How Does Crime Type Affect Sentencing?
More than a thousand (n = 1,005) prisoners across the U.S. (70% in state prisons; 30% in the federal system) participated in a lengthy survey collected over several years ending in early 2020. The survey solicited prisoners through a books-for-prisoners program conducted by the Percy Foundation, which requested that book recipients fill out the survey in exchange. Sex offenders against minors under age 18 were specifically solicited, comprising 56% of the final sample. Violent offenders (e.g., homicide) comprised 33% of the sample and non-violent, non-sex offenders made up almost 11%. A major goal of the study was to examine the relation between crime-type and length of sentence, taking into account demographic (e.g., age at offense, race) and judicial (e.g., plea bargain vs. trial, private vs. public defender) variables.
Of key interest was whether sex offenders against minors were differentially sentenced based on sex of victim, given the traditionally much greater cultural negativity towards homosexual behavior. Such differences, if the crimes were otherwise similar, might constitute evidence for sentencing discrimination. For these offenders, about half the convictions were based on contact sex (48%), followed by child pornography offenses (43%), and then enticement (9%). Sex of victim was girls only in 41% of cases, boys only in 30% of cases, and both girls and boys in another 29%. For analyses comparing sentencing in relation to sex of victim, only the former two groups were included to avoid confounding.
Considering all crime-classes, violent offenders tended to commit their crimes at younger ages (i.e., under age 26) than the other two groups (45% vs. 20%), and they were more likely to go to full trial (51% vs. 30%), rather than plea bargaining. Sex offenders against minors more often had private attorneys (30%) than violent offenders (20%), who more often had private attorneys than non-violent offenders (10%). Sex offenders against minors, compared to the other two groups, more often were middle-class or affluent (49% vs. 38%), lived with both biological parents growing up (53% vs. 34%), had college background (56% vs. 25%), had professional or sales jobs (53% vs. 27%), and were white (82% vs. 55%). On other measures, sex offenders against minors, compared to the other two groups, had better family finances growing up, were less often physically abused, currently were more homosexually oriented, were less impulsive, and less often used illegal drugs. Finally, sex offenders against minors dominated federal prison participants (92%), whereas in state prisons violent offenders were the most frequent participant (46%), but with sex offenders against minors not far behind (40%).
In terms of maximum sentencing (in years) for specific crimes, the medians were highest for homicide (Mdn = 90), rape of an adult (Mdn = 42), sexual contact with a minor (Mdn = 30), and other violent crimes (Mdn = 20). Median sentences for child pornography (Mdn = 15) and enticement (Mdn = 14) were significantly lower than for contact sex with a minor.
Five levels of maximum sentencing were used to see whether differences occurred in relation to the victim’s sex: (1) low, ≤ 10 years; (2) medium, 11-20 years; (3) high, 21-40 years; (4) very high, 41-100 years; and (5) extreme, > 100 years, which included life sentences. For contact sex involving minors, boy victims much more often brought extreme sentences than girl victims (31% vs. 15%), while they much less frequently brought low-to-medium sentences (26% vs. 40%). No significant differences emerged based on victim sex for child pornography and enticement.
Was the significant difference in sentencing for contact sex discriminatory in relation to victim sex? Comparison with other crimes indicates the answer was yes. Focusing on the extreme sentencing category, no significant differences occurred for male versus female victims for homicide (46% vs. 41% respectively), other violent offenses (8% vs. 6%), or rape of an adult (10% vs. 3%). In short, in our legal system, which reflects our society’s values and attitudes, sex between men and boys stands out as a particularly heinous crime, more harshly punished in terms of extreme sentencing than all other crimes considered here except homicide.
An additional consideration in discriminatory maximum sentencing in contact sex with minors is the age of the victim. Did it make a difference if the victim was an adolescent or child? For this analysis, adolescence was considered ages 14 to 17 and childhood all ages under 14. It was for adolescent victims that the discriminatory sentencing was most apparent, bringing extreme sentences in 28% of cases for boy victims but only 7% for girl victims. Conversely, adolescent girls brought only low-to-medium sentences much more often than adolescent boys did (62% vs. 22%). For child victims, discriminatory sentencing was likewise apparent for the extreme sentencing category (33% for boy victims vs. 17% for girl victims). Only a small difference, however, occurred for the low-to-medium categories (27% for boys; 34% for girls). In short, for teenagers in particular, despite the reasonable argument for their greater agency, sentencing in the case of adolescent boys compared to girls was highly lopsided.
Finally, for sex offenses involving minors, we attempted to account for (i.e., predict) maximum sentencing based on eight variables in an ordinal logistic regression analysis. Maximum sentencing was based on the five categories of increasing severity discussed previously. The predictor variables were: victim sex (male vs. female); offender age at time of offense (<21, 21-25, 26+); victim age (<12, 12-14, 15-17); offense type (contact vs. non-contact); number of victims (0 or 1 vs. 2 or more); victim relationship (relative vs. not); legal representation (private vs. not); and case disposition (plea bargain vs. trial). Offender age at offense and whether the victim was related were non-predictive, while the other variables were. In order of predictive power and focusing on the level associated with heavier sentencing, going to trial was most impactful in increasing sentencing terms, followed by contact sex, then boy victims, victim age being under 12, having two or more victims, and lastly not having private representation. Extreme sentencing was most likely, with chances being 69%, when the victim was a boy under age 12 involving contact sex, with multiple boy victims, and where the defendant did not have private representation and went to trial. When all these factors were in place except the victims were girls instead, chances of extreme sentencing dropped to 52%. Conversely, the best-case scenario (i.e., in terms of likelihood of low sentencing) was when the victim was a girl, multiple victims did not occur, the girl was aged 15-17, the sexual event was non-contact, the defendant had private representation, and he plea-bargained. Here, the chances of low sentencing were 69% (if all factors stayed the same, but the victim was a boy, the chances dropped to 52%). Finally, if we restrict cases to contact sex, the best scenario for girl victims (i.e., getting low sentences) was when only one was involved, she was aged 12 to 17, private representation was had, and the defendant plea-bargained. Here, there was a 44% chance of getting a low sentence. With all these factors the same, but substituting a boy for girl victim, the chances of getting a low sentence dropped to 27%.
In summary, sex offenses against minors were often harshly punished (relative to most other crimes in the survey), especially when the victim was a boy. The evidence in the analyses points to discriminatory sentencing here, which needs clarification by referring to the literature on how boy versus girl victims actually react in the short term and respond in the long term to such sexual events, as well as to the literature on our culture’s current and historical attitudes toward homosexual behavior. Such a review is beyond the scope of this short paper, but in brief it consistently points to substantially more negative response by girl victims, but it shows a special prejudice towards male homosexual behavior that persists to the present day, both of which suggest the sentencing disparities reported here are discriminatory rather than just.