Highlights on Prisoner Study (2016)

Prisoners from 16 states and the U.S. Federal prison system responded to a questionnaire in connection with a books-for-prisoners program. The questionnaire consisted of 118 questions, the first 33 of which have been analyzed with key results presented below.

Goals of the Study

A main goal of the study was to examine whether there was bias in sentencing in child sex offenses such that men sexually involved with boys (henceforth “victims,” as per legal convention) get harsher treatment than men involved with girl victims. The reason one might expect this discrimination is our society’s long history of homophobia, which means the public and the law’s special antipathy towards males who have sex with other males. (Notably, this term is not restricted to the politically correct usage concerning only gay males in same-age contacts, but to any same-sex sexual behavior regardless of age.)

A second goal of this study was to examine how age of victim affected sentencing. The U.S. has the highest ages of consent in the Western world. The age of consent is 14 in many other Western countries, and if not 14, then 15 in some and 16 in others. So, the question is: how are men in the U.S. sentenced who have sex with minors aged 14 to 17? Are they sentenced the same as when the victims are much younger? If so, this would indicate another problem in our judicial system, in which its punishment approach is out of touch with the international community.

A third goal of the study was simply to document what the current practice appears to be in sentencing these sex offenses. How severe has the sentencing become? How does the sentencing compare to that found in the rest of the West? And how does sentencing in the child sex cases compare with other types of crimes?

Study Sample

The prison sample consisted of 543 men throughout the U.S., with an average age of 43 and a range from 19 to 79. The distribution of crime types in the different states is listed in Table 1. As can be seen in the table, the U.S. federal system had the most cases (n = 157) followed closely by Texas (n = 143)

 

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The crime types examined crossed by prisoners’ ethnicity is presented in Table 2.

 

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As can be seen in the table, child sex offenses made up more than half the cases (60%), with murder-manslaughter making up 14%, adult rape over 3%, other violent crimes almost 14%, and property or drug offenses almost 10%. Among White prisoners, over two-thirds (68%) were in for child sex offenses. Among Blacks, violent crimes (including adult rape) accounted for about 63% of cases.

Combining crime types into 3 categories (child sex offenses, adult rape, other offenses), Table 3 shows the distribution of education for each type of crime.

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In the table, we see that child sex offenders mostly had some college background (58%), while most adult rapists and other criminals had only high school or less (75%). Other background variables were analyzed for the study, but these two convey the gist of the sample: Child sex offenders were whiter and more educated, and as such were distinct from the profile of “ordinary” criminals.

For the child sex cases, as shown in Table 4 below, three types occurred: contact sex (51%), enticement (10%), and porn (39%).

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Minimum Sentencing

One key focus was to examine sentencing in child sex cases in relation to victim gender. The key measure in the study was the minimum number of years of sentence. Below, minimum sentences are examined in two ways: analysis of means and of medians. Means are the ordinary average of a set of numbers. When distributions are skewed, means can be misleading. In the present study, large numbers of prisoners got very heavy sentences compared to light sentences. Therefore the distributions were skewed to the upper side. Therefore, looking at medians was also important. Medians are the middle number or score in a distribution and are not affected by extreme scores. In the present study, analyses of means are most useful for telling us whether certain factors (e.g., victim gender: male vs. female) made a difference (e.g., showed discrimination). But analyses of medians give us a more accurate estimate of differences between groups.

Of first interest was to examine the largest category of child sex cases (i.e., contact). Here, sentencing differences between male and females victims were of prime interest, as well as how sentencing was affected by age of victim. Table 5 presents the mean minimum sentences in the different combinations of victim gender and victim age. (Note that, in victim gender, the male category also includes “both” in cases where victims included girls in addition to boys. In practice, though, most cases in the “male or both” were only males.)

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The table reveals clear and strong discrimination based on victim gender. Men with boys got on average 26 more years in prison than men with girls. This difference was highly statistically significant. On the other hand, and surprisingly, age of victim made no difference. Men with minors aged 14 to 17, legal in many other Western countries, were sentenced just as harshly as men with children aged 10 or less. This illustrates the power of labeling, where just because in America sex with teenagers aged 14 to 17 is labeled “child sexual abuse,” so it is viewed as such, resulting in the same kind of sentencing as anything else labeled this way. But in other countries, with different labeling (i.e., calling these relations consensual adolescent-adult sex), then no punishment follows. Finally, the mean minimum sentence lengths are decades, especially for man-boy sex. Such sentencing compared to all other Western countries represents an extreme outlier, reflecting a unique punitiveness in American jurisprudence and politics.

For a more accurate picture of minimum sentencing as a function of victim gender and age, medians are presented in Table 6. In the table it can be seen that men with boys got more than twice as many years (Mdn = 44) compared to men with girls (Mdn = 20). Further, men with boys 14 to 17 got just as many years of minimum sentence (Mdn = 44) as did men with boys aged 10 or under (Mdn = 40). Men with boys 11 to 13 got the highest minimums (Mdn = 77). Clearly, man-boy sex in general was treated in draconian fashion in absolute number of years of minimum sentence, and man-boy sex was treated substantially more harshly than man-girl sex. For men with boys 11 to 13, versus men with girls 11 to 13, minimum sentences were nearly four times as much. For men with boys 14 to 17 compared to men with girls 14 to 17, sentences were more than twice as much. These findings indicate: (1) sizable discrimination in sentencing based on homosexual relations; (2) the overwhelming influence of the construct of child sexual abuse, which treats sex with middle adolescents as equivalent to sex with very young children, thereby explicitly and implicitly ignoring issues such as sexual self-determination, which other Western countries take some recognition of, while ours does not; and (3) a draconian system, in which sentences are essentially life-destroying in the typical case.

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The next analysis concerned the effects of prior convictions on sentencing in child sex contact cases. Figure 1 below shows the results in terms of mean minimum sentences as a function of having had a male versus female victim and having had no prior offence, a prior offence that was not a sex crime, or a prior sex offence. Gender victim and priors-type interacted significantly. For male victims, minimum sentencing increased consistently from no priors, to a non-sex prior, to a sex prior. In the case of female victims, however, the trend across prior-types was inconsistent and not statistically significant.

 

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The median minimum sentences in Figure 2 below show the differences even more dramatically. In the figure, men with boys with no priors had a median minimum sentence of 30 years. With a non-sex prior, the minimum sentence nearly doubled to 55 years. And with a sex prior, the median minimum sentence doubled once again to 105 years. On the other hand, for female victims minimum median sentences were flat across the priors-types, with an overall median minimum sentence of 20 years.

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The priors analysis once again points to a special antipathy in the case of homosexual contacts with minors, where prior offenses, especially of a sexual nature, unleash more and more draconian response by the courts.

The next analysis concerned the effect of plea bargaining versus and jury or bench trial on minimum sentencing in relation to victim gender. Figure 3 below shows that the effect is dramatic, especially in the case of male victims.

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For male victims, the median minimum sentence was 30 years when plea bargaining but 100 years when having a trial. For female victims, the corresponding medians were 17 and 50. Overall, median minimum sentences tripled when not plea bargaining.

The results above of a median minimum of 100 for male victims compared to 50 years for female victims points again to dramatic discrimination in addition to obvious draconianism.

Figure 4 below shows the next analysis, where minimum sentencing was examined in relation to both victim gender and legal representation. When men with male victims had private counsel, their median sentence was 30 years, but this doubled to 60 years with public defenders. Median minimums, however, were flat in the case of female victims for different types of legal representation.

For male victims, the median minimum sentence was 30 years when plea bargaining but 100 years when having a trial. For female victims, the corresponding medians were 17 and 50. Overall, median minimum sentences tripled when not plea bargaining.

The results above of a median minimum of 100 for male victims compared to 50 years for female victims points again to dramatic discrimination in addition to obvious draconianism.

Figure 4 below shows the next analysis, where minimum sentencing was examined in relation to both victim gender and legal representation. When men with male victims had private counsel, their median sentence was 30 years, but this doubled to 60 years with public defenders. Median minimums, however, were flat in the case of female victims for different types of legal representation.

For male victims, the median minimum sentence was 30 years when plea bargaining but 100 years when having a trial. For female victims, the corresponding medians were 17 and 50. Overall, median minimum sentences tripled when not plea bargaining.

The results above of a median minimum of 100 for male victims compared to 50 years for female victims points again to dramatic discrimination in addition to obvious draconianism.

Figure 4 below shows the next analysis, where minimum sentencing was examined in relation to both victim gender and legal representation. When men with male victims had private counsel, their median sentence was 30 years, but this doubled to 60 years with public defenders. Median minimums, however, were flat in the case of female victims for different types of legal representation.

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In a series of correlation analyses, it was found that minimum sentence length was positively correlated with number of victims in the case of contact sex (r = .24) and enticement (r = .41).

A regression analysis was performed to predict minimum sentence length for child sex cases from a series of predictors, including: (a) whether the sex involved contact; (b) the victim’s gender; (c) the number of victims; (d) the victim’s age or age of youngest victim; (e) whether the case was plea bargained; (f) whether private counsel was used; (g) the ethnicity of the defendant; (h) the defendant’s educational background; and (i) the defendant’s work status or prestige. “Regression” means building a model (i.e., an equation) to best relate the variable to be predicted (here, minimum sentence) with the predictor variables.

Five of the predictors listed above were statistically useful (i.e., significant) in predicting minimum sentence length. Together, these variables accounted for 35% of the variance in sentence lengths, which is a sizable amount compared to other typical analyses in the social sciences.

Table 7 shows the statistically significant predictors constituting the model. The variables are listed in order of importance in terms of predicting sentences (which is indicated by their beta weights in column 4, which are standardized values that can be compared across variables). The most important factor was plea bargaining. Not plea bargaining added an average 30 years to one’s sentence (shown by the unstandardized regression weight “B” in column 2). The next most important factors were contact sex (vs. not contact) and victim gender. Contact sex added 18 years to the sentence on average, while having a female victim subtracted 16 years. The last two factors, both of equal effects, were number of victims and legal representation. Every additional victim added almost 3 years to the sentence, while private legal representation subtracted 11 years.

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From the above, the regression model (equation) for predicting minimum sentence length is:

Predicted minimum sentence = 39.23 + 30.07(disposition) + 18.45(contact) – 16.27(gender) + 2.85(number) – 11.18(legal representation)

In this equation one can enter values using the table above. For example, if a defendant in a child sex case plea bargained (disposition = 0) to contact sex (contact = 1) with a boy victim (gender = 1), who was the only victim (number = 1), and had a private lawyer (legal representation = 1), then his predicted minimum sentence would be 33 years. If all factors were the same, but he had the contact with a female victim instead, the predicted minimum sentence would be 17 years.

If he had 2 boy victims with contact sex and went for a jury trial using a public defender, his predicted minimum sentence would be 77 years.

These are common scenarios, and yet the sentences are mind-bogglingly large, especially with male victims.

In the last analysis for this brief report, we consider minimum sentences in child sex cases compared to the other crimes types that appeared in the study. Table 8 below shows the results.

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As can be seen in the table, child contact sex got an average minimum sentence almost three times those in the child enticement and porn cases. Child contact sex cases were the same as adult rape cases in minimum sentence length, but were treated much more harshly than “other violent” cases and property or drug cases. When the child contact sex cases are restricted to those involving boys, the minimum sentences (about 60 years) are not too far behind homicide.

Discussion

The goal of the study was to test for sentencing discrimination in child sex cases based on victims’ gender, effects of victims’ ages on sentencing, and to assess whether sentencing in general is extreme. The study showed strong discrimination effects based on victim gender: For contact cases, men with boys got more than double the median minimum sentence compared to men with girls (44 vs. 20 years). Further, the study showed that age of victim did not matter: men with older minors aged 14 to 17 were treated just as harshly as very young victims. Finally, clearly sentencing was extreme for sex cases.

C. S. Lewis said that cruelty is worse than pederasty. He made this comment based on having observed both while a student in an elite English boarding school—cruelty was rampant and pederasty acted as one of the few reliefs to it, he noted. What we see today in modern America is cruelty in the criminal justice system especially directed toward pederasty and homosexual pedophilia (which are treated the same). What we have more and more is a return to the extremities of punishment in Jeremy Bentham’s day. Bentham wrote extensively on pederasty (by which he meant any male-male sex, but for which he resorted strictly to the man-boy type in Greece and Rome to attack English punitiveness). He refuted shallow arguments by Voltaire and Montesquieu, as well as British commentators, on the exceptionalism of pederasty and why it must be prevented and so harshly punished. In the end, he never published his writings out of fear of being personally attacked. But he did extensively publish on law reform based on the argument of utility: punishment must arise not from antipathy but from objective harm. His ideas revolutionized jurisprudence throughout the Anglosphere and beyond. Perhaps one day the rational assessment of harm, as opposed to mob antipathy, will reform the clearly draconian and cruel pattern that we have today concerning pederasty.


Some readers of our preliminary report may wonder whether our results are representative of the prison population as a whole. Since our questionnaire went mainly to prisoners interested in our book program, the prisoners who responded may tend to be better educated than average and incarcerated for longer terms than average. Those serving short sentences are less likely to seek education while in prison or to be dissatisfied with the meager offerings available in their prison libraries.

The free book program was initially advertised in two newsletters directed to sex offenders, and then spread by word of mouth among prisoners, hence the high proportion of sex offenders in our sample. However, there is no reason to think that our sample is in any way biased between same-sex and opposite-sex offenders, such that we would have disproportionately long sentences among the former and shorter sentences among the latter. So our basic finding of disparate treatment remains valid.

How representative are the sentences reported? The one place where we can do a direct comparison against a readily available database is with regard to child pornography offenses, which are almost always handled in the federal system. The US Sentencing Commission’s 2015 Sourcebook of Federal Sentencing Statistics (www.ussc.gov/research/sourcebook-2015), in Table 13, shows that the mean sentence for “child pornography” among all prisoners sentenced that year (n = 1903) is 153 months (i.e. 12.75 years). Our statistics record a mean of 16.36 years, which is somewhat higher (by a factor of 28.3%), but not radically different. The USSC Sourcebook acknowledges that only kidnapping and murder receive longer sentences in the federal system, which is again consistent with what we found.

— September 29, 2016

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