By: Jessica Novick
"Prison bars" by Ken_Mayer is licensed under CC BY 2.0.
With the release of The Ken and Barbie Killers: The Lost Murder Tapes mini-series documentary on HBO’s Max recently, a renewed focus can be put on the “dangerous offender” status that murderer and serial rapist Paul Bernardo has who is one of the two central figures of the docuseries.[1] Sexual offenders are some of the most feared types of criminals in our current society. Law & Order: SVU just began airing its 25th season, and the enduring legacy of this show and others similar to it has enriched the cultural fear of sex offenders.[2] Now is an important time culturally to look at the special treatment governments have given to caught and convicted sex offenders and how it reflects our morals and view of ourselves.
Twenty states, D.C., and the federal government in the United States have laws allowing for the indefinite confinement of sex offenders designated as “sexually violent predators” or a “sexually violent person” (SVP).[3] The Supreme Court has found indefinite confinement of sex offenders to be constitutional. It “cannot be said that the involuntary civil confinement of a limited subclass of dangerous persons is contrary to our understanding of ordered liberty.”[4] New York state’s statutory scheme under the Sex Offender Management and Treatment Act (SOMTA) manifested indefinite confinement of sex offenders as a civil process done after the criminal sentence is complete.[5] It is treated as a mental health treatment.[6] Approximately ten percent of sex offenders are eligible for SOMTA, and those who are have to go through an extensive process.[7] First, the case is referred to the Office of Mental Health to be reviewed.[8] After a psychiatric evaluation, those who are determined to suffer from a “mental abnormality” qualify for civil management are referred to the Attorney General. The Attorney General file petitions to the court for cases they choose to move forward.[9] From this point, the sex offender is subject to a jury trial and a unanimous verdict is needed to civilly confine the person.[10] If the offender is found to have a mental abnormality, they are indefinitely committed to a secure treatment facility or put under Strict and Intensive Supervision and Treatment (SIST).[11] SIST clients can petition every two years for modifications or termination of their SIST order. Those who are confined can petition at any point for discharge.[12]
Canada’s Dangerous Sex Offender (DSO) legislation manifests as part of the criminal justice system, not civil.[13] First, an application to the court is made by the attorney general.[14] From the application, there are several reasons why an offender may be declared a “dangerous offender.” They may be declared a “dangerous offender” if the offense “for which the offender has been convicted is a serious personal injury [offense],” if there is a pattern of repeated behavior that shows a failure to exercise restraint, or if there is a “pattern of persistent aggressive behavior” showing indifference by the offender.[15] The reasons can also include any behavior “that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint”[16] or if the offender has been convicted of conduct that demonstrates a failure to control their “sexual impulses and a likelihood of causing injury” through failure in the future to control their sexual impulses are exhibited.[17] It was found that offenders are “not being punished for what [they] might do. The punishment flows from the actual commission of a specific [offense]."[18] Section 761(1) of the Canadian Criminal Code states that “where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the Parole Board of Canada shall, as soon as possible after the expiration of seven years from the day on which that person was taken into custody and not later than every two years after the previous review, review the condition, history and circumstances of that person for the purpose of determining whether he or she should be granted parole under Part II … .”[19]
Even though these statutory schemes are categorized differently, their effects are the same. Indefinite confinement of sexual offenders is little known but has a profound impact on the liberty and rights of the individuals who are confined. These statutes reflect how people understand sex offenders and their approach to things that scare them. But how unknown they are also reflects the low priority placed on the treatment of sex offenders. Fear is what is causing sex offenders who have been given criminal sentences to additionally be held indefinitely after their sentences. This instinct to lock up what we fear reflects how we as a society view our ability to control ourselves and why we send people to prison. From this view, prison is not for rehabilitation and treatment, but to lock away those we fear because they are a danger that cannot be controlled.
Jessiva Novick is a Staff Editor at CICLR.
[1] The Ken and Barbie Killers: The Lost Murder Tapes (Max 2021).
[2] Law & Order: SVU (NBC television broadcast Jan. 18, 2024).
[3] Trevor Hoppe, Ilan H. Meyer, Scott De Orio, Stefan Vogler & Megan Armstrong, Civil Commitment of People Convicted of Sex Offenses in the United States, UCLA Sch. of Law Williams Inst. (Oct. 2020), https://williamsinstitute.law.ucla.edu/publications/civil-commitment-us/.
[4] Kansas v. Hendricks, 521 U.S. 346, 357 (1997) (internal citation omitted).
[5] N.Y. Mental Hyg. Law § 10 (Consol. 2023).
[6] N.Y. Mental Hyg. Law § 10.03(q) (Consol. 2023).
[7] N.Y. State Div. of Crim. Just. Services, The Sex Offender Management and Treatment Act: The First Year 3 (2008), https://www.criminaljustice.ny.gov/nsor/somta_report_april2008.pdf.
[8] Id. at 4.
[9] Id.
[10] N.Y. State Div. of Crim. Just. Services, supra note 7.
[11] New York State Off. of Mental Health, 2022 Annual Report on the Implementation of Mental Hygiene Law Article 10 4 (2022), https://omh.ny.gov/omhweb/statistics/somta-report-2022.pdf.
[12] Id. at 5.
[13] Criminal Code, R.S.C. 1985, c. C-46 § 753 (Can.).
[14] An application can also be made by the Director of Public Prosecutions. See id.
[15] See id. at § 753(1)(a)(i)-(iii) (Can.).
[16] Id. at § 753(1)(a)(iii) (Can.).
[17] Id. at § 753(b) (Can.).
[18] Id.
[19] See Criminal Code, R.S.C. 1985, c. C-46 § 761(1) (Can.).