Asymmetrical Information - Megan McArdle

09.20.12

The Cost of Costly Punishment

Why does it take so long to identify and punish child molesters? Maybe because we punish them so severely.

I see that Malcolm Gladwell has a short (for him) piece up about how child molesters manage to get away with it.  Many child molesters seem to have a history of accusations, or at least suspicions, that stretches back years before they are finally caught.  Why don't the adults do anything?  

The answer, says Gladwell, is that child molesters spend years grooming both children and adults, testing limits, and then pushing past them so slowly that it is very difficult to recognize when they have finally, definitely crossed the line.  

The successful pedophile does not select his targets arbitrarily. He culls them from a larger pool, testing and probing until he finds the most vulnerable. Clay, for example, first put himself in a place with easy access to children—an elementary school. Then he worked his way through his class. He began by simply asking boys if they wanted to stay after school. “Those who could not do so without parental permission were screened out,” van Dam writes. Children with vigilant parents are too risky. Those who remained were then caressed on the back, first over the shirt and then, if there was no objection from the child, under the shirt. “The child’s response was evaluated by waiting to see what was reported to the parents,” she goes on. “Parents inquiring about this behavior were told by Mr. Clay that he had simply been checking their child for signs of chicken pox. Those children were not targeted further.” The rest were “selected for more contact,” gradually moving below the belt and then to the genitals.

The child molester’s key strategy is one of escalation, desensitizing the target with an ever-expanding touch. In interviews and autobiographies, pedophiles describe their escalation techniques like fly fishermen comparing lures. Consider the child molester van Dam calls Cook:

Some of the little tricks that always work with younger boys are things like always sitting in a sofa, or a chair with big, soft arms if possible. I would sit with my legs well out and my feet flat on the floor. My arms would always be in an “open” position. The younger kids have not developed a “personal space” yet, and when talking with me, will move in very close. If they are showing me something, particularly on paper, it is easy to hold the object in such a way that the child will move in between my legs or even perch on my knee very early on. If the boy sat on my lap, or very close in, leaning against me, I would put my arm around him loosely. As this became a part of our relationship, I would advance to two arms around him, and hold him closer and tighter. . . . Goodbyes would progress from waves, to brief hugs, to kisses on the cheek, to kisses on the mouth in very short order.

Sandusky started with wrestling, to make physical touch seem normal. In the shower, the boy initially turned on a showerhead a few feet from Sandusky. Sandusky told him to use the shower next to him. This was a test. The boy complied. Then came the bear hug. The boy’s back was touching Sandusky’s chest and his feet touched Sandusky’s thigh. Sandusky wanted to see how the boy would react. Was this too much too soon? The boy felt “weird” and “uncomfortable.” Sandusky retreated. The following week, Sandusky showed up at the boy’s home, circling back to test the waters once again. How did the boy feel? Had he told his mother? Was he a promising lead, or too risky?  

And when they finally do get caught crossing a line, how do they get out of it?  By being so charming and innocent appearing that the adults can't quite believe it:

The pedophile is often imagined as the dishevelled old man baldly offering candy to preschoolers. But the truth is that most of the time we have no clue what we are dealing with. A fellow-teacher at Mr. Clay’s school, whose son was one of those who complained of being fondled, went directly to Clay after she heard the allegations. “I didn’t do anything to those little boys,” Clay responded. “I’m innocent. . . . Would you and your husband stand beside me if it goes to court?” Of course, they said. People didn’t believe that Clay was a pedophile because people liked Clay—without realizing that Clay was in the business of being likable.

I am sure all of this is true, but I would like to point out one other thing: our natural resistance to believing the worst of someone.  And "child molester" is the worst.  It is literally the most horrible thing you can do in our society; morally, the child molester sits above only the child molester/serial killer who rapes and kills children.  That makes an accusation of child molesting an extraordinary claim.  And as the saying goes, extraordinary claims require extraordinary evidence.

Imagine that your best friend was accused of stealing office supplies from his company.  Now imagine that he was accused of molesting a neighbor's child.  The first one isn't very hard to believe; almost everyone takes a pen or two home occasionally, and most companies go through printer paper much faster than they produce actual documents.

Unless your best friend is the sort of morally upright saint who drives 30 miles back to the convenience store because the clerk forgot to charge him for a pack of gum, you wouldn't need much evidence to believe he steals office supplies.  Nor would you care much if he did.  (For what it's worth, my best friend is an honest person who works from home, and as far as I know, has never stolen office supplies.  But at the risk of promoting rampant immorality in the supply closet, I have to say that even if she did, I still probably wouldn't end our friendship over it.)  

Now if a kid said that your best friend touched their genitals . . . well, if it's true, and he did it deliberately, you're pretty much going to have to end the friendship.  His life will, of course, be completely destroyed.  And you face knowing that this person you thought was your best friend did something indescribably evil.  You're going to want quite a bit of proof.  And if the action is ambiguous--like maybe his hand accidentally grazed the area in question while doing something quite innocent--you're probably going to err on the side of believing your friend (although you might also supervise your kids more closely when they're around him.)

Something that law-and-order hawks frequently underestimate is that when you make punishments harsher, they tend to be applied less frequently.  Take probation revocation.  In theory, once a pattern of probation violations is established, a judge brings the hammer down and sends the offender to jail.  In practice, probation violations only get written up when there's quite a pattern of offending--5, 10, even 20 or more violations. Eventually, the probationer commits one violation too many, and their frustrated probation officer requests a revocation. 

The problem is that even if there's a pattern, the actual violation that sends them to court is usually fairly trivial: they missed a probation appointment, tested dirty on a drug test, or perhaps got caught drinking a beer.  You're asking a judge to send someone to prison for years over . . . what?  Time management problems? A fondness for Coors Light?  (Cue obvious jokes about American beer.)  

In practice, the judge often declines to do so; they send the probationer back to try again.  Eventually, that person is probably going to end up in jail--the failure rate of probation is disappointingly high--but it takes a long time.  The result is what Mark Kleiman calls "randomized draconianism".  Most of the time, when you violate, nothing happens.  Only occasionally do we send you to jail.  And that's inherent in the system: who imposes a five year prison term for smoking a single joint?  

There's a reason that prosecutors like to give juries the option of voting for lesser included offenses--give juries the choice of death penalty or life in prison, first degree murder or manslaughter.  If juries only had a choice between putting a man to death, or setting him free, they would probably set him free more often than they do.

Society has very properly stigmatized child molesting as too dreadful to contemplate.  When we catch people doing it, we systematically and thoroughly ruin their life forever, starting with jail terms, and ending with sex offender registries, unemployment, and residential restrictions that sometimes force them to live under a bridge.

But the very seriousness of the crime, and the harshness of the consequences means that society is also going to want to be very, very sure that the people it punishes have actually molested children. Nor is it clear to me that this is the wrong instinct; it is worth recalling that we systematically and thoroughly ruined the lives of the Amiraults forever, based on clearly confabulated stories from children who were inadvertently coached by irresponsible therapists to accuse the Amiraults of, as the Board of Parole put it in a skeptical review of the case, "extraordinary if not bizarre allegations."  

I don't really see any way around this.  Some crimes should be viewed as so morally horrific that they cut one off from decent society.  But society also needs to be careful about who it cuts off.  It is very terrible to let a child molester keep working on new victims.  But it is also very terrible to destroy the life of an innocent adult--to brand him with a label that will probably keep him from ever associating with decent people again.

This does not, by the way, apply only to legal crimes.  We've stigmatized racists in much the same way: to be a racist is almost by definition to be a terrible person, or at least, a person who has very terrible thoughts.  But now liberals complain that they cannot have a discussion about race with conservatives without the conservatives taking horrible offense and acting as if the accusation of racism were worse than racism itself.

But this is the natural result of making racism into something so terrible that to utter an obviously racist remark is to brand yourself as an outcast.  You can't have it both ways--say that racism is so terrible that even subtle manifestations deserve to be stigmatized by all right-thinking people, and then turn around and say that everyone's a little bit racist and you're just trying to have a conversation about how we can all pull together to build a more race-tolerant society. 

That taboo is a good thing in many ways; I believe that social sanction keeps quite a bit of racism from being expressed, or acted upon.  But the flip side is that there is no such thing as an accusation of "mild" racism, any more than there are moderately bad child molesters.  If you call someone racist, you are invoking a huge social taboo.  (Something that, I must confess, I don't think all the complaining liberals are entirely unaware of.)  But inherent to a taboo's power is the fact that it's only rarely invoked. 

In the cases of child molesting and racism, I think we've chosen the right tradeoff.  (In the case of probation, I think we haven't, as I'll outline in my book).  But we should understand that it's a tradeoff:  the stiffer the social or legal punishment, the steeper the burden of proof that accusers must climb.