Abstract
On February 7, 1989, Earl Kenneth Shriner was convicted of kidnapping, raping, mutilating, and attempting to murder a 7-year-old boy in Tacoma, Washington. Shriner had a 24-year history of sexual violence, and had recently been released from prison after expiration of a prison term for kidnapping and assault of two teenage girls. Shriner has been described as a “slightly retarded man with a bizarre physical appearance” (Petrunick 1994, 57). His physical appearance seemed to suggest an inner strangeness, a psychological otherness that seemed to explain his appalling conduct (Petrunick 1994). It somehow made sense that a man who looked like Shriner would commit sexually violent acts. Mental retardation and physical ugliness have often suggested sexual deviance in literature, as in William Faulkner’s mentally retarded character Benji in the Sound and the Fury, who was castrated after being accused of raping a young girl. Benji is emblematic of our anxieties about sexual innocence and mental disabilities (Tilley 1955).
Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life.
Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601, 1601 (1986).
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Notes
- 1.
Chapter 71.09 RCW. In 1994, Kansas enacted a version of the law that was challenged by Leroy Hendricks. The Kansas Supreme Court held that the statute violated substantive due process protections because it relied on the finding that Hendricks suffered from a “mental abnormality,” a phrase that was unconstitutionally vague and broad. In Kansas v. Hendricks, 521 U.S. 346 (1997), the United States Supreme Court, in an opinion by Justice Clarence Thomas, held that the Statute was constitutionally valid because the Act met substantive due process standards by requiring considerable evidence of past violent sexual behavior and a present mental inclination to repeat such offenses. Furthermore, the Court held that since it required the release of confined persons who became mentally stable and no longer dangerous, did not speak of scienter, and lacked other procedural safeguards characteristic of criminal trials, the Act did not violate double jeopardy guarantees since it merely authorized “civil” rather than “criminal” commitments. Hendricks presented the standard legal argument supporting the constitutionality of similar Acts throughout the United States.
- 2.
When Cover uses the term “violence” to refer to the imposition of values via law, that is, as an interpretive act, he does not mean that violence is always bad. He, and we, use the word “violence” in a broad sense more or less co-extensive with “coercion” in some contexts and “destruction” in other contexts, not to do “violence” to ordinary usage, but to point to the entire family of meanings of that word. We wish to avoid the easy narrow identification of violence with harm caused by physical brutality.
- 3.
Kansas v. Crane 534 U.S. 407 (2002).
- 4.
The other states with various forms of SVP statutes are Arizona, Ariz. Rev. Stat. Ann. §§ 36-3701–36–3717 (2008); California, Calif. Welf. & Inst. Code, § 1800 (2007); Florida, Fla. Stat. Ann. §§ 394.910–394.932. (2008); Iowa, Iowa Code § 229A (2008); Illinois, 725 Ill. Comp. Stat. 207/1 (2008); Kansas, Kan. Stat. Ann. § 59-29a05 (2006); Massachusetts, Mass. Ann. Laws ch. 123A, §§ 1–16 (2008); Missouri, Mo. Rev. Stat. §§ 632.480–632.513 (2008); Nebraska, Neb. Rev. Stat. § 83–174 (2008); New York, N.Y. Men Hyg Law § 10 (2008); North Dakota, N.D. Cent. Code § 25–03.3-01 (2008); Pennsylvania, 42 Pa. Cons. Stat. §§ 6401–6404 (2008); South Carolina, S.C. Code Ann . §§ 44-48-10–44-48-170 (2007); Texas, Tex. Health & Safety Code Ann. § 841 (2007); Virginia, Va. Code Ann . §§ 37.2-900–37.2-920 (2008); Washington, Wash. Rev. Code § 71.09 (2008); Wisconsin, Wis. Stat. § 980 (2007).
- 5.
Catch-all provisions are included in the statutes of Arizona, California, Florida, Illinois, Kansas, Minnesota, New York, South Carolina, Washington and Wisconsin.
- 6.
South Carolina’s catch-all section is the same as New Jersey’s. S.C. Code Ann § 44-48-30(2) (Supp 2006).
- 7.
The enumerated non-sexual offense with sexual motivation model is found in the Arizona, Illinois, Minnesota, New York, Washington, and Wisconsin Acts. In addition, California limits its catch-all provision to enumerated felonies where the state proves “use of force and violence against a stranger in a predatory manner.” Calif. Welfare and Inst. Code, Sec. 1800 et seq.
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Douard, J., Schultz, P. (2013). Sexual Predator Laws: A Gothic Narrative. In: Monstrous Crimes and the Failure of Forensic Psychiatry. International Library of Ethics, Law, and the New Medicine, vol 53. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-5279-5_2
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