the victim in the process, the offender is forced to confront the consequences of his crime.  Advocates of restorative justice often argue it in contrast to “retributive justice” - methods of punishment focused on retribution.  Advocates believe that whereas retributive justice leaves the victim out of the healing process, restorative justice techniques provide the victim answers and allow the offender to make the proper amends for his crime.

With some exceptions, the sentence for an aggravated sexual assault charge will rarely imprison an offender for life.  In most cases, the offender will eventually leave prison and is expected to be a productive member of society upon their release.  Fighting recidivism in any crime is a high priority, but perhaps the priority is even higher with rapists.  Studies have found that there is no typical profile of a sex offender (except that an overwhelming majority of sex offenders are white males[2]).[3]  Contrary to Sutter’s implication that most sex offenders were sexually or physically abused as children, researchers have found that 91% of sexual offenders denied experiencing sexual abuse as a child.  Predicting who is going to be a rapist seems to be an insurmountable challenge.  In that regard, predicting who is going to offend again can be a daunting task.  Such statistics call for practitioners and academia alike to abandon uniform solutions to “curing” such a diverse population, especially when the stakes are this high.

With state sentencing guidelines usually requiring convicted sexual offenders to enroll in state registries after prison and avoid coming into contact with victims and similar age groups, the state is providing the same uniform treatment to a group of offenders who do not share glaring commonalities.  This is where restorative justice may play an important role.  The ingenuity of restorative justice is that no treatment can ever be the same.  An offender’s treatment program is designed around the offender’s crime, rather than his general profile as a sexual offender.

By including the victim and the community, the offender is forced to deal with his crimes head-on, all the while providing the victim an opportunity to play a role in the justice system.  Studies have shown that rapists are exceptionally keen on rationalizing their behavior;[4] perhaps the answer to this would be to force sexual offenders to confront those they have hurt and try to make them understand the damage they have done.  Further, once an offender has served their time, shouldn’t the focus shift from retribution to protecting society?  If that is the case, post-jail remedies should be centered on stopping the offender from committing the crime again, inherently making society safer.

There are several organizations around the country that advocate for restorative justice over retributive justice.  With the prisons becoming more and more overcrowded, there is some emphasis on stopping offenders from reoffending.  The National Association of Community and Restorative Justice and the National Council on Crime and Delinquency’s Restorative Justice Project are two organizations looking to publicize and popularize community justice efforts.  As practitioners, criminal attorneys should look to local statutes, as well as post-jail programs, that may offer restorative justice options.  Recommendations to judges during sentencing, as well as advising clients while in prison, are two ways to get offenders into these programs and hopefully lower the recidivism rate even further.

With a national recidivism rate of 5.3%, there is not exactly a national movement to change the way justice system deals with sexual offenders.  Further, most people are not trying to ease a sexual offender’s transition out of prison.  There is something to be said for the victims of rape and sexual assault though.  Rape is often called a crime of power, rather than a crime of passion.  In light of that, victims of these crimes tend to feel powerless, and the emotional scars of the crime can last decades if not a lifetime.  Restorative justice is not about going easy on offenders, but rather providing victims a role in the justice system.  Sheldon’s program did not occur in lieu of prison time and there is certainly no need to lower or soften sentences for people who commit these heinous crimes.  However, if we have expectations of these people one day reentering society, than it is the role of practitioners to advocate for whatever provides the safest environment possible.  While 5.3% may not be a glaring recidivism rate, the 2% rate that Sheldon’s program provides still sounds far more appealing

Calen Weiss
Articles Editor, Criminal Law Practitioner

Picture by Andrew Bardwell from Cleveland, Ohio, USA (Jail Cell), via Wikimedia Commons.

[1] Lee, Christopher D., They all laughed at Christopher Columbus when he said the world was round: The not-so-radical and reasonable need for a restorative justice statute in the model world30 St. Louis U. Pub. L. Rev. 523, 528 (2010-2011).
[2] Lawrence Greenfield, Sex offenses and offenders: an analysis of data on rape and sexual assault: sex offenses and offenders 3 (Bureau of Justice Statistics 1997).
[3] Diana Scully, Understanding Sexual Violence: A Study of Convicted Rapists 142-43(1990).
[4] Nancy Slicner, Violence Against Women Act Seminar: Sexual Assault Sentencing Advocacy, Prosecuting Attorney’s Association of Michigan (Mar. 20-21, 2007). 

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