Pedophilia, Preemptive Imprisonment, and the Ethics of Predisposition
The first two weeks of 2013 were marked by a flurry of news articles considering “the new science” of pedophilia. Alan Zarembo’s article for the Los Angeles Times focused on the increasing consensus among researchers that pedophilia is a biological predisposition similar to heterosexuality or homosexuality. Rachel Aviv’s piece for The New Yorker shed light upon the practice of ‘civil commitment’ in the US, a process by which inmates may be kept in jail past their release date if a panel decides that they are at risk of molesting a child (even if there is no evidence that they have in the past). The Guardian’s Jon Henley quoted sources suggesting that perhaps some pedophilic relationships aren’t all that harmful after all. And Rush Limbaugh chimed in comparing the ‘normalization’ of pedophilia to the historical increase in the acceptance of homosexuality, suggesting that recognizing pedophilia as a sexual orientation would be tantamount to condoning child molestation.
So what does it all mean? While most people I talked to in the wake of these stories (I include myself) were fascinated by the novel scientific evidence and the compelling profiles of self-described pedophiles presented in these articles, we all seemed to have a difficult time wrapping our minds around the ethical considerations at play. Why does it matter for our moral appraisal of pedophiles whether pedophilia is innate or acquired? Is it wrong to imprison someone for a terrible crime that they have not yet committed but are at a “high risk” of committing in the future? And if we say that we can’t “blame” pedophiles for their attraction to children because it is not their “fault” – they were “born this way” – is it problematic to condemn individuals for acting upon these (and other harmful) desires if it can be shown that poor impulse control is similarly genetically predisposed? While I don’t get around to fully answering most of these questions in the following post, my aim is to tease out the highly interrelated issues underlying these questions with the goal of working towards a framework by which the moral landscape of pedophilia can be understood.
A good place to start seems to be to try to understand the controversy over whether or not pedophilia should be defined as a sexual orientation akin to heterosexuality and homosexuality. In other words, why does it matter how we label it?
In his LA Times article, Zarembo notes:
Like many forms of sexual deviance, pedophilia once was thought to stem from psychological influences early in life. Now, many experts view it as a sexual orientation as immutable as heterosexuality or homosexuality. It is a deep-rooted predisposition — limited almost entirely to men — that becomes clear during puberty and does not change.
Like many, Zarembo implicitly links sexual orientation and immutability; pedophilia, this argument goes, ought to be seen as a sexual orientation precisely because it is unchangeable. It’s far from clear, however, how this would alter our understanding of the morality of being sexually attracted to children. Presumably, if pedophilia were based on childhood experiences, we might attempt more early childhood interventions but it wouldn’t make sense to blame pedophiles for their early environment and upbringing any more than for their biological predisposition: either way it is out of their control. I’ll talk more about these interconnected notions of control, fault, and blame at the end of this post.
Rush Limbaugh and some members of the religious right have argued that recognizing pedophilia as a sexual orientation will have the same result as the relatively recent recognition of homosexuality as a sexual orientation: it will become more acceptable to act upon those sexual desires. This logic seems obviously confused. The reason we think that homosexual intercourse is morally acceptable (and was before society “recognized” it as so) seems primarily to do with the understanding that it is a consensual act, not because it follows from an innate orientation rather than an acquired desire. Similarly, it would be strange to say that we think having sex with a child is wrong because pedophilia is an acquired rather than an innate attraction; we think it is wrong because children are not capable of consenting to sex due largely to their underdeveloped reasoning and decision-making capacities. (This at least partially seems to explain why you might have more trouble judging the actions of an adult who has sex with a 17-year-old than an adult who has sex with an 8-year-old; a 17-year-old hovers around the point at which we think he can make this decision for himself.) Having sex with a child, then, will be wrong regardless of whether the underlying attraction is deeply-rooted in the offender’s biology.
Thus recognizing as a society that certain individuals are intrinsically attracted to children need not and does not imply that we condone acting upon these desires. What it does imply is that attempting to alter such individuals’ desires is like telling a heterosexual man to stop being attracted to women; it won’t be very productive. It implies that a better method for preventing child molestation is focusing on behavior – both by getting pedophiles to empathize with the physical and psychological harm a child would experience if molested and by helping them to identify and exercise control over those types of situations in which their desires are most pronounced.
Risk and Guilt
Even among those who agree that pedophilia is best characterized as a sexual orientation, there is still much disagreement over what society ought to do about identified pedophiles who have not molested a child in any way. This was the motivating question behind Rachel Aviv’s article for The New Yorker. In it, she profiles “John,” a middle-aged American who was sentenced to four and a half years in federal prison for possession of child pornography and attempting to persuade a minor he met in an online chatroom to have sex (the minor was actually an undercover FBI agent). Although he admitted to being a pedophile, he had never molested a child.
Yet a 2006 federal statute, the Adam Walsh Child Protection and Safety Act, allows a Certification Review Panel to detain inmates indefinitely past their release dates if it determines that an inmate is “sexually dangerous” and seriously at risk of molesting a child if released. In John’s case, as has apparently become common, this decision was made based on the testimony of a psychologist who used an actuarial assessment instrument called the Static-99. She determined that John was in the “high risk” category based on the 10-question instrument, which includes risk factors like whether he had “ever lived with [a] lover for at least two years,” whether he had any non-sexual violent convictions, the number of both charges and convictions of prior sex offences, and certain characteristics of victims.
Deeming him a significant threat if released, the Panel decided to hold John past his release date. It wasn’t until four years later that he was able to challenge this decision in trial. At this trial, the judge confirmed the Panel’s decision and sentenced John to “therapeutic confinement” until a time at which he is no longer considered “sexually dangerous.” Again, this judgment relied heavily upon the testimony of the prosecution’s forensic psychologist that John had “roughly a 24.7-per-cent chance of reoffending within five years” using her scaling of the Static-99.
There appear to be two separate questions or concerns one might have after reading this account. First, how accurate are actuarial instruments like the Static-99? In other words, how likely is it on average that individuals given a 40 percent chance of reoffending will reoffend, for example, 38-42 percent of the time? Second, even if we are convinced that the Static-99 is reliable enough to justify the serious consideration of its estimates, is being at a “higher risk” of molesting a child than the average citizen ever sufficient evidence to preemptively imprison someone for a crime he has not yet committed? We have a strong belief that individuals ought to be considered innocent until proven guilty – proven guilty beyond a reasonable doubt in criminal cases – which is perhaps why John’s case is so shocking to many of Aviv’s readers.
But maybe we just think that a 1 in 4 chance of reoffending sets the bar too low for preemptive imprisonment. What if we could predict – yes or no – whether an individual would molest a child and be accurate 99 percent of the time? Would we be justified in imprisoning these individuals to prevent them from committing this crime? Or would that tenth of a percent constitute reasonable doubt that any given individual will commit the crime? Can the standard of reasonable doubt even apply when the crime in question has not yet been committed?
These questions might feel familiar if you’ve ever seen Steven Spielberg’s Minority Report, a sci-fi film in which Tom Cruise plays an agent of the ‘PreCrime Department,’ which prevents crime using the premonitions of psychic ‘precogs.’ In the Minority Report scenario, the justification for arresting a child molester-to-be seems to lie on the understanding that the precogs’ premonitions are completely infallible. And this seems right; if we could say with 100 percent accuracy that someone would commit a terrible crime, we would be justified in imprisoning him. But the gap, however small, between 99 percent and 100 percent seems to be precisely the problem. Determinists might think that in the future or at least hypothetically we could identify criminals with perfect accuracy; we just don’t have enough information to do it now. But those who believe in free will would reject the possibility of 100 percent accuracy altogether on the belief that the sum total of an individual’s genes, upbringing, and environment and prior states of affairs cannot infallibly predict what he will do in any given situation. And that seems to be the crux of the problem: if there is a chance, however small, that an inmate will choose to “do the right thing” if we release him after he has served his time for all prior and actual offences, it seems a terrible injustice to imprison him for years more.
Predisposition and Impulse Control
In this final section, I’d like to return as promised to the earlier point concerning the moral implications of recognizing pedophilia as an immutable sexual orientation. In an attempt to convince self-identified pedophiles to seek help controlling their behavior, 2005 advertisements in Germany read, “You are not guilty because of your sexual desire, but you are responsible for your sexual behavior.” Similarly, James Cantor, the oft-cited researcher in recent news stories whose work suggests the biological component of pedophilia, has said, “Not being able to choose your sexual interests doesn’t mean you can’t choose what you do.” And perhaps the strongest take-away from this host of articles is that we cannot equate “pedophile” with “child molester.” All these claims suggest that just because individuals like John are attracted to children or have a history of possessing child pornography does not mean that they will actually act upon these desires.
Contained within the first half of this type of argument is the occasionally explicit but almost always implicit suggestion that because pedophiles don’t “choose” to be attracted to children, because they are “born that way,” or because “it’s in their genes,” we ought not blame or fault them for what most people consider to be an appalling desire. This strikes many people as right – we can’t blame people for what they can’t control. The second half of the argument seems to be the other side of that equation – we can blame people for what they can control. Although pedophiles can’t choose their desires, they can choose not to act upon them and it is this behavior for which we can hold them “responsible.”
But what if future studies show that impulse control has a more significant genetic component than we currently think it does? What if some individuals have a significantly greater difficulty suppressing behavior based upon harmful desires? Such individuals did not “choose” to have below average impulse control. Some might even express overwhelming grief at not being better able to control their behavior; they might spend years attempting to master it to no avail. Do we still “blame” them, is it still their “fault,” are they still “guilty,” if they fail to suppress their desires and instead act upon them? (Note that this impulse control problem applies to all desires that would have harmful consequence if acted upon; it has no special relationship to pedophilia.)
We would, it seems, be justified in imprisoning or institutionalizing them for such an act to prevent them from harming others. But the other justifications for punishment – retribution, rehabilitation, and deterrence – seem not to apply very well. By definition, a prison sentence couldn’t deter an individual from doing something he can’t stop himself from doing and rehabilitation could not change an immutable characteristic. Retribution would be even more problematically incoherent. We believe that a man must be able to do what he ought to do; we could not condemn a man for doing something that we believe he cannot choose not to do.
This of course returns us to the free will/determinism debate. Perhaps our entire understanding of crime and justice rests upon a belief that when we do bad things we could always have chosen to do otherwise. Thus this hypothetical might be the point at which arguments about fairness cease to make sense in our current moral framework: some people will do bad things because they were unluckily born less able to control their impulses than others, but this is simply what we mean when we talk about “fault” and “responsibility.”
That took us quite far from our original topic of pedophilia. But hopefully it suggests the implications of this post beyond the issue of pedophilia. Research will continue to identify new genetic components of human qualities and traits and our actuarial instruments will become better at predicting human behavior. Now is a good time to begin thinking about how such advancements will fit within our everyday systems of criminal justice and common morality – and whether and which discoveries would require serious adjustments to the framework of either of these two systems.
 Alan Zarembo, “Many researchers taking a different view of pedophilia,” Los Angeles Times, 14 January 2013, http://articles.latimes.com/2013/jan/14/local/la-me-pedophiles-20130115.
 See psychotherapist Dawn Horowitz-Person’s description of her “12-step-like” therapy in Cord Jefferson, “Born This Way: Sympathy and Science for Those Who Want to Have Sex with Children,” Gawker, 7 September 2012, http://gawker.com/5941037.
 Rachel Aviv, “The Science of Sex Abuse,” Annals of Crime, The New Yorker, 14 January 2013, http://www.newyorker.com/reporting/2013/01/14/130114fa_fact_aviv.
 I can feel my college stats professor cringing on the other side of the Atlantic – please chime in and correct me where I’ve misconstrued statistics in this section!