International Journal of

Offender Therapy and

Comparative Criminology
Volume 52 Number 5
October 2008 499-519
The Exclusion–Inclusion © 2008 Sage Publications
10.1177/0306624X07308108
Spectrum in State and http://ijo.sagepub.com
hosted at
Community Response to Sex http://online.sagepub.com

Offenders in Anglo-American
and European Jurisdictions
Michael Petrunik
University of Ottawa, Ontario, Canada
Linda Deutschmann
Thompson Rivers University, Kamloops, British Columbia, Canada

Continental European and Anglo-American jurisdictions differ with regard to criminal

justice and community responses to sex offenders on an exclusion–inclusion spectrum
ranging from community protection measures on one end to therapeutic programs in
the middle and restorative justice measures on the other end. In the United States,
populist pressure has resulted in a community protection approach exemplified by sex
offender registration, community notification, and civil commitment of violent sexual
predators. Although the United Kingdom and Canada have followed, albeit more
cautiously, the American trend to adopt exclusionist community protection measures,
these countries have significant community-based restorative justice initiatives, such as
Circles of Support and Accountability. Although sex offender crises have recently
occurred in continental Europe, a long-standing tradition of the medicalization of
deviance, along with the existence of social structural buffers against the influence of
victim-driven populist penal movements, has thus far limited the spread of formal
community protection responses.

Keywords: sex offenders; criminal justice policy

T he social construction of sex offenders as highly dangerous, mentally abnormal,

and morally contaminated persons (Petrunik, 2003, 2005; Petrunik & Weisman,
2005) and the low community tolerance for any recidivism whatsoever pose chal-
lenges for the integration of persons convicted of sex offences into the community
(Maletzky, 1998; Petrunik, 2002; Roach, 1999; Wnuk, 2006). Yet sex offences vary

Authors’ Note: The authors thank Lloyd Klein for his help in developing the idea for this article and his sup-
port in presenting portions of it at various academic conferences. All errors and omissions are the sole respon-
sibility of the two authors. Address correspondence to Michael Petrunik, PhD, Criminology Department,
University of Ottawa, Ottawa, Ontario, Canada K1N 6N5; e-mail: petrunikmg@telecomottawa.net.

499
500 International Journal of Offender Therapy and Comparative Criminology

in their seriousness, and those who commit them vary greatly in the risk that they pose
to society. What is defined as sexual offence varies across jurisdictions and ranges from
indecent exposure to the possession and trafficking of pornographic images to rape
(McAlinden, 2007; West, 2000). Whereas indecent exposure is not a crime in Norway
or Denmark, it is in English-speaking countries, and when committed repeatedly, it is
considered a form of mental disorder as categorized in Section 302.4 (the paraphilia of
exhibitionism) of the Diagnostic and Statistical Manual of Mental Disorders
(American Psychiatric Association, 2000, fourth edition, text revision). There has been
a trend, particularly in Anglo-American societies, to widen social control nets by
creating new kinds of sexual offences (sexual exploitation, invitation to sexual touching,
child pornography, Internet luring) in response to threats against children (Jenkins,
1998, 2001; Petrunik, 1994, 2002, 2003, 2005). Interestingly, McAlinden (2007) notes
that continental European countries—particularly, dominantly Catholic ones—were
slower to “recognize sexual abuse as a moral, legal, and social problem” (p. 17) than
were Britain, the United States, and Canada. This trend has only recently been chang-
ing, with high-profile incidents in Belgium (Jenkins, 2001) and France (Sage, 2007)
dominating public discourse.
Despite the diversity of sex offences and persons who commit such offences, the
generic term sex offender tends to be typified by the worst cases: the homicidal lust
murderer of young children and the serial predator (Jenkins, 2001; McAlinden,
2007). Some sex offenders—notably, extrafamilial offenders with male victims who
meet clinical criteria for paraphilias, such as pedophilia or exhibitionism—do offend
with high frequency over long periods, even after detection, arrest, and conviction
(Hanson, 2003; Hanson & Morton-Bourgon, 2004; Lafond & Winick, 2004; Langevin
et al., 2004; Lösel & Schmucker, 2005; Motiuk & Belcourt, 1996; Petrunik, 2002;
West, 2000). The extent of this finding is still under debate, despite great improve-
ments in tracking and measuring such events (Rice & Harris, 2006; Webster, Gartner,
& Doob, 2006).
Sex offenders, as a general category, vary greatly in terms of volume of offending,
victim age and gender, relationship with victims, harm inflicted, factors motivating
offending, duration of time at high risk to reoffend, and responsivity to treatment. Despite
popular fears of stranger–danger, children are at lower statistical risk of being the
victims of sexual offending on the part of strangers than on the part of relatives or
acquaintances. The construction of the demonized sex offender, however, has led to
a dispersion of surveillance and other forms of control in communities (Donzelot,
1991; Garland, 2001).
Widespread amorphous anxieties related to the political economy of late modern
societies lead to considerations not only of causes but also of blame (Goode, 2001).
Under risk society conditions (Beck, 1992, 1997, 1999), security becomes a highly
desired commodity. Folk devils, moral panics, and scapegoating are recognized in
deviancy theory as a means by which state and community exercise social control
 Petrunik, Deutschmann / The Exclusion–Inclusion Spectrum in Response to Sex Offenders 501

(Cayley, 2001; Jenkins, 1998). A large segment of the public will support surveillance
and reporting mechanisms in the name of security when their anxiety is linked to
perceptions of crime, disorder, and the dangerous classes. Ironically, many crime
control initiatives may heighten fear of crime and a sense of insecurity.
A key factor in the contemporary demonization of sex offenders involves an increased
awareness of sexual offending, both globally and locally, owing to greater public educa-
tion, new legislation, and greater encouragement and increased opportunities to report
sexual victimization. Increased awareness of sexual offending can be related to a spec-
trum of initiatives, including school education programs (“good touch, bad touch”),
screening of employees and volunteers who are working with vulnerable populations,
and the surveillance of known offenders through state-mandated community notifica-
tion and tracking systems. These systems operate on two levels: first, a panoptic level,
where the few (i.e, the state agents) monitor and track the many, that is, the offenders
who are recorded in their databases; second, a synoptic level, where the many (i.e., the
community members) monitor the few, that is, those sex offenders who are revealed by
community notification provisions to be in the community’s midst (Petrunik, 2002). In
addition, sexual exploitation of children has been exposed and criminalized through
international cooperation in policing, human rights protocols, and humanitarian aid
(Alexander, Meuwese, & Wolthuis, 2000).
Whereas information campaigns and the creation of new legislation suggest that
offenders are less able to count on the silence of children and the naiveté of their
caretakers, greater community awareness of the high incidence and pervasiveness of
sexual exploitation as revealed by research, education, and surveillance initiatives
has had negative consequences as well as positive ones.
One major negative outcome of greater awareness and surveillance has been the
increased risk anxiety and confusion, vulnerability, and dependency in children owing
to the hypervigilance demonstrated by parents and educators who imagine pedophiles
lurking wherever their children go. Ironically, such overprotective individuals find that
they, along with other caretakers, teachers, and coaches, may themselves become
objects of suspicion (Furedi, 1997; Lianos & Douglas, 2000; Scott, Jackson, & Beckett-
Milburn, 1998).
A second significant outcome has been the periodic outbreak of false accusations
that, because of the aura of innocence surrounding alleged victims and the aura of
monstrousness around alleged perpetrators, irreversibly damage the lives of those
accused. The spate of accusations regarding day care satanic sex rings in the early
1980s, particularly in small communities with strong Christian fundamentalist
components, can be linked to anxieties associated with the replacement of parental
care by professional caregivers and with the pervasive cultural threats to traditional
forms of religion (Butler, Fukurai, Dimitrius, & Krooth, 2001; Cook, 2004; Eberle
& Eberle, 1993; Hood, 2001; Jenkins, 2001; Ofshe & Watters, 1994; Ross, 2003;
Victor, 1993).
502 International Journal of Offender Therapy and Comparative Criminology

Sex Offending Against Children and Community Response:

North America and Europe Compared

It is unlikely that Europeans accept child molesting any more than North Americans
do, but the former are more likely to consider child molesters to be sick–curable than
evil–incurable. In popular culture, an early example of this attitude was illustrated by
German director Fritz Lang’s influential 1930s film M, about a homicidal child moles-
ter, which urged understanding, sympathy, and treatment by medical experts rather
than vigilantism by the community and punishment by the state.
This focus on the treatment of sexual deviants can be traced to a longstanding
approach to the medicalization of deviance, originating with the positivism of the
Italian school of criminal anthropology, the rise of legal psychiatry, the philosophy
of social defense (Ancel, 1965; Buruma, 2004; Foucault, 1978; Horn, 2003; Petrunik,
1994), and the development of psycho- and sociotherapeutic approaches—originally
based on various forms of psychodynamic psychology and more recently on behav-
ioral psychology (Frenken, 1999; Lösel, 1996). A result was that many sex offenders
were subject not to retributive sentences but to a variety of forms of internment
combining treatment with incapacitation (Petrunik, 1994).
In parts of continental Europe—most notably, the Nordic, Baltic, and Germanic
countries—surgical castration was popular in the first half of the 20th century (Hansen
& Lykke, 1997; Harrison, 2007; Russell, 1997) but, for the most part, has been replaced
by chemical castration and the use of intensive psychotherapy and behavioral therapies
(Hansen & Lykke, 1997; Lösel, 1996; Lösel & Schmucker, 2005; McAlinden, 2007;
Stürup, 1968; Wille & Beier, 1989). The “success” of castration in Europe (Heim &
Hirsch, 1979; Meyer & Cole, 1997) has been cited as a factor in the adoption of manda-
tory chemical castration approaches in the United States (Berlin 2005; Jenkins, 2001).
Hansall and Damour (2005) summarized studies from several Western European
countries that show recidivism rates ranging from as high as 80% among sex offenders
who did not undergo castration to under 5% among those who did.
Parts of Europe have had a long tradition of accepting child nudity, with images
of nude children common in erotic literature and videorecordings (Jenkins, 1998,
2001). Some critics, however, have argued that the subtexts of sexualized images of
young children as portrayed through advertising and pageants in North America
(although often less explicit than images publicly available in Europe) may be more
problematic in their suggestion of a peculiar combination of innocence, desire, and
vulnerability. Kincaid (1998) contends that America is a society that encourages a
widespread prurient interest in immature children through sexually suggestive pos-
ing, makeup, and clothing. Many adult men who have never offended have some
sexual response to pictures of young children, even though not as extreme as that of
offenders. “Awareness of personal vulnerability could be one reason for expressions
of extreme antipathy towards overt paedophiles” (West, 2000, p. 411; see also, Bell,
2002; Evans, 2003).
 Petrunik, Deutschmann / The Exclusion–Inclusion Spectrum in Response to Sex Offenders 503

Another set of converging streams feeding public response to sex offenders is

found in the various victim-oriented social movements of the 1970s, focusing on the
promotion and protection of the rights of racial minorities, women, gays, and crime
victims. Whereas the women’s movement generally played a role in heightening
awareness of the right to bodily integrity and the responsibility of society to ensure
safety for its weaker members, the radical wing of this movement’s depiction of sexual
relations involving differences in power and status as transgression promoted legis-
lation on sexual assault, pornography, and sexual exploitation of minors.
The victims movement has been a more powerful force in America than in Europe.
In America, political activity in the form of penal populism (Roberts, Stalans,
Indermaur, & Hough, 2003) is culturally understood as a valid way of managing
victim anger and grief (Anderson, 1995; Boerner, 1992; Scheingold, Pershing, &
Olson, 1994). In the United States, victims advocates are not just tokens on political
panels or in the halls of power; they wield genuine power along the entire political
spectrum. Political leaders and bureaucratic authorities feel compelled to take victims
issues seriously because all parties involved see them as a matter of respecting the
social contract between the state and members of society. So central are victims
issues that for politicians to be seen as not fully supporting such issues is to risk
being voted out of office (Anderson, 1995; Boerner, 1992).
Another factor is the impact of the belief that the public as a whole is punitive
toward all sex offenders. Public meetings on criminal justice matters tend to bring
out citizens who have extreme views when there is a missing child or when there is
controversy over the placement of a halfway house that might house sex offenders.
Indeed, some research shows that politicians who propose radical legislative initia-
tives on the assumption that they represent the majority of their constituents’ wishes
may be reflecting the views of a vocal minority (Cullen, Fisher, & Applegate, 2000;
Roberts et al., 2003; Zamble & Kalm, 1990). As such, vocal minorities wield more
power in the United States than they do in either Canada or Europe.
The mass media’s role in transnationally carrying the message of the danger
posed by sex offenders—what Karstedt (2006) calls a globalized “emotionalization
of law” (p. 229)—has been enhanced, particularly in advanced Western nations, by
the dramatic salience of the images that they present and the emotional nature of
their appeal. Many of the populist-inspired laws against sex offenders have been
named after victims whose stories have been told in the mass media: Megan’s law in
the United States, Christopher’s law in Canada, Natalie’s law in Germany. The mass
media do not create these laws or the concerns underlying them, but they do magnify
their impact.
There is also the impact of what Beck (1992, 1997, 1999) calls risk society. The
late modern period is one in which society no longer trusts experts unless what they
say jibes with the anxieties that it experiences and the images that it has formed from
media representations (Best, 1990; Pickering, 2001). In the place of trust is anxiety
about people and places perceived to be undesirably different or simply unscreened
504 International Journal of Offender Therapy and Comparative Criminology

and unregulated (Holloway & Jefferson, 2003). The increasing use of actuarial risk
assessments (Austen, 2006) perversely feeds into the stigmatization of all persons in the
category of sex offender (even those who earned the designation by having sex as a
teenager with someone slightly younger who was below the age of consent). Exclusionist
sentiment makes it increasingly difficult to find any place where a person suspected of
sex offending can live in peace, much less begin a process of rehabilitation.
Another concern is the tendency of communities to become inward looking and
defensive in their attempt to protect themselves from demonized offenders such as
child molesters. Some observers point to the disappearance of “real” communities,
which are able to organically regulate themselves. In their place, there has been the
rise of “counterfeit” communities, with gates and surveillance mechanisms restricting
and monitoring strangers in the name of security (Freie, 1998).
Yet another serious concern is the loss of faith in democratic institutions. Examples
of vigilantism against people thought to be sex offenders come from all Western
countries. When people take the law into their own hands through vigilantism, it is
an overt expression of their lack of faith in democratic institutions. When they take
these actions in the height of aroused emotion, they make mistakes. In the following
three examples, all from England, leaks from the police to the media were followed
by instances of offender misidentification: In 1977 a 14-year-old girl was killed
when vigilantes firebombed a home incorrectly believed to be that of a sex offender
(Hilpern, 1997); in 2000, five innocent families were forced to flee their homes
because of mob violence targeting pedophiles on a housing estate (Bell, 2002;
Thorpe, 2000); in another case, vigilantes killed the brain-damaged brother of a man
suspected of sex offences (Herbert, 2005).
In addition to vigilantism, there have been incidents of public shunning, pickets
and vigils, and evictions. The punitive nature of disintegrative shaming, as opposed to
reintegrative (Braithwaite, 1989; McAlinden, 2007), has driven some sex offenders
underground. In California and other states, a large percentage of those who should
be registered are unaccounted for (Matravers, 2003). In Canada, sex offender Bobby
Oatway, a parolee residing at a halfway house, was subject to months of picketing
by community groups, as well as pressure from fellow residents who believed that
Oatway’s high profile was drawing unwanted attention to them. Oatway eventually
returned voluntarily to prison to serve out his entire sentence (Kastner, 1996).
The United States has progressed furthest on the two interrelated spectrums of
penal punitiveness and incapacitation and surveillance (based on the actuarial new
penology), despite some strong restorative justice initiatives. England has been taking
a similar route—using, for example, “indefinite public protection” legislation and
multi-agency public protection arrangements—but without an emphasis on formal
community notification (Ford, 2007; Jones & Newburn, 2005). This effect has been
noted in many European countries, including the Netherlands (Pakes, 2004). In England,
sex offender and anti-outsider panic discourses have been linked to the decline of the
welfare state, which makes England similar to the United States (Shepard, 2007).
 Petrunik, Deutschmann / The Exclusion–Inclusion Spectrum in Response to Sex Offenders 505

Europeans generally have systems that although moving toward more surveillance,
remain focused on the medical model and are less stigmatizing and less likely to
involve permanent exclusion from society. There is greater use of ambulatory settings
within communities (Ruddijs & Timmerman, 2000).

Canadian Approaches to Sex Offenders

The Canadian justice system has relied heavily on the parole system to manage
the gradual and supported release of offenders. Even serious offenders are normally
let out on statutory release, after serving two thirds of their sentences, to serve the
final third under supervision in the community. Serious sex offenders, however, are
sometimes considered too dangerous to be released in this way and are so confined,
under legislation enacted in 1986 that allows detention to warrant expiry. They are
released from prison—often into hostile communities—only when they have served the
last day of their prison sentence. The newly released offender enters the community
without parole, without support to ease the transition to the responsibility that inde-
pendence requires, and without buffers to protect the community if relapse threatens.
Although Canadian criminal justice systems do not rely heavily on incarceration
(relative to the United States) and although they deny few offenders the right to hope
for reintegration (Petrunik, 2003; Webster & Doob, 2006), the use of various actuarial
and hybrid actuarial–clinical approaches to offender risk assessment has led to the
conclusion that some offenders are virtually certain to reoffend based on their scores
on such measures as the Psychopathy Checklist–Revised (Hanson, 2003; Langton,
Barbaree, Hansen, Harkins, & Peacock, 2007; Lieb, 2000; Looman, Abracen, Serin,
Marquis, 2005). Canadian citizens express attitudes toward crime and the criminal
justice system similar to those of citizens in other countries (Public Safety and
Emergency Preparedness Canada, 2001).
Canada has two sex offender registration systems—the province of Ontario’s
registry and the national registry—and five provinces have a limited form of notification
under community safety legislation (Petrunik, 2003). Under exceptional circumstances,
extra controls can be applied through an order of recognizance under Section 810 of
the criminal code that places limits on residency, association with others, and movement
in public places.
Unlike either the United States or continental Europe, however, Canadian social jus-
tice activists have developed a significant restorative community justice alternative—
the Circle of Support and Accountability (COSA)—for the reintegration of high-risk
sex offenders. The first COSAs were established in south-central Ontario in 1994,
when two high-profile, high-risk, high-needs offenders were forced out of smaller
communities and able to find supportive groups in churches in Hamilton and
Toronto. The COSA model emerged as a largely faith-based, restorative justice
approach (Petrunik, 2007) supported by the Correctional Service of Canada (n.d.).
There are roughly 100 circles in Canada, composed of trained volunteers assisted by
506 International Journal of Offender Therapy and Comparative Criminology

professionals who provide support to offenders and hold them accountable to a

covenant of conditions intended to promote community safety and offender reintegra-
tion (Bonger, 2003; Dyke, n.d.; Hannem & Petrunik, 2004, 2007; Madison Area Urban
Ministries, n.d.; McWhinnie & Wilson, 2005; Petrunik, 2007). In the United Kingdom,
a Quaker-promoted initiative, the Thames Valley Project, has been established under
the auspices of the Home Office (for various reports on the Quaker initiative, type
circles into the Search field at the home page of Quakers in Britain, http://www
.quaker.org.uk; see also, McAlinden, 2007; Wilson, 2007). In the United States,
there are pilot projects in Vermont and Oregon.
COSAs have effectively dealt with a population otherwise expected to have a high
rate of serious offending. New offences have been few in number and mostly minor
(McWhinnie & Wilson, 2005; Wilson, Cortoni, & Vermani, 2007; Wilson & Prinzo,
2001). Wilson, Picheca, and Prinzo (2005) have found that combining a COSA with
an 810 order and establishing good lines of communication with criminal justice and
mental health workers further reduces rates of recidivism. Wilson and colleagues
compared the core members (high-risk sex offenders) of 60 circles with 60 matched
controls using the Static-99 and Rapid Risk Assessment for Sexual Offense Recidivism
actuarial measures. The expected rate of recidivism for core members was 28.50%
(n = 17) and 28.45% (n = 16) for controls. When the sample was followed up for
periods ranging between 3 and 12 months, the recidivism rate was 8.33% for core
members and 16.67% for controls, about a 50% difference. Perhaps the major
factors limiting the further success of the COSA initiative include inadequate funding
and problems recruiting volunteers because of the intensive nature of the work and
the level of commitment required (Petrunik, 2007).

Approaches to Sex Offenders in Continental European Societies:

The Role of Clinical Experts and Resistance to Populist Punitiveness
Throughout much of Europe, the dominant approach to sex offending has been
medicalization or various hybrid approaches combining the medical model with
criminal justice controls (Frenken, 1999). Particularly important (especially in the
Germanic countries) have been psycho- and sociotherapeutic approaches based on
psychodynamic psychology (Lösel, 1996). This is not surprising given that the
Germanic nations gave birth to Freudian psychodynamic psychology, from which
came the notion that much crime and deviance were a result of mental disorder,
which was hugely important in the development of treatment programs for offenders
across much of Europe. In addition, there have been strong forensic clinical traditions
in France (Foucault, 1978), Belgium (Collignon & Van der Made, 1943; Tulkens &
Digneffe, 1979), the Netherlands (Derks, 1993; Netherland Prison Service, n.d.), and
the Scandinavian countries (Sansone, 1976; Weihe, 1988). In contrast, the United
States has been less apt to rely on clinical interventions, with the exception of the
sexual psychopath statutes and the various other medico–legal experiments during
parts of the last century.
 Petrunik, Deutschmann / The Exclusion–Inclusion Spectrum in Response to Sex Offenders 507

Even when criminalization of sexual offending occurs in Europe, there has been
great resistance to punitive sentences. The singular exception has been Switzerland,
the one European country whose citizenry can exercise direct control through
referendum and recall. In its capacity for penal populism, it is most like the United
States in being able to directly act on legislation about sex offenders; the Swiss
public has demanded stigmatization of criminals and life sentences for sex offend-
ers (Funk, 2004). Even so, Switzerland is similar to other European countries in its
acceptance of medico–legal approaches, such as drug treatment, that have little
support in contemporary North America (Killias, Aebi, & Ribaud, 2000).
In Germany, citizens lack quick access to the effective centre of government, in
which there is a strong and independent bureaucracy. A change that may influence the
future of sex offender legislation is the e-petitioner Public Petitions system launched
in September 2005, which allows Germans to raise petitions and access high-level
decision making in the German Bundestag (parliament). This has not yet been used for
mass petitioning (Deutsche Bundestag, n.d.; Scottish Parliament, 2005). Even so,
public opinion polls in Germany and other European countries do not show the same
levels of public concern about crime that are found in Anglo-American countries
(Girling, 2006). This may be a reflection of greater trust in government or a culture that
does not include expectations that ordinary individuals should have regular influence
on politicians. Furthermore, experts in Germany are more likely to express belief that
therapy works (Krebber, 2001; Oberwittler & Höfer, 2005).
Although there has been no overall moral panic in Germany, sentencing became
significantly more heavy-handed with respect to sex offenders in 1997—in the wake
of the 1995 Stephanie Karl case, in which an 18-year-old girl-next-door was
kidnapped, sexually abused, and murdered by a 35-year-old man who had a history
of offending; the 1996 case of 7-year-old Natalie Astner, who was kidnapped and
murdered by a paroled pedophile; and the notorious Dutroux case in neighbouring
Belgium in 1995 (Interpol, 2007).
Section 66 of the German criminal code (Strafgesetzbuch) provides for a preventive
detention (Sicherungsverwahrung) sentence of 10 years for dangerous recidivists,
with an indeterminate sentence possible for subsequent convictions. Such sentences
must be reviewed every 2 years and if continued threat cannot be established, the
inmate must be released. In Germany, the federal government is responsible for crim-
inal legislation, but state governments (Länder) legislate on safety matters. Some
community protection measures have been passed at the state level and others at the
federal level, and there continue to be constitutional challenges (Albrecht, 2004;
Federal Ministry of Justice, 2007; Wikipedia, 2007).
The preventive detention provision was originally used for persistent property
offenders but is now increasingly used against sexual offenders deemed dangerous
(Kinzig, 1997). Civil commitment is also possible but rarely used. Generally, the courts
will expect serious sexual offenders to serve their time in one of the special sociothera-
peutic prisons that have been established in Germany since the 1970s (following the
508 International Journal of Offender Therapy and Comparative Criminology

Danish and Dutch models; Laubenthal, 2003; Lösel, 1996). Such prisons provide
about 2% of the beds in secure penal settings in Germany. One of these is the
Psychological Treatment Unit for Aggressive Sex Offenders in the Prison of Hannover
in Lower Saxony, which operates as an independent social–therapeutic department
(Pfäfflin, 1999). In Austria, a similar system was established in 2002 that provides
in-prison treatment for sex offenders and out-patient treatment for sex offenders on
probation and parole.

The United States: Fear, Penal Populism, and Radical Exclusion

The United States has, for many years, made the most use of prisons and other
harsh, degrading punishments, such as chain gangs and public notification—even
posting offenders’ photographs and addresses on the Internet. In Florida, which
already has some of the most stringent measures for sex offenders in the United
States (Goodenough, 2005), some politicians are courting popularity by suggesting
that sex offenders be forbidden to live near schools and bus stops (Levenson &
Cotter, 2005). These initiatives place pressure on sex offenders who live in cities to
move to less populated areas. Presumably, rural politicians will defend their areas by
demanding some other form of restrictive legislation that will keep offenders away.
The observation is not a new one that the United States and much of Western con-
tinental Europe are at opposite ends of a justice spectrum, with the other English-
speaking countries (England, Canada, Australia, and New Zealand) strung out at various
points between them (Hodgson & Kelley, 2002). Tonry (2001, 2004) argues that the
similarity between the United States and other English-speaking countries is due to
the sharing of language, history, and the common law, whereas the differences are due
to social democratic traditions and elitist political cultures that are more like those of
Europe. “Deeper commitment to social welfare values and the notion that the legal
system should be insulated from political influence” (Tonry, 2001, p. 207) have
buffered the influence of what Tonry (2001) calls populist punitivism and what
Roberts et al. (2003) refer to as penal populism. There is a huge difference in the
field of influence available to a victims group working in the United States and one
working in Europe. Forms of government common in the United States provide a
much more direct access, both structurally (elected officials) and culturally (under-
standing of the role of the victim), than what is true in many European countries,
where bureaucratic functionaries assume an anonymous buffer role and are not likely
to be unseated if their decisions are unpopular. Canada, again, is in the middle. It has a
professional unelected bureaucracy, which is accountable to the elected government
in power in a way that makes change slower than that in the United States but not as
buffered as it is in most of Europe. Canadian officials, unlike their counterparts in
the United States, have not usually included representatives of populist groups on
government task forces, preferring instead the more impersonal representation of
government bureaucrats. This was the situation with Canada’s federal, provincial, and
territorial high-risk-offender working group, in contrast with community protection
task forces in American states (Petrunik, 2003).
 Petrunik, Deutschmann / The Exclusion–Inclusion Spectrum in Response to Sex Offenders 509

The Great Divide: Why the United States Differs

From Elsewhere in Its Approach to Sex Offenders

Continental Europe, the United Kingdom, the United States, Canada, Australia,
and New Zealand have all had triggers for public outrage against sex offenders. The
prototypical case of a predatory sadistic pedophile who rapes and murders children
and youth is that of Marc Dutroux (alluded to earlier), “the monster of Charleroi,” in
Belgium (Dowdney, 2004). The Dutroux case, along with a series of child killings in
Germany and England, sparked an international wave of indignation, followed by
new legislation for sex offenders in Belgium, Germany, and the United Kingdom
(Albrecht, 2004; “Berlin to Tighten Measures,” 2004; Jenkins, 2001; Kincaid, 1998;
Krebber 1999; Oberwittler & Höfer 2005; Office of Public Order Information, 1998;
Walsh, 1996). Most European nations, however, have resisted or lagged behind the
overall punitive turn in popular attitudes and in penal practices that has characterized
the English-speaking world (Karstedt, 2001, 2002). Even in Germany, where some
recent research points to greater punitiveness on the part of former East Germans in
the integrated Germany and among Germans affected by the tabloid press, there appears
to be no clear trend toward increased punitiveness in the nation as a whole (Oberwittler &
Höfer, 2005), although there has been an increase in psychiatric commitments
(Pfäfflin & Eher, 2003; Walmsley, 2003; Weigand, 2001).
The increasing punitiveness in penal policies and the increasing focus on reducing
the risk of harm through prevention and incapacitation, which have been in ascendancy
in the English-speaking world (Roberts et al., 2003), seem to follow a certain degree
of political harmonization expressed in the closeness between the Reagan (United
States) and Thatcher (United Kingdom) governments and, more recently, the Bush
(United States), Blair (United Kingdom), and Harper (Canada) governments. Close
ties based on a common language and jurisprudence and a shared popular culture
have led to increasing convergences of political–criminal justice cultures (Jenkins,
2001; Petrunik, 2003). This phenomenon is shown in many of the chapters in
Newburn and Sparks’s Criminal Justice and Political Cultures (2004), which covers
Australia and the United States (O’Malley, 2004), the United Kingdom and the
United States (Jones & Newburn, 2004), and South Africa (van Zyl Smit & van der
Spuy, 2004).
The United States’ divergence from continental European nations in criminal justice
matters is deep-rooted and related to recent events (Garland 2001; Jenkins, 2001;
Petrunik, 2005; Whitman, 2003). Garland (2001) contends that there was a common
ground of penal welfarism and correctionalism in all of these countries starting in
the 1890s and reaching a zenith in the 1950s and 1960s. The mid-1970s saw a crisis
in penal modernism, accompanied by a pervasive sense of failure and loss of confi-
dence in the criminal justice system. This is variously attributed to rising crime rates
(Blumstein & Wallman, 2000), media and political campaign distortions (Beckett,
1999), interracial and generational conflict (Gaubatz, 1995; Males, 1999), drug and
510 International Journal of Offender Therapy and Comparative Criminology

war-on-drug issues (Miller, 1996; Tonry, 1995), and the development of new methods
of actuarial and bureaucratic control (Feeley, 2004; Feeley & Simon 1992). These
trends, along with the spread of the “nothing works” critique of correctional inter-
vention throughout the English-speaking part of the world, have led to the develop-
ment within England, the United States, and Canada of two lines of governmental action:
“An adaptive strategy stressing prevention and partnership and a sovereign state
strategy stressing enhanced control and expressive punishment” (Garland, 2000, p. 348;
italics in original).
Common ground, however, was not enough to prevent major divergence of policy.
Whitman (2003) lists the following reasons for this: America’s “distinctively fierce
Christian beliefs” (p. 6); the distinct American version of racism with its roots in
slavery and Jim Crow legislation; the prevalence and patterns of violence in
American society; and, above all, the divergence in America’s history owing to the
virtual absence of the influence of a benevolent aristocracy and haute bourgeoisie on
the justice system.
Whitman’s argument, in capsule form, is based on only the cases of France and
Germany and thus not representative of all of continental Europe. These two
countries have been moving away from justice systems that once had two forms:
first, a relatively respectful and rehabilitative form for the aristocracy (the Bastille
had private rooms and libraries and allowed visitors); second, a violent, degrading,
and fundamentally unjust form for the commoners. Over time, France and Germany
have been eliminating the lower levels. Although the European public as a whole
supports this trend toward more respectful and nonviolent justice, it resists a return
to degrading punishments and denying offenders any hope of rehabilitation and a
return to civil society. There are no chain gangs and orange uniforms to humiliate
and control. Social movements promoting harsher punishment are rare and largely
linked to specific incidents involving violent sexual offences against children. The
death penalty was long ago abolished in most nations. Fines are used more, even for
some violent offences, since the degradation of lockup is not deemed necessary. The
life sentence is avoided as much as is believed to be consistent with public safety.
Some individual offenders are constructed in the media and public consciousness as
truly despicable and expendable; nonetheless, it is not possible to sustain long-term
social movements that lock up all offenders and punish whole classes of them. The
United States, however, is moving away from justice systems that privilege members
of economic elites and despite some experimental exceptions in restorative justice,
is moving toward descending into increasingly punitive and degrading conditions for
all offenders, justified in terms of the rhetoric of equality.
Whitman’s thesis (2003) that there is a difference in the acceptability of harsh pun-
ishment in Europe and the United States is supported by the work of other writers,
such as Himmelfarb (2004) and Perry (1999). Himmelfarb contends that Europe and
North America took different paths to modernity. She argues that in England,
Scotland, and America, the “age of reason” was skeptical rather than radical and that
it never held the near worship of reason and anticlericalism characteristic of France.
 Petrunik, Deutschmann / The Exclusion–Inclusion Spectrum in Response to Sex Offenders 511

Although Himmelfarb does not look at justice systems per se, her analysis helps us
understand how France and Germany developed into democracies with substantial
paternalistic bureaucratic controls that do not easily allow the public to assume control
of criminal legislation. It cannot target either the politicians or the justice system
very easily. In Germany, for example, it is a criminal offence to insult a bureaucrat. At
the same time, the United States developed into a nation swept by various social move-
ments, both evangelical and secular, that reflect the notion that citizens are entitled by
the politics of liberty but burdened by the responsibility that it entails.
Arguing that social rage underlies much of America’s populist punitiveness, Perry
(1999) notes that on one level, all three elements of the criminal justice system (law
enforcement, the courts, and corrections) can inspire such rage by their perceived
failures but that on a deeper level, social rage against offenders is actually displaced
anger related to the way that the American Dream has faded in late modernity. The
traditionally enfranchised, mostly White population is frustrated and angry because
of the loss of its relative security and superiority as the modern world gives way to
the late modern cacophony of new voices and visions of entitlement and the loss of
old forms of employment and leisure. The status-threatened classes are encouraged to
seek vengeance against marginalized scapegoats rather than deal with the underlying
causes of their malaise (Perry, 1999). The result is rage expressed as intolerance and
the use of the justice system in socially unjust ways.
Taylor (1998) argues that market liberalism may foster such anxiety as collateral to
encourage people to work harder to be able to consume more goods and services.
Taking out insurance, borrowing money to purchase a home, and participating in stock
and bond markets because of feelings of insecurity can actually make people less
secure, rather than more secure, under risk conditions and the corruption of the mar-
ketplace. Taylor questions, too, whether the anxiety expressed in crime victim surveys
is really about crime and the chances of victimization or whether fears expressed about
crime are a convenient, socially approved shorthand for the general malaise that a full-
blown free market environment produces. This malaise can lead to scapegoating of the
Other whereby the acceptable denigrated target receives all the anger that has been
generated by these conditions. In a critical reading of events, representatives of gov-
ernment may support such scapegoating because it is a useful redirection of the fear
and anger that many members of the public feel or because it is politically dangerous
to oppose it, despite its potential undermining of democratic institutions.
Anderson (1995) calls this phenomenon expressive justice and says that it is
found in “laws, policies, and practices designed more to vent communal outrage than
to reduce crime” (p. 14). In terms reminiscent of Kai Erikson’s explanation (1966)
of the Salem witchcraft craze, Anderson claims that expressive justice (e.g., stock,
pillory, scarlet letter) was used by the Puritans to channel public fear:

Effectiveness in controlling crime does not appear to be the point. Fearful people take com-
fort in the idea of a mandatory sentence. . . . Demanding tough sentences and voting for
them give people a way to feel as if they are doing something, a way to handle fear. (p. 14)
512 International Journal of Offender Therapy and Comparative Criminology

Anderson (1999) notes five key elements underlying the maximal demand for
expressive justice: luridly depicted violence; respectable middle-class victims (usually
White); victims depicted as wholly innocent; victims apparently chosen at random;
and criminals with prior involvement with the justice system who “got off,” or were
inappropriately released. These five elements were illustrated in the Willie Horton
case of 1988, which was used by George Bush Sr. to portray his Democratic opponent
Michael Dukakis as being soft on crime. Interestingly, whereas Horton’s release on
parole was a dramatic failure, the prison building and the cancellation of graduated
parole in response to his demonization have been extremely expensive and, arguably,
counterproductive in terms of safety for citizens. That the Horton case occurred during
a federal election and that the publicity surrounding the case changed the course of
the election clearly illustrates that sexual offenders are not just a criminal justice
issue in the United States but also a political one.

Conclusion

Sexual offenders—particularly, serial offenders with multiple paraphilias—pose

serious problems for contemporary societies. All of the nations studied for this article
were tightening their controls, although at greatly differing speeds, with the United
States at one end of the spectrum, with continental Europe (notably, the Germanic
societies) at the other, and with the United Kingdom, Australia, New Zealand, and
Canada somewhere in the middle. Developments in the United States have had an
impact on many jurisdictions outside the United States. Some have copied the
United States in naming a law after the victim of a sexual offender (e.g., Natalie’s
law, Germany); others have reacted against the United States. For example, the
European community courts have rejected the death penalty, and most countries
other than Switzerland avoid the life sentence.
Continental Europe, going back to the Italian school of criminal anthropology,
maintains a strong tradition of clinical criminology that combines social defense with
mental health policy. The sexual deviant’s sickness makes him dangerous and necessi-
tates that he be incapacitated through confinement and treated by clinical specialists.
At least until recently, such treatment has included surgical castration, but it is
unlikely to include permanent labeling as an outcast. The sick are expected to get
well but are released only when a cure has ostensibly occurred, not when a given
sentence has been served.
The United States has a strong populist victims movement capable of influencing
representatives of both major political parties as well as state and federal bureaucrats
to introduce special measures rapidly. Under the banner of “community protection,”
these measures aim to protect children: the most vulnerable and sacred of victims.
For example, Washington State’s Community Protection Act was introduced less
than a year after the incidents that propelled it (Petrunik, 2005); Megan’s law passed
 Petrunik, Deutschmann / The Exclusion–Inclusion Spectrum in Response to Sex Offenders 513

in only 89 days after the sexual assault and murder of Megan Kanka by a repeat
offender; and Florida’s Jessica Lunsford legislation passed almost as quickly
(Goodenough, 2005). Such legislation is highly symbolic and built on strong emotions
of fear, anger, and disgust, and it underlies the folk devil status of sexual offenders, who
are feared, loathed, and expelled from respectable society. In many cases in the United
States, it is only the appellate courts that retain distance from populist pressures and thus
provide counterbalance and room for the influence of evidence-based correctional poli-
cies (Listwan, Cullen, & Latessa, 2006).
In contrast with the United States (“the hare”), Canada (“the tortoise”) has a cautious
approach to initiating legislation, as expressed in lengthy study by working groups
of bureaucrats and federal–provincial negotiations (Petrunik, 2003). There has been
reluctance on the part of political parties in power to base policy making on populist
pressure. Canada, along with Australia and New Zealand, has placed more emphasis
on alternative forms of justice within the range of restorative justice, including
sentencing circles and COSAs.
Whereas Canada has remained cautiously but creatively in the middle with respect
to the management of sex offenders, it has shown some indication of regressive
policy. Under the current Conservative government, Canada could very easily follow
penal populist trends in the United States that increase fear and promote quasi vigi-
lantism or a NIMBY (“not in my backyard”) approach. Instead, Canada can strengthen
areas where it already leads by further supporting the work of community justice
alternatives such as COSA, by continuing to refine actuarial and clinical assessment
methods that show significant variations in risk and responsivity between different
categories of offenders, and by concentrating on “what works, for whom.” Finally,
given the relative lack of attention by crime prevention practitioners to child sexual
abuse, much more needs to be done in the way of public education and prevention
programs targeting sexual victimization.

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