A WELL-MEANING proposal in the Legislature to strengthen laws against sex offenders in Massachusetts may offer some comfort to the general public. But the true test of such laws is whether they advance justice for victims and prevent future crimes, not just make the rest of us feel good.
Using the 2005 Jessica's Law in Florida as her guide, state Representative Karyn Polito of Shrewsbury is seeking to expand penalties for sex crimes against children ranging from possession of child pornography to rape of a child with force while using a weapon. Currently, judges have broad discretion when sentencing sex offenders. Some child rapists even elude prison. Under Polito's bill, the rape of a child under 16 with force would require a mandatory minimum sentence of either 10 or 20 years, depending on the age of the victim.
Polito is astute in pointing out the weakness of a sentencing system that doesn't enhance penalties for sex crimes against young children. So-called "Romeo and Juliet" situations involving consenting teenagers of different ages should not, as a rule, be treated as serious crimes. But no possible extenuating factor could apply in the case of an adult who poses a 10-year-old child in a sexual act.
Yet Polito's quick fix, in the form of mandatory minimum sentences, not only strips many good judges of their discretion but may also unintentionally hinder the successful prosecution of sex criminals.
One of the frustrating truths of child sexual abuse is the consistent failure of prosecutors to win convictions at trial. Often, the victim is an acquaintance or relative who has been manipulated for years by the perpetrator. Many child victims are too scared or confused to testify. Even substantiated cases brought by social service agencies can collapse when parents refuse to allow their children to testify. So prosecutors often concentrate on convincing the accused to plead guilty to a lesser offense. But few perpetrators will be jumping at the chance to serve 10 or 20 years in state prison under Polito's bill. More trials are likely to lead to more guilty perpetrators walking away with no criminal record or ongoing court supervision at all.
There is a middle, safer ground. Sentencing guidelines that have languished for years in the Legislature offer a chance to retain leverage for prosecutors, preserve judicial discretion, and increase penalties for some perpetrators. Under the guidelines, for example, a first offense for rape of a child under 16 with force would bring a sentence recommendation of 8 to 12 years. Judges would be required to explain in writing if they deviate from the grid. The guidelines could be improved even further by incorporating Polito's enhanced penalties for sex crimes against children under the age of 12.
Massachusetts is among a small minority of states that have not adopted some law similar to Polito's. And absent proof that it makes children safer, we should remain that way.
