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They're Planting Stories in the Press: the Impact of Media Distortions On digitalcommons.nyls.edu Faculty Scholarship Articles & Chapters 2013 They’re Planting Stories In the Press: The mpI act of Media Distortions on Sex Offender Law and Policy Heather Ellis Cucolo New York Law School, [email protected] Michael L. Perlin New York Law School, [email protected] Follow this and additional works at: http://digitalcommons.nyls.edu/fac_articles_chapters Part of the Criminal Procedure Commons, Disability Law Commons, Jurisprudence Commons, Law and Psychology Commons, Law Enforcement and Corrections Commons, Medical Jurisprudence Commons, and the Sexuality and the Law Commons Recommended Citation Cucolo, Heather Ellis and Perlin, Michael L., "They’re Planting Stories In the Press: The mpI act of Media Distortions on Sex Offender Law and Policy" (2013). Articles & Chapters. 715. http://digitalcommons.nyls.edu/fac_articles_chapters/715 This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. "THEY'RE PLANTING STORIES IN THE PRESS": THE IMPACT OF MEDIA DISTORTIONS ON SEX OFFENDER LAW AND POLICY Heather Ellis Cucolo* and Michael L. Perlint Introduction Individuals classified as sexual predators are the pariahs of the community. Sex offenders are arguably the most despised members of our society and therefore warrant our harshest condemnation. Twenty individual states and the federal government have enacted laws confining individuals who have been adjudicated as "sexually violent predators" to civil commitment facilities post incarceration and/or conviction.2 Additionally, in many jurisdictions, offenders who are returned to the community are restricted and monitored under community notification, registration and residency limitations.3 Targeting, punishing, and ostracizing these individuals has become an obsession in society, clearly evidenced in the constant push to enact even more restrictive legislation that breaches the boundaries of constitutional protections. Adjunct Professor at New York Law School Professor and Director, International Mental Disability Law Reform Project, and Online Mental Disability Law Program at New York Law School. See generally Sarah Geraghty, Challenging the Banishment ofRegistered Sex Offenders from the State of Georgia: A Practitioner'sPerspective, 42 HARV. C.R.-C.L. L. REv. 513, 514 (2007); see also, Bruce J. Winick, Sex Offender Law in the 1990's: A Therapeutic JurisprudenceAnalysis, 4 PSYCHOL. PUB. POL'Y & L. 505, 506 (1998) (discussing that individuals who commit sex offenses against children are probably the most hated group in our society). 2 See generally Catherine L. Carpenter & Amy E. Beverlin, The Evolution of Unconstitutionalityin Sex Offender RegistrationLaws, 63 HASTINGS L. J. 1071 (2012). Id. at 1078. Michele L. Earl-Hubbard, The Child Sex Offender RegistrationLaws: The Punishment, Liberty Deprivation, and UnintendedResults Associated with the Scarlet Letter Laws of the 1990s, 90 NW. U. L. REV. 788, 853-54 (1996); David A. Singleton, Sex Offender Residency Statutes and the Culture of Fear: The Casefor More Meaningful Rational Basis Review of Fear-DrivenPublic Safety Laws, 3 U. ST. THOMAS L. J. 600, 628 (2006); See Corey Rayburn Yung, One of These Laws Is Not Like the Others: Why the FederalSex Offender Registrationand Notification Act Raises New ConstitutionalQuestions, 46 HARV. J. ON LEGIS. 369, 370-71 (2009) (contending that the federal Sex Offender Registration and Notification Act provisions must be amended to meet constitutional muster). 186 UNIVERSITY OF DENVER CRIMINAL LAW REVIEW [Vol. 3 The advancement of technology and mass media communication have spawned a constant influx of information about sexual predators. News headlines and Internet webpages are dedicated to reporting on and highlighting sexual crimes and their infamous perpetrators. There is little disputing that the newest surge6 in legal attention and efforts to contain sexual predators stems from the mass dissemination of sexual offender media stories available to the general public.7 Thus, we cannot discuss our national obsession with sexual offenses and offenders without considering how the role of the media has framed our conceptualizations of offenders and influenced resulting legal decisions and legislation." The public perception of what constitutes a "sex offender" is undoubtedly linked to the media's portrayal of these types of heinous crimes.9 The media's attention to high profile, violent sexual offenses has been shown to elicit a panic and fear of rampant sexual violence within our communities. 10 This, in turn, places extreme public pressure on legislators to enact more repressive legislation and on judges to interpret such laws in ways that ensure lengthier periods of incarceration for offenders. The media's portrayal of a "largely ineffective" criminal justice system heightens fear; 12 fictionalized portrayals of crime on television dramas may lead viewers to believe that "all offenders are How We Began and the Needfor Transition, Jacob Wetterling Resource Ctr., http://www.jwrc.org/WhoWeAre/History/tabid/1 28/Default.aspx; About John Walsh, America's Most Wanted, http://www.amw.com/aboutamw/john walsh.cfm. 6 Carpenter & Beverlin, supra note 2, at 1078 ("The ensuing years [post the enactment of the Adam Walsh Child Protection and Safety Act] have been marked by a dizzying array of increased registration and community notification requirements, the emergence of harshening residency restrictions, and the elimination of individuated risk assessment."); see infra text accompanying notes 164-193, 376-411. Kristen M. Zgoba, Spin Doctors and Moral Crusaders: The Moral PanicBehind Child Safety Legislation, 17 CRIM. JUST. STUD.385, 385 (2004) ("The media frenzy surrounding these publicized cases has created a 'fear factor' among parents and caregivers, begging the question as to whether the incidence of child abduction and molestation has increased or whether the nation's heightened sensitivity is a result of increased media reporting"). ' On the way that the media frames crime stories in general, see SHANTO IYENGAR, Is ANYONE RESPONSIBLE? How TELEVISION FRAMES POLITICAL ISSUES 26-31 (1991). 9 Clive Emsley, Victorian Crime, HISTORY TODAY, (1998), available at http://www.historytoday.com/clive- emsley/victorian-crime (arguing that nineteenth-century perceptions owed more to media-generated panic than to criminal realities). "o Lori Dorfman & Vincent Schiraldi, OffBalance: Youth, Race & Crime in the News, 4 (2001), available at http://wwwjusticepolicy.org/research/2060 (explaining that three-quarters of the public form their opinions about crime based on news reports-more than three times the number of people who form their opinions based on personal experience); Jill S. Levenson et. al., Public PerceptionsAbout Sex Offenders and Community Protection Policies, 7 ANALYSES Soc. ISSUES & PUB. POL'Y 1, 2 (2007) (citing L. C. Hirning, Indecent Exposure and Other Sex Offenses, 7 J. CLIN. PSYCHOPATHOLOGY & PSYCHOTHERAPY, 105 (1945) ( "As early as 1945, academic scholars were commenting on the reactions of the public to sex offenders: '. .there are periodic so-called sex crime waves often preceded by one or more serious sex offenses which have received wide notoriety in the newspapers. Every sex offender is looked upon as a potential murderer. Emotions run high. There are meetings and conferences; recommendations are made .... Meanwhile, sex offenses continue to occur.'"); see also, Kate Stone Lombardi, Fearsof Kidnapping Spur Effort on Education, N.Y. TIMES, March 13, 1994 (reporting on an "educational" video "Street Smart Kids" which shows headlines: "' 10-Year-Old Girl Abducted and Sexually Molested' and 'll-Year-Old Girl Strangled.' There ensues a scene of an anguished father holding a news conference and pleading for his son's safe return, which is followed by a headline of the child's fate: 'Boy's Severed Head Found in Creek"'). " Levenson, supra note 10, at 2 ('Sex offenders and sex crimes incite a great deal of fear among the general public and as a result, lawmakers have passed a variety of social policies designed to protect community members from sexual victimization"). 12 Kenneth Dowler, Media Consumption and Public Attitudes Toward Crime and Justice: The Relationship Between Fear of Crime, Punitive Attitudes, And Perceived Police Effectiveness, 10 J. CRIM. JUST. & POPULAR CULTURE 109, 120 (2003). 2013] "THEY'RE PLANTING STORIES IN THE PRESS" 187 'monsters' to be feared."13 The media, in short, shapes and produces the reality of crime,14 as it influences "factual perceptions of the world." Our desire to punish, treat and categorize this "abhorrent" population is not a new phenomenon.16 The notion of a "sex offender" or someone who engages in immoral sexual acts or desires, has been around for centuries.17 The fear and hatred of individuals 18 who have committed crimes of sexual violence has existed well before the 2 0 th century and well before our current, infiltrative, grand "mass-media" dissemination of information. 19 Our innate disgust at these types of offenses and our emotionally-charged responses appear to be quite natural, given societies' morals, ethics and codes of decency; yet, legislative actions cannot and should not be based solely (or even predominantly) on distorted media depictions (of both offenses and perpetrators). 20 Prior to the most recent spate of legislative enactments, the sexual
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