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BJS fuels myths about sex offense recidivism, contradicting its own new data

A new government report reinforces harmful misconceptions about people convicted of sex offenses. Here's our take on how to parse the data.

by Wendy Sawyer, June 6, 2019

By now, most people who pay any attention to criminal justice reform know better than to label people convicted of drug offenses “drug offenders,” a dehumanizing label that presumes that these individuals will be criminals for life. But we continue to label people “sex offenders” – implying that people convicted of sex offenses are somehow different.

A new report released by the Bureau of Justice Statistics should put an end to this misconception: The report, Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-2014), shows that people convicted of sex offenses are actually much less likely than people convicted of other offenses to be rearrested or to go back to prison.

But you wouldn’t know this by looking at the report’s press release and certain parts of the report itself, which reinforce inaccurate and harmful depictions of people convicted of sex offenses as uniquely dangerous career criminals. The press release and report both emphasize what appears to be the central finding: “Released sex offenders were three times as likely as other released prisoners to be re-arrested for a sex offense.” That was the headline of the press release. The report itself re-states this finding three different ways, using similar mathematical comparisons, in a single paragraph.

What the report doesn’t say is that the same comparisons can be made for the other offense categories: People released from sentences for homicide were more than twice as likely to be rearrested for a homicide; those who served sentences for robbery were more than twice as likely to be rearrested for robbery; and those who served time for assault, property crimes, or drug offenses were also more likely (by 1.3-1.4 times) to be rearrested for similar offenses. And with the exception of homicide, those who served sentences for these other offense types were much more likely to be rearrested at all.

Chart comparing 9-year rearrest rates by most serious commitment offense type. The chart shows that people released after serving sentences for rape or sexual assault are much less likely than those who served sentences for property, drug, public order, or violent crimes generally to be rearrested.

The new BJS report, unfortunately, is a good example of how our perception of sex offenses is distorted by alarmist framing, which in turn contributes to bad policy. That this publication was a priority for BJS at all is revealing: this is the only offense category out of all of the offenders included in the recidivism study to which BJS has devoted an entire 35-page report, even though this group makes up just 5% of the release cohort. This might make sense if it was published in an effort to dispel some myths about this population, but that’s not what’s happening here.

Every piece on recidivism should come with a warning label

Whenever we talk about recidivism, it’s important to understand that the data itself is categorically flawed.

Any time we talk about recidivism, it’s important to understand that recidivism data – which is so essential to the idea of a permanent “sex offender” – is categorically flawed. “Recidivism” suggests a relapse in behavior that leads to a return to criminal offending. As in the BJS study, this is often measured by post-release arrests (rearrest), but arrest does not suggest conviction or even actual guilt; of all recidivism measures, rearrest casts the widest net.2 Usually, these measures also don’t account for what the post-release offense is, even though common sense tells us that a post-release arrest for a liquor law violation is very different than an arrest for another sex offense. Better measures to indicate a return to criminal behavior might be reconviction or receiving a new prison sentence, but most jurisdictions don’t track all of these indicators, and certainly not with much detail.3 Finally, timeframes matter, since rearrest is much more likely soon after release, and the longer people go without reoffending, the lower their risk of ever doing so. This BJS report offers a remarkably long look-back period, but such a long period also risks correlating criminal behaviors that stem from unrelated motivations or circumstances.

For more on the myriad problems with recidivism data, see:

Framing aside, the recidivism data presented in the BJS report can offer helpful perspective on the risks posed by people after release. Whether measured as rearrest, reconviction, or return to prison, BJS found that people whose most serious commitment offense was rape or sexual assault were much less likely to reoffend after release than those who served time for other offense types. The BJS report shows that within 9 years after release:

  • Less than 67% of those who served time for rape or sexual assault were rearrested for any offense, making rearrest 20% less likely for this group than all other offense categories combined (84%). Only those who served time for homicide had a lower rate of rearrest (60%).
  • People who served sentences for sex offenses were much less likely to be rearrested for another sex offense (7.7%) than for a property (24%), drug (18.5%), or public order (59%) offense (a category which includes probation and parole violations).
  • Only half of those who served sentences for rape or sexual assault had a new arrest that led to a conviction (for any offense), compared to 69% of everyone released in 2005 (in the 29 states with data).

While the data was more limited on returns to prison,1 the study found that within 5 years after release, people who had served sentences for rape or sexual assault also had a lower return-to-prison rate (40%) compared to the overall rate for all offense types combined (55%). BJS notes that some of these returns to prison were likely for parole or probation violations, but because of data limitations, it is impossible to say how many were for new offenses, much less how many were for rape or sexual assault.

In sum, the BJS data show that people who served time for sex offenses had markedly lower recidivism rates than almost any other group. Yet the data continue to be framed in misleading ways that make it harder to rethink the various harmful and ineffective punishments imposed on people convicted of sex offenses.

The recidivism data suggest that current legal responses to people convicted of sex offenses are less about managing risk than maximizing punishment. The desire for retribution is understandable; unquestionably, rape and sexual assault inflict serious and lasting trauma. But our criminal justice system does a poor job of providing survivors of rape, sexual assault, and other violent crimes what they really want. In a 2016 survey of crime survivors, the Alliance for Safety and Justice found that, “Survivors of violent crime — including victims of the most serious crimes such as rape or murder of a family member — widely support reducing incarceration to invest in prevention and rehabilitation and strongly believe that prison does more harm than good.” But more prison time is the default response: those released after serving sentences for rape and sexual assault served longer sentences, with a median sentence of 5 years (compared to 3 years for all others combined) and over a quarter serving 10 years or more before release.

And for many people convicted of sex offenses, confinement doesn’t end when their prison sentence does. Twenty states continue to impose indefinite periods of involuntary confinement under civil commitment lawsafter individuals have completed a sentence (or, in some cases, before they are even convicted). Proponents justify the practice as “treatment,” but conditions of civil commitment are punitive and prison-like, and this confinement is hard to justify with the recidivism data we have. The likelihood of post-release arrest for another rape or sexual assault for this group is less than 2% in the first year out of prison, and after 9 years, less than 8% have been rearrested for a similar offense. Those who are released at age 40 or older are even less likely to be rearrested for another sex offense, with re-arrest rates about half those of people who are released at age 24 or younger.

After prison, a number of other special restrictions make reentry especially challenging for those who have served sentences for sex offenses, including registration, public notification, and restrictions to residence and employment. A current proposal suggests banning them from using New York City mass transit. (Even before release, some restrictions make it difficult for some people to leave prison when they would otherwise be paroled.) But these restrictions tend to cause more problems than they solve. Residence restrictions in particular have contributed to homelessness and other problems in cities where they leave little room for returning citizens. According to a 2015 U.S. Department of Justice brief, “residence restrictions may actually increase offender risk by undermining offender stability and the ability of the offender to obtain housing, work, and family support.”

In another recent academic article, Hanson et al. agree that these additional restrictions are “justified on the grounds of public protection,” even though the underlying assumptions may be wrong: “Individuals are targeted because policy-makers believe they are likely to do it again. This is a testable assumption, and, as it turns out, not entirely true.” Their analysis shows that individual recidivism risk varies widely, can be low enough to be indistinguishable from that of people convicted of non-sex offenses, and drops predictably over time. The data published by BJS track with those findings.

Collectively, the research seems fairly clear: our responses to people convicted of sex offenses do not reflect the actual – generally low – risks they present. Instead of panicking about the small portion who reoffend after release, it’s time we talk more rationally about responses that effectively support desistence from crime – and serve the actual needs of victims of violence.

Footnotes

  1. Only 23 states could provide the necessary data for the 5-year follow-up period, and only 17 could do so for the entire time frame. The BJS report only includes return-to-prison rates for the first 5 years after release in the 23 states with the necessary data.  ↩

  2. Conversely, it also only captures those behaviors that are caught by police. People who break laws after release but are never arrested would not be captured in recidivism data at all. Police presence and enforcement are therefore factors that affect recidivism statistics, as are prosecutorial decisions (for reconviction rates) and sentencing policies and practices (for reincarceration rates).  ↩

  3. While the BJS study compares overall rates of reconviction and returns to prison by most serious commitment offense, only the rearrest data allows us to compare post-release offenses by most serious commitment offense.  ↩

Wendy Sawyer is the Prison Policy Initiative Research Director. (Other articles | Full bio | Contact)

6 responses:

  1. This is a good analysis. One has to ask why the DoJ report not only leaves the actual numbers off the report in favor of using percentages as well as why they bury the fact the reconviction rates are only half of the rearrest rate.

    It seems like people simply cannot believe the reoffense rates are so low and so they must accentuate everything that confirms their personal biases. Perhaps that is why victim advocates love to stress the myth of widespread underreporting.

  2. Will Bassler says:

    In an article that will be published tomorrow morning on the SOSEN website we addressed this very issue but not only that we point out the fact that this in tire fiasco is based on two things first of all it’s rearrest records and in this country nobody is considered guilty until after they’ve been convicted the media learned this after many lawsuits that you don’t assume a person is guilty until after they’ve been convicted. For the study apart for and actually found a hard number giving average yearly reconviction rate for people with prior sexual conviction of 4/10 of one percent and the highest reconviction rate was during the second year of release and 8/10 of one percent. Secondly if you want to compare prisoners released from prison the on nonsexual convicted group that was released during this time. Was 5.6 times more likely to be involved in a New Sex Crime than people with prior sexual conviction.

    If you’re interested take a look at the article its title is “A limited study done by the Department of Justice still proves that registrants have the lowest re-offense rate.” And it will be published on our site SOSEN.org June 7

  3. EdC says:

    It is important to note that for the purpose of the BJS study, ¨sex offenders” are defined as those convicted of rape or sexual assault. The 7.7% statistic applies to that cohort, which is a small subset of all those convicted of sex crimes. Since the term sex offender commonly refers to the entire group, a casual reader could easily ascribe the 7.7% rate to all offenders. Overall, the sexual recidivism rate is well below 5%, perhaps as low as 2-3%.

  4. Dustin says:

    I question the timing. Willing to bet that this report (or rather, the headline and story) will be cited in Michigan’s new registry that in all likelihood won’t be any more constitutional than the one it will replace.

  5. Arnold says:

    There are several/many actions that constitute “sex offenses”. Usually, rape, sexual assault, possession of child pornography and indecent exposure lead the list. On possession, however, there are levels or degrees. There’s the person who receives and distributes; one who shows it to others without actually distributing it; and the person who secures it only for him or herself, never distributes or shows it. Nevertheless, this last person,if convicted, also must register for some period of time, wear a tracking device for some period of time and oftentimes is limited where he or she may live. Also, there is ample evidence that people, usually males, who survived childhood sexual assault seek child porn because, perversely, they feel the assault(s) were their fault and the child porn will help them figure out what’s “wrong” with them. Unfortunately, this doesn’t work and the action becomes addictive. The “justice system”, though, provides no counseling for such people when imprisoned, unlike for drug and alcohol addiction. Why? Then, they can be punished for years after being released from prison by living restrictions and monitoring devices. Why? Even if such offenders are rehabilitated through counseling and other treatment, those punishments stand. Why? A June, 2019 Alaska Supreme Court decision addresses these and other questions and ruled in favor of the plaintiff. See John Doe v. State of Alaska, Supreme Court No. S16748.

  6. Kathleen says:

    As a female who has experienced sexual assault in both childhood and adulthood, I appreciate some effort, but the registry is lip service … and too sweeping. The difference between true pedophiles and violent rapists — the real deviances from safe sexual behavior — and a consensual relationship with what may seem too large an age gap to some is a huge world of difference. Bad adult judgment combined with teenaged idiocy does not make a sexual predator, unless the behavior continues over a long period — showing an inability to mature at any point.

    Putting statutory rapes on the same level of molestation and violent rapes confuses the very essence of rape, in which non-consent is a stimulus in itself. The registry is useless when it lists everyone who has ever so much as peeped through a window.

    Sex offenses are something that need to be worked on by both genders. You cannot blame a woman for her rape because she got sloppy drunk if you were too sloppy drunk to say to yourself, “She’s incapable of consent.” And men need to be especially cognizant of this as most women, especially the young without experience, have far lower alcohol/drug tolerance.

    What also needs to be recognized is that if a woman is in a bar stark naked, she’s beyond consent, whether intoxicated or an escaped mental patient. The only people who have a right to touch her are the EMTs or police. If men think women dress too provocatively, they should also be objecting to objectifying women. But self-control has nothing to do with mode of dress. It has only to do with self-control — outside stimuli says there is no self-control. It’s an oxymoron. If control is so out of reach, no woman would be safe on a beach without dressing in the old woolens.

    Socially, we need to take equal responsibility for sex and all its repercussions — birth control, pregnancy, parenting and honesty about our actions. A pregnant woman is obvious, and she deals with all the emotional, social, economic and physical fallout. When we start being more honest about the reality of routine sex and reproduction — not to mention the real differences between men and women (sorry, guys, but “we” don’t get pregnant, just like “we” don’t get erections or prostate cancer) — then maybe we can start looking at sex offenses in a realistic, non-combative and mob-mentality light, from both sides.

    We’ve got a screwed-up judicial system, no doubt; but we’ve got a more screwed-up social system that pits men against women, whites against blacks, Christians against anyone — and in the meantime, the robber barons are laughing all the way to the bank over the divisiveness and mayhem that fattens their pockets — only one aspect of which is prison for profit.

    Respect women, recognize the differences and how those are complementary assets. Put forth your energies into taxation WITH representation. Also recognize that if you are in prison, the women are pulling hard time too. They are most likely trying to support families, not only without your support; but also, on a single income that is 20-30% lower simply because they’re women.

    Think before you respond. Have you realistically reviewed your actions? But as to me, I’m not a sheltered, remote prima donna. I did a three-year sentence myself; and my father did a long one for four murders, so I grew up on the periphery of prison and in foster homes — where real sexual predators recognize easy prey. But I also have a nephew who has been on the registry since age 12.

    I recognize injustice, but I also recognize sociopaths and narcissists. If I were to estimate, I’d just hazard a guess that about 30-35% of you are people who had a momentary lapse in judgment or had public defenders who were vastly unequipped to defend your innocence and would have or will live normal lives. I would guess that 25-30% of you are so guilty that admission of guilt is the least of the problems. And the remaining portion, I don’t know shit about, because I can’t “know” anything. But I will say that in my experiences in foster care and visiting my father in prison, there’s a whole lot of men who don’t have sexual boundaries.

    You can lash back at me for this honesty; or you can ask your male counterparts to behave better and hold yourselves, not women, responsible for your reputations and actions. A woman who enjoys sex is not a whore. She is human, also with biological drives. Perhaps her knuckles drag as well. But the virgin/whore standard is ridiculous, especially if you consider your mothers, sisters, aunts, etc. If you love your siblings, nieces, nephews, etc., they’re not here by divine intervention.

    But if you consider your mother, sister, aunt being raped, you have to face the brutality that is visited upon women. Nothing is more personal or insulting upon a woman’s body or mind than rape. Some women would rather die — and do. The very social importance of virtuosity is what the rapist violates — the sense of self and acceptability.

    You can talk to the deaf judicial system and scream to every other court and bureaucracy, but what will free you is the trust of women.

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