Research on sex offender laws and their effects on people and society
Discerning Use of Force in Sexual Offenses
by Marshall Burns, Ph.D.
Additional background for the SOLR report, How Children are Harmed Analysis is presented of the definitions of sex offenses used in one of the US governments primary sources of crime statistics. Several critical problems are described and efforts to obtain explanations from the agency responsible for managing the data are described.
Preparation of the SOLR report, Criminalizing Childs Play, required research on the incidence and characteristics of prosecuted sexual activity between juveniles. There is a good deal of literature on this subject, and one of the predominant sources of data referred to in that literature is the National Incident-Based Reporting System (NIBRS)1 of the US Federal Bureau of Investigation. For example, the National Center for Juvenile Justice, a branch of the US Department of Justice, published Sexual Assault of Young Children in 2000,2 which presented NIBRS data on four categories of forcible sexual assault. The 2006 edition of Juvenile Offenders and Victims,3 issued by the same agency, also uses the NIBRS data to compare incidence of forcible and statutory rape committed both by and upon juveniles.
The definitions of the offenses reported in the NIBRS are given in the systems Codebook,4 in the final section starting on page 174. Categories 19 and 20 give the definitions of sexual offenses as used in the NIBRS data:
Most of the categories also include notes with guidance on how to classify specific offenses. However, even with these notes, there are substantial problems with the use of these definitions.
Rape of males specified but undefined. The note for forcible rape (offense category 19-A) says that it includes the forcible rape of both males and females. But forcible sodomy is defined as either oral or anal intercourse, so just what is meant by rape of a male that is not sodomy? Furthermore, the note for forcible sodomy (19-B) says, "If a victim is both raped and sodomized in one incident, then both offenses should be reported." One presumes that for a female victim this would mean an incident that includes both vaginal intercourse and either oral or anal penetration. But it remains difficult to understand what rape of a male would mean that is not sodomy under these definitions.
Unclear classification of nonforced intercourse with juvenile. The note for forcible rape (19-A) also says, If no force was used and the victim was under the statutory age of consent, the crime should be classified as statutory rape. However, the note for statutory rape (20-B) says, If the victim was incapable of giving consent because of his/her youth , the offense should be classified as forcible rape, not statutory rape. At first, these statements seem to defy classification of vaginal, oral, or anal intercourse with a juvenile that did not involve force, including cases where the victim was the penetrative partner. But note that the instruction for 20-B says because of his/her youth, not because of his/her age. This allows the interpretation that it is statutory rape if the victim was a juvenile mature enough to consent and that it is forcible rape if the victim was a juvenile who was not that mature.
Police discretion recommended for ten-year-olds. The note for forcible rape (19-A) goes on to state,
The ability of the victim to give consent must be a professional determination by the law enforcement agency. The age of the victim, of course, plays a critical role in this determination. Individuals do not mature mentally at the same rate. Certainly, no 4-year-old is capable of consenting, whereas victims aged 10 or 12 may need to be assessed within the specific circumstances.
This statement is astonishing in a document published by the FBI, and it seems to support the second interpretation offered above for distinguishing forcible and statutory rape. This statement goes against the principle of the age of sexual consent. We have here a situation where police officers are being called upon by an official government law-enforcement document to assess the ability of a juvenile, even as young as ten, to consent to a sexual act. This is an ability which is, under the law, impossible. Nonetheless, police agencies are being asked to distinguish between forcible and statutory rape on the basis of such an assessment.
Fondling is always forced. Nonforcible sex offenses (category 20) include only incest and statutory rape, both of which are defined to apply only to sexual intercourse. From the definitions in category 19, intercourse is apparently intended to include either vaginal, oral, or anal penetration, and specifically excludes fondling. Thus, while the instructions are ambiguous as to how to classify nonforced intercourse, in the case of nonforced fondling (such as consensual masturbation of the victim), there is nowhere to put it but in the forcible category.
Note the ironic contrast in the treatment of intercourse and fondling. Police agencies are asked to decide if a particular juvenile was mature enough to consent to vaginal, oral, or anal intercourse, and if so the offense is to be classified as nonforcible. But no such discretion is allowed for fondling, which can only be classed as forcible, no matter how mature and approving the victim.Effects of these problems
There are two results of these definitional problems. First, when police agencies submit their reports that provide the data for the NIBRS, it must be difficult for them to know how to classify offenses they have handled. Each police department probably deals with the ambiguities by classifying sexual activity with juveniles in whatever arbitrary fashion they individually choose, and there would not seem to be any check on the accuracy or uniformity of the classification used for these cases. This then causes the second result, which is that the data in the NIBRS are useless for any reasonable analysis of the use of force in sexual offenses. Under these circumstances, any breakdown according to use of force is essentially meaningless.
We can assume that incidents involving force are classified as such. But incidents in which no force was used may end up in either the forcible or nonforcible category, depending on how the rules of classification are interpreted by the police agency. This means that the incidence of force indicated by NIBRS statistics sets a maximum on what the actual incidence could be, whereas it could actually be much less.
Cases of fondling in particular may give rise to the worst statistical errors because studies5 indicate that fondling is the highest-incidence type of prosecuted sexual activity with juveniles. Since there is no place to classify nonforcible fondling, it probably gets classed under either forcible fondling or statutory rape or, if done by a sibling or parent, incest. The data for the largest number of cases are therefore scattered among these three separate categories of offenses without any way of discerning the actual nature of the crimes and whether force was used in them or not.
The NIBRS is managed for the FBI by the National Archive of Criminal Justice Data (NACJD). An inquiry was sent in January 2008 to Christopher Maxwell, director of the archive, asking who is responsible for managing the crime definitions in the NIBRS codebook, to whom a question about a perceived problem in them may be addressed. Maxwell responded that it was Tom Zelenock, the archives project manager for the Bureau of Justice Statistics.
An initial inquiry of Mr. Zelenock asked if he was the right person to whom to address a question about a complex problem in the wording of a subset of the NIBRS crime definitions, or if it should be directed to someone else. Zelenock requested that the question be addressed to him. Upon receiving an outline of the above problems, he replied that the definitions are taken from FBI technical documentation and suggested doing a search for NIBRS on the FBI website. This search he recommended brought up 171 documents. When a reply to him indicated the results of the search and asked for a referral to someone in the FBI or elsewhere or a reference to the technical documentation he had mentioned earlier, he responded with the phone number for the public relations office at the FBI.
The inquiry sent to Mr. Zelenock at the NACJD asked if the above assessment of the NIBRS definitions is mistaken, such as if there is an official manual of instructions for police agencies that clarifies how to classify these crimes. It asked if he could provide a reference to such a document, or to any other explanation of how sexual offense cases get classified in order to allow analysis of the data. It also asked, if there is nothing like that, if other researchers have raised these issues before and if there has been any discussion of clarifying the definitions. And it asked again if there is someone at the FBI or the Bureau of Justice Statistics who is more directly responsible for maintenance of these definitions to whom the inquiry should be addressed. None of these questions was addressed in any of Mr. Zelenocks replies.
Adolescent sex offenders by Glen E. Davis and Harold Leitenberg, Psychological Bulletin, American Psychological Association, May 1987, page 418
Overview of Child Sexual Abuse by Jon R. Conte, Chapter 13 of Review of Psychiatry: Section III: Sexual Abuse of Children and Adolescents edited by Elissa P. Benedek, American Psychiatric Press, 1991 (Google Books), 1991 (Google Books), table of sexual abuse behaviors on page 287
This report posted on January 28, 2009.
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