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TWO STRIKES AND YOU'RE OUT CHILD

PROTECTION ACT OF 2001

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME

OF THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

ON

H.R. 2146

JULY 31, 2001

Serial No. 38

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary

(II)

COMMITTEE ON THE JUDICIARY

F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman

HENRY J. HYDE, Illinois

GEORGE W. GEKAS, Pennsylvania

HOWARD COBLE, North Carolina

LAMAR SMITH, Texas

ELTON GALLEGLY, California

BOB GOODLATTE, Virginia

STEVE CHABOT, Ohio

BOB BARR, Georgia

WILLIAM L. JENKINS, Tennessee

ASA HUTCHINSON, Arkansas

CHRIS CANNON, Utah

LINDSEY O. GRAHAM, South Carolina

SPENCER BACHUS, Alabama

JOE SCARBOROUGH, Florida

JOHN N. HOSTETTLER, Indiana

MARK GREEN, Wisconsin

RIC KELLER, Florida

DARRELL E. ISSA, California

MELISSA A. HART, Pennsylvania

JEFF FLAKE, Arizona

JOHN CONYERS, JR., Michigan

BARNEY FRANK, Massachusetts

HOWARD L. BERMAN, California

RICK BOUCHER, Virginia

JERROLD NADLER, New York

ROBERT C. SCOTT, Virginia

MELVIN L. WATT, North Carolina

ZOE LOFGREN, California

SHEILA JACKSON LEE, Texas

MAXINE WATERS, California

MARTIN T. MEEHAN, Massachusetts

WILLIAM D. DELAHUNT, Massachusetts

ROBERT WEXLER, Florida

TAMMY BALDWIN, Wisconsin

ANTHONY D. WEINER, New York

ADAM B. SCHIFF, California

PHILIP G. KIKO, Chief of Staff-General Counsel

JULIAN EPSTEIN, Minority Chief Counsel and Staff Director

SUBCOMMITTEE ON CRIME

LAMAR SMITH, Texas, Chairman

MARK GREEN, Wisconsin

HOWARD COBLE, North Carolina

BOB GOODLATTE, Virginia

STEVE CHABOT, Ohio

BOB BARR, Georgia

ASA HUTCHINSON, Arkansas,

Vice Chair

RIC KELLER, Florida

ROBERT C. SCOTT, Virginia

SHEILA JACKSON LEE, Texas

MARTIN T. MEEHAN, Massachusetts

WILLIAM D. DELAHUNT, Massachusetts

ADAM B. SCHIFF, California

JAY APPERSON, Chief Counsel

SEAN MCLAUGHLIN, Counsel

ELIZABETH SOKUL, Counsel

KATY CROOKS, Counsel

BOBBY VASSAR, Minority Counsel

(III)

C O N T E N T S

JULY 31, 2001

OPENING STATEMENT

The Honorable Mark Green, a Representative in Congress From the State

of Wisconsin, and Acting Chair, Subcommittee on Crime ................................ 7

WITNESSES

Mr. Robert Fusfeld, Probation and Parole Agent, Sexual Offender Intensive

Supervision Team, Wisconsin Department of Corrections, Green Bay, WI

Oral Testimony ..................................................................................................... 1

Prepared Statement ............................................................................................. 4

Mr. Marc Klaas, Klaas Kids Foundation, Sausalito, CA

Oral Testimony ..................................................................................................... 16

Prepared Statement ............................................................................................. 18

Ms. Polly F. Sweeney, Richmond, VA

Oral Testimony ..................................................................................................... 20

Prepared Statement ............................................................................................. 21

Ms. Phyllis Turner Lawrence, Victim Assistance and Restorative Justice Consultant, Washington, DC

Oral Testimony ..................................................................................................... 22

Prepared Statement ............................................................................................. 24

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

The Honorable Lamar Smith, a Representative in Congress From the State

of Texas, and Chairman, Subcommittee on Crime ............................................ 6

The Honorable Mark Green, a Representative in Congress From the State

of Wisconsin .......................................................................................................... 11

APPENDIX

STATEMENTS SUBMITTED FOR THE RECORD

Prepared Statement of Mr. Franklin E. Zimring, William G. Simon Professor

of Law and Director, Earl Warren Legal Institute, University of California

at Berkeley ............................................................................................................ 33

MATERIAL SUBMITTED FOR THE RECORD

Letter From Shawna Brewer, Sexual Assault Survivor/Mother of Survivors .... 34

Letter From Laura Murphy, Director, Washington Office American Civil Liberties Union; Julie Stewart, President, Families Against Mandatory Minimums; Edward A. Mallett, President, National Association of Criminal

Defense Lawyers .................................................................................................. 37

Letter From Timothy B. McGrath, Staff Director, United States Sentencing

Commission, Washington, DC ............................................................................. 40

Letter From Diana E. Murphy, Chair, United States Sentencing Commission,

Washington, DC ................................................................................................... 43

Letter From Robert Raben, Assistant Attorney General, U.S. Department

of Justice ............................................................................................................... 59

News Release From ACLU ..................................................................................... 65

(1)

TWO STRIKES AND YOU’RE OUT CHILD

PROTECTION ACT OF 2001

TUESDAY, JULY 31, 2001

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CRIME, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to notice, at 5:51 p.m., in Room

2237, Rayburn House Office Building, Hon. Lamar Smith [Chairman of the Subcommittee] presiding.

Mr. SMITH. The Subcommittee will come to order. Our first order

of business is to thank our witnesses today for being so patient

with us and with the floor schedule. You all know we cannot conduct a hearing while the Judiciary Committee has a bill on the

floor, which has been the situation this afternoon. So we just appreciate your understanding that.

Also, I am told that Mr. Fusfeld has a seven o’clock flight tonight, and—out of Dulles or National Airport?

Mr. FUSFELD. National Airport.

Mr. SMITH. Out of National Airport.

In any case, we’re going to go a little bit out of order today and

postpone our opening statements until Mr. Fusfeld has testified.

After that, we’ll have opening statements and then we’ll resume

the hearing and hear from the other witnesses at that point. This

is all in the interest of getting you to the airport, Mr. Fusfeld.

I might also explain to both the witnesses and to those others

who are in the room that we are expecting another vote within the

next few minutes, so we will have to take a brief break, go vote,

and then come back and resume the hearing at that point as well.

Mr. Fusfeld, if you will begin, we are looking forward to your testimony.

STATEMENT OF ROBERT FUSFELD, PROBATION AND PAROLE

AGENT, SEXUAL OFFENDER INTENSIVE SUPERVISION TEAM,

WISCONSIN DEPARTMENT OF CORRECTIONS, GREEN BAY,

WI

Mr. FUSFELD. Thank you very much.

Good afternoon, Congresspersons. I am Robert Fusfeld, a father,

a resident of Congressman Mark Green’s district, a Wisconsin probation and parole agent with a case roster comprised of high-risk

sexual offenders.

Though I am a lifelong Democrat, I have been aware of Congressman Green’s desire to pass legislation which will confine two-strike

child sexual offenders for life.

2

When I noted in one of our local papers that Congressman Green

was reintroducing this bill, H.R. 2146, I decided that ideology and

party could not stand in the way. As one of his constituents, I

strongly support the passage of this bill. It is important for the

children, their families and our communities that these disturbed

and dangerous persons not be allowed to torment another child.

My beliefs and opinions are not those of the Wisconsin Department of Corrections; instead, they are mine, founded upon experience, knowledge and training.

In 1974, I began my professional career where I was first exposed to a child-molesting parent. I was stunned when his wife

confided she was aware of her husband’s behavior and informed

the interviewer that, thank God it was them, not me.

I worked with alcoholics and drug dependents where I witnessed

their analgesic response to the devastating effects of child sexual

abuse. There was little doubt that this trauma played a significant

role in their acquired use and addiction. This is no longer an observation; it is now rooted in fact. But I too noted that these persons

were afflicted by personality disorders with profound disturbance.

It appeared odd that they would inflict the same pain and rage

upon innocent persons.

Attempting to ascribe psychological relevance for amoral behavior does not protect anyone. As my career progressed, I noted the

same symptoms manifesting among adolescents, many of whom

were victimized by family, clergy, neighbors, teachers, and the system prior to puberty. They were manipulated and objectified; intimacy was cheapened and distorted. But this is the mind of the

child molester. Their thinking process is distorted, composed of virulent fantasies which are refined and rehearsed. Deceptive and devious, they convincingly rationalize and justify their behavior. You

cannot imagine how often during the past 27 years I have heard

some of the following: She seduced me. She wanted it, you know?

He wanted to know about sex, so I taught him to masturbate. The

Lord gives me dominance; it’s stated in the Bible.

And when I began working with those who committed homicide

and/or sexual crimes, I was intrigued by the habitual nature of

their patterns. Many academics and researchers have found that

some child molesters have staggering numbers of victims. Finally,

when discovered, some are not prosecuted; their charge is reduced

through plea bargaining—please note the Barjona case—or ignored

by trained professionals who should have been attentive to these

offenders’ work product. Fiscal restraint, ambivalence, professional

territoriality, and momentary technological fads seem to thwart the

efforts to hold child molesters accountable. In some respects, we

are unwilling to accept that they are beyond redemption.

Before I complete my testimony, I must share with you some of

the cases which reflect my words. C. is committed as a sexually violent person, but this was not initially the case. C. was determined

to fit the criteria necessary to be considered a sexually violent person, but a judge released him after reviewing carefully the evidence, citing that the psychologist only considered him a significant

risk to re-offend. This evaluator failed to understand the meaning

of a significant probability and substantial probability. C. was released.

3

Congresspersons, I cannot describe the contempt in the eyes of

his neighbors as we notified the community, but our supervision

plan worked, and within 72 hours of his mandatory release, C. was

in custody.

C. is a two-strike sex offender with three victims. While incarcerated, he had major conduct reports for sexual inappropriateness,

failed treatment, ordained himself a minister and married another

inmate. And this is merely a routine case.

These offenders come from various backgrounds. Like David

Spanbauer, some are career criminals who have spliced sexual deviance into their love map. They are young, middle-aged, and some

are seniors who use their charisma and vulnerability to entice children. Most but not all control their impulses until they can prey

on their victims’ trust and vulnerability. Some are psychopathic

predators, and if treated, they have often acquired new and refined

skills.

From his prison cell, one of my clients assumed the identity of

a 12-year-old female and communicated as a pen pal with other

young women. Another became a choir director without the church

verifying his history. Another ingratiated himself with the family

of a young man, attired him in an orange t-shirt with a Kid-ForRent logo, and took him to a theme park. These are not just random events.

Briefly, there is a case which fits Congressman Green’s legislation. M. was convicted of obtaining child pornography. He would

enter the District Attorney’s Office using his computer to download

this material. He would cull through files, fantasize and masturbate. He was convicted on both Federal and State charges.

While in treatment, he confided that he had molested at least 23

young men and raped four women. He received a polygraph which

reflected deception. But he successfully completed both Federal parole and State probation. However, he has been charged once again

with possession of child pornography. If convicted, he will receive

less than 15 years and will be required to merely register as a sexual offender for life.

Congresspersons, you cannot imagine what it is like when my

home phone rings during morning’s earliest hours. We can no

longer rely on psychological interventions and testing to protect our

children.

As I mentioned, I’m a parent and a citizen. We must not allow

financial and legal expedience, professional territoriality and complacence to blind our judgment. H.R. 2146 must become a reality.

In fact, you must find the means to expand the scope of this bill

and encourage the States to uniformly implement similar legislation incarcerating these offenders for life without the complexities

of civil commitment.

I sincerely believe that it is necessary to do so when these crimes

involve coercion, force and violence. Child molesters should never

be released if they fail or refuse treatment. And in the case of child

sexual homicide, they should be confined forever.

This act is a start in the right direction. Congressman Green deserves our recognition and support. Enacting this bill not only acknowledges his wisdom, but recognizes that children are America’s

most precious resource.

4

Thank you for allowing me this opportunity. It is an honor. I will

gladly respond to any of your questions.

[The prepared statement of Mr. Fusfeld follows:]

PREPARED STATEMENT OF ROBERT FUSFELD

5

6

Mr. SMITH. Mr. Fusfeld, thank you for your testimony.

Mr. FUSFELD. Thanks.

Mr. SMITH. I unfortunately am going to have to leave, so I am

going to leave this hearing in the capable hands of Mark Green of

Wisconsin and Bobby Scott of Virginia, and they may have a couple

of questions for you.

I am also, without objection, going to make my opening statement a part of the record, and in just a minute, Mr. Green will recognize himself for purposes of making an opening statement, and

Mr. Scott as well.

[The prepared statement of Mr. Smith follows:]

PREPARED STATEMENT OF THE HONORABLE LAMAR SMITH, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF TEXAS

Pursuant to notice, the Subcommittee on Crime will markup H.R. 2146, the ‘‘Two

Strikes and You’re Out Child Protection Act.’’ H.R. 2146, introduced by Rep. Mark

Green, a member of this Subcommittee, would establish a mandatory sentence of

life imprisonment for twice-convicted child sex offenders.

Any person convicted of a ‘‘Federal sex offense’’ against a person under the age

of 18 who has been previously convicted of a similar offense would be subject to a

mandatory minimum sentence of life imprisonment.

The term ‘‘Federal sex offense,’’ as defined in the bill, includes various crimes of

sexual abuse committed against children, and the interstate transportation of minors for sexual purposes.

According to the United States Department of Justice’s Bureau of Justice Statistics, since 1980, the number of prisoners sentenced for violent sexual assault other

than rape increased by an annual average of nearly 15 percent—faster than any

other category of violent crime. Of the estimated 95,000 sex offenders in state prisons today, well over 60,000 most likely committed their crime against a child under

18.

Compounding this growing problem is the high rate of recidivism among sex offenders. A review of frequently cited studies of sex offender recidivism indicates that

offenders who molest young girls repeat their crimes at rates up to 25 percent, and

offenders who molest young boys, at rates up to 40 percent. Moreover, the recidivism rates do not appreciably decline as offenders age.

Another factor that makes these numbers disturbing is that many serious sex

crimes are never even reported to authorities. National data and criminal justice experts indicate that sex offenders are apprehended for a fraction of the crimes they

actually commit. By some estimates, only one in every three to five serious sex offenses are reported to authorities and only 3 percent of such crimes ever result in

the apprehension of an offender.

7

Studies confirm that a single child molester can abuse hundreds of children. It

goes without saying that any attack is devastatingly tragic for the victim and will

leave a scar that will be carried throughout life. The effects of sexual abuse resonate

from victim, to family, and continues to weave its way through the fabric of our

communities.

Children have the right to grow up protected from sexual predators and free from

abuse. H. R. 2146 would protect America’s children by permanently removing the

worst offenders from our society—those who repeatedly victimize children.

I would like to thank Mr. Green for sponsoring this legislation, and I urge my

colleagues to support the bill.

Mr. SMITH. I want to thank you all and apologize for having to

leave.

By the way, we got off to such a fast start a minute ago, I didn’t

officially recognize, although it should be clear from the notice and

from your testimony, that this is, in fact, a legislative hearing on

H.R. 2146, the Two Strikes and You’re Out Child Protection Act of

2001, which was introduced by Mr. Green.

Mr. SMITH. We appreciate his initiative in introducing this legislation. We appreciate the testimony of all four witnesses as well.

At this point, I will both recognize Mr. Green to chair the hearing and to ask any questions, after which Mr. Scott will be recognized to ask questions as well.

Mr. GREEN. [Presiding.] Thank you, Mr. Chairman. And before

you leave, I want to thank you also for your indulgence and flexibility in scheduling the hearing today. I appreciate it very much.

I will recognize myself for a few minutes so that I can make my

opening statement, which I will submit, and then I will recognize

my colleague, Congressman Scott.

Good evening. Obviously I am Congressman Green, and as you

know, the Subcommittee is holding a hearing today on legislation

that I have proposed but which is truly bipartisan in nature. We

have good support from both sides of the aisle. It is called H.R.

2146, the Two Strikes and You’re Out Child Protection Act.

I would join Congressman Smith in welcoming our witnesses.

You have been very patient to come out here not once, but twice

in some cases, and also to wait around today as we debated important legislation on the floor.

Among the witnesses we have today is Mr. Marc Klaas of the

Klaas Kids Foundation. Marc is a nationally recognized advocate

for children and victim rights and a leader in the fight to protect

our children from criminals. As many may recall, Marc’s daughter

Polly was tragically taken from the world by one of the repeat offenders that we are discussing today.

Bob Fusfeld, who you’ve just heard from, is a probation and parole agent with the Wisconsin Department of Corrections. I welcome you and thank you for coming out and testifying today. Bob

has a wealth of firsthand experience in dealing with the types of

criminals that prey on our children.

Polly Frank Sweeney hails from Richmond, Virginia and is the

mother of two children who had the terrible misfortune of coming

into contact with a convicted rapist and child molester. She was

kind enough to come here today to share her personal story, and

I want to offer my personal thanks for that.

I think the best way to illustrate the need for this legislation is

to tell a brief story which Bob Fusfeld alluded to.

8

In January 1960, in Green Bay, Wisconsin, my hometown, a 19-

year-old man named David Spanbower forced his way into a home

and tied a 16-year-old baby-sitter to a bed. He raped her at knifepoint, actually using the knife to tear away her clothes. When the

homeowner returned, Spanbower shot the man in the face.

Based upon multiple convictions in several counties, Spanbower

was sentenced to 70 years in prison. Believe it or not, in May 1972,

Spanbower was freed on parole. In a matter of months, he raped

a young hitchhiker and was sentenced to merely another twelve

years in prison.

In 1991, he was again released on parole. Just 3 years later, a

homeowner near Appleton caught him trying to break into a home,

tackled him, and called the police. Spanbower’s car contained burglary tools and materials similar to that used in multiple sexual assaults of a woman and a girl in their homes in October and November of that year. The following week, he confessed to raping and

killing a 12-year-old, a 10-year-old, as well as a 21-year-old adult.

On December of that year, he pleaded guilty or no contest to 18

felonies in five counties.

Now, every one of us here today would agree, Spanbower was

and is a monster, a truly sick individual, and I can’t help believe,

however, that we as elected officials must bear at least a little responsibility for the continued assaults upon women and children by

people like Mr. Spanbower. We had him, we had them, behind

bars, and yet we turned them loose.

Overwhelming evidence shows us that repeat molesters like

Spanbower literally cannot stop themselves. Spanbower’s multiple

attacks upon the most vulnerable were in so many ways absolutely

predictable.

Many States like Wisconsin have sexual predator laws, as Mr.

Fusfeld has alluded to, in an effort to deal with the David

Spanbowers of the world. These laws permit correction officials to

extend the period of custody for certain offenders. However, getting

the necessary psychiatric reports to declare someone a predator is

often difficult, and in any case, as so many States are learning the

hard way, sexual predators must still be released eventually, and

even though they are very likely to re-offend.

In fact, just the other night, ABC News aired an hour-long program called Predators Among Us detailing the failure of sexual

predator laws to prevent the release of many convicted sex offenders from a Massachusetts treatment facility. This program detailed

several instances where sexual offender laws and civil incarceration laws failed over and over again.

In one disturbing case committed by someone by the name of Nathaniel Barjona, Mr. Barjona was released with the agreement that

he would relocate to another State. He did, and once again went

on a sexual molestation spree.

The only true effective answer comes from this legislation, and

it says, very simply, that if someone commits one of a modest list

of sex crimes against kids, they are arrested and convicted and

serve their time, if after they are released they do it yet again, they

will go to prison for the rest of their lives, no more chances, no

more questions; most importantly, no more victims.

9

I will summarize my testimony quickly so that we can get to our

vote.

This legislation covers seven of the most serious Federal sex

crimes—— Mr. SCOTT. Will the gentleman yield?

Mr. Fusfeld has to leave, so if you’re going to ask any questions,

we should do that before he leaves.

Mr. GREEN. Sure. What I will do at this point, I will suspend my

opening statement and merely submit it for the record and recognize Mr. Scott, if you would like to begin with questions for Mr.

Fusfeld.

Mr. SCOTT. I will withhold my opening statement until after we

leave to vote. I just had a couple of questions for Mr. Fusfeld.

In your testimony, you indicate that these crimes involve coercion, force and violence. What is the penalty for first offense for

sexual offenses involving force and violence?

Mr. FUSFELD. In the State of Wisconsin, first-degree sexual assault of a child I think carries a maximum confinement period in

the Wisconsin State prison system of 40 years, and a 20-year period of extended supervision. So there is a total of 60 years.

Mr. SCOTT. Should this penalty apply when the offenses are misdemeanors?

Mr. FUSFELD. I’m sorry, Mr. Scott, I do not believe that I understand what you just asked. Could you just repeat it?

Mr. SCOTT. If the offense is a misdemeanor for which the normal

offense penalty would be 1 year or less, should this law apply in

the case of a misdemeanor?

Mr. FUSFELD. Yes. Mr. Scott, in my opinion, any sexual assault,

whether it be toward a child or an adult victim, if it is involving

any form of coercion, violence or force, and it is pled down to a misdemeanor, in my personal opinion, that in itself is a crime.

I do not believe anyone would prosecute someone—or reduce a

forcible sexual assault to a misdemeanor charge.

Mr. SCOTT. What if the original offense were a misdemeanor for

which force was not involved?

Mr. FUSFELD. I do not believe that in that case we ought to apply

a lifetime period of supervision to a person who commits one sexual

assault which is a misdemeanor. However, I do believe that if there

are multiple or habitual offenses of a misdemeanor nature where

force is involved or some degree of coercion is involved, they should

be incarcerated for the remainder of their days.

Mr. SCOTT. And if force is not involved—for example, a 19-yearold having sex with a 15-year-old, consensual sex—should a

life——

Mr. FUSFELD. I believe——

Mr. SCOTT [continuing]. Should a life imprisonment be imposed?

Mr. FUSFELD. No, not in that instance, I do not believe that.

Mr. SCOTT. Should the bill be amended to only affect those for

which the offenses are felonies?

Mr. FUSFELD. I believe the bill should reflect that it should be

lifetime supervision for violent, coercive, or forcible sexual assaults

or habitual re-offending.

Mr. SCOTT. And if the offense is a mere misdemeanor, although

it involves sex or sexual activity, but the offense is just a misVerDate 11-MAY-2000 12:11 Oct 16, 2001 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\073101\74237.000 HJUD2 PsN: HJUD2
10

demeanor, should second offense—it’s a fairly simple question—

should second offense apply for, in that case, for life imprisonment?

Mr. FUSFELD. No, I would not—I would not agree that that

should be life imprisonment.

Mr. SCOTT. I don’t have further questions.

Mr. GREEN. Thank you.

At this point, what I would like to do is adjourn until our votes

are over. I would also like to welcome Ms. Lawrence. I didn’t

mean—I purposefully overlooked you in a way because I was going

to allow Congressman Scott to welcome you. But as we’ve gotten

a little disjointed here, I want to welcome you for coming and I appreciate you traveling here today.

Mr. SCOTT. Actually, I would like to welcome Ms. Sweeney, too,

since she is the one from my district.

Mr. GREEN. You are certainly entitled.

Mr. SCOTT. Thank you.

Mr. GREEN. At this point—thank you, Mr. Fusfeld. What we will

do is adjourn so that we can cast our votes. We should be back in

20 minutes to a half an hour, and if we can, we’ll resume at that

point.

Thank you for your indulgence.

Mr. FUSFELD. Thank you.

[Recess.]

Mr. GREEN. I call the hearing back into order, and welcome Mr.

Schiff and Mr. Chabot for attending, and welcome.

To bring you up to speed, we in a very disjointed way began this

hearing, had Mr. Robert Fusfeld testify because he had to catch a

flight, and hopefully he’s well on his way to the airport at this

time. I began an opening statement which I will finish now, then

I’ll recognize Mr. Scott for his opening statement, and then open

it up to others for their statements, and then we will proceed back

with the testimony of the witnesses. So I will finish up my statement at this point and then turn it over.

Previously in my opening statement, we were talking about the

types of crimes that are covered by this legislation. What I think

is also important, though, in recognizing the need for this legislation is to look at some of the numbers that are presented by those

who do prey upon our children.

One study done by Emery University just a few years ago suggested that the average child molester will commit 300 or more

acts of child molestation during his lifetime.

There was another study published just last year in a journal

called Sexual Abuse, a journal of research and treatment, in examining the history of sexual offenders, admitted sexual offenders in

Colorado, they discovered that an average of—those who were convicted and serving time for sexual offenses had an average of 165

victims each.

So in any case, obviously, even though the number of offenders

is relatively small, the damage they cause is, indeed, terrible, destroys lives and communities and families.

What I would like to do at this time is with unanimous consent

submit for the record a letter that I have from Ms. Shawna Brewer,

who unfortunately could not be here today. She was going to testify

11

previously when this bill was scheduled for a hearing, and, because

of conflicts with that date, cannot make it.

[The material referred to can be found in the Appendix.]

Mr. GREEN. So I am going to submit that for the record with

unanimous consent and just close up my statement by saying that

my home State of Wisconsin already has a two strikes and you’re

out law for sexual offenders. It was passed several years ago, and

this law that we are examining today is built upon that.

I do agree with the testimony of Mr. Fusfeld that it would make

a lot of sense, it would be admirable if we could get States to pass

uniform laws. Obviously the vast majority of such offenses are

prosecuted in State court, not in Federal court.

With that, I will now recognize Congressman Scott for any opening statements that he may have.

[The prepared statement of Mr. Green follows:]

PREPARED STATEMENT OF THE HONORABLE MARK GREEN, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF WISCONSIN

Good afternoon, I am Mark Green and today the Crime Subcommittee is holding

a hearing on legislation that I have proposed. Of course, let me begin by thanking

Chairman Lamar Smith for scheduling this hearing on H.R. 2146 the ‘‘Two Strikes

You’re Out Child Protection Act.’’

I’d like to welcome the witnesses and thank them for agreeing to testify today.

Among them is Marc Klaas of the KlaasKids Foundation. Marc is a nationally recognized advocate for children and victims’ rights, and a leader in the fight to protect

our children from criminals. As many may recall, Marc’s daughter, Polly, was tragically taken from the world by one of the repeat offenders we will discuss today.

Robert Fusfeld is a probation and parole agent with the Wisconsin Department of

Corrections Sexual Offender Intensive Supervision Team. Mr. Fusfeld is based in

Green Bay, WI and has a wealth of firsthand experience in dealing with the types

of criminals that prey on our children. Polly Franks Sweeney hails from Richmond,

VA, and is the mother of two children who had the terrible misfortune of coming

into contact with a convicted rapist and child molester. She was kind enough to

come here today to share her personal story.

Perhaps the best way to illustrate the need for my legislation is to tell a brief

story. In January 1960, in Green Bay, a 19-year-old man named David Spanbauer

forced his way into a home and tied a 16 year-old babysitter to a bed. He raped

her at knifepoint, actually using the knife to tear away her clothes. When the homeowner returned, Spanbauer shot the man in the face. Based on multiple convictions

in 3 counties, Spanbauer was sentenced to 70 years in prison.

Believe it or not, in May 1972, Spanbauer was freed on parole. In a matter of

months, he raped a young hitchhiker, and was sentenced to another 12 years in

prison.

In 1991, Spanbauer was again released on parole. Just three years later, a homeowner near Appleton caught Spanbauer trying to break into a home, tackled him

and called police. Spanbauer’s car contained burglary tools and materials similar to

those used in the sexual assaults of a woman and girl in their homes on Oct. 20

and Nov. 5. The following week Spanbauer confessed to raping and killing a 12 year

old and a 10 year old girl (as well as a 21 year old adult). On Dec. 8th of that year

Spanbauer pleaded guilty or no contest to 18 felonies in 5 counties.

Of course, Spanbauer was and is a monster, a truly sick individually. I can’t help

but believe that we, as elected leaders, must bear at least a little responsibility for

the continued assaults upon women and children by people like Spanbauer. We had

them safely behind bars and yet we turned them loose. Overwhelming evidence

shows us that repeat molesters like Spanbauer literally cannot stop themselves. His

multiple attacks upon the most vulnerable were, in so many ways, predictable.

Many states, including my own state of Wisconsin, have enacted ‘‘Sexual predator’’ laws in an effort to deal with the David Spanbauer’s of the world. These laws

permit correction officials to extend the period of custody for certain offenders. However, getting the necessary psychiatric reports to declare someone a ‘‘predator’’ is

often difficult. And, in any case, as so many states are learning the hard way, sexual predators must still eventually be released . . . even though they will very likeVerDate 11-MAY-2000 12:11 Oct 16, 2001 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 G:\WORK\CRIME\073101\74237.000 HJUD2 PsN: HJUD2
12

ly re-offend. The sexual predator laws are a good tool in many cases, but they are

simply inadequate.

In fact, ABC News recently aired an hour-long program, titled ‘‘Predators Among

Us,’’ detailing the failure of sexual predator laws to prevent the release of many

dangerous convicted sex offenders from a Massachusetts treatment facility. This

program detailed several instances where offender registration laws and civil incarceration laws failed first, to keep these monsters locked up and then, upon their release, to notify the community to which they moved. In one particularly disturbing

case, habitual sex offender Nathaniel Bar-Jonah was released with the agreement

that he re-locate to another state. Mr. Bar-Jonah moved to Montana, where he was

recently apprehended on charges that he molested three boys and with first-degree

murder in the death of a little boy he allegedly cannibalized.

The only truly effective answer comes from a simple principle: repeat child molesters must be locked away for life. My bill, H.R. 2146, the Two Strikes You’re Out

Child Protection Act, would accomplish that—at least for repeat molesters who commit certain federal sex crimes against kids.

H.R. 2146 states that if someone commits one of a modest list of federal sex

crimes against a child (or a comparable state crime), and then, after serving out his

sentence, commits yet another such crime, he’ll be sent to prison for the rest of his

life. No more chances and, more importantly, no more victims.

Let me be quick to add that this legislation is not just another effort to ‘‘pile on’’ in being tough on crime. It has been carefully tailored and narrowly focused. It does

not federalize any state crimes, nor does it create any new federal crimes.

I also want to point out that this legislation was the subject of a Crime Subcommittee hearing and was twice passed by the House, all during the 106th Congress. Unfortunately, the Senate failed to act upon this legislation.

This legislation specifically covers seven of the most serious federal sex crimes including aggravated sexual abuse, sexual abuse of a minor or ward, sexual abuse resulting in death, and selling or buying of children for the purpose of engaging in

prostitution.

This legislation focuses on a relatively small number of terribly sick individuals

who cause tremendous devastation—devastation all out of proportion to their numbers. This devastation can be measured in two ways.

First, in the sheer number of victims. Child molesters are four times more likely

than other violent criminals to recommit their crime. A typical molester will abuse

between 30 and 60 children before they are arrested—as many as 380 children during their lifetime. A study conducted by Emory University found that 453 sex offenders admitted to molesting more than 67,000 children in their lifetime—a num- ber also supported by Department of Justice research.

Yet another study, published in the April 2000 issue of Sexual Abuse: A Journal

of Research and Treatment, detailed how a sample of sex offenders in Colorado admitted, at first, to having only an average of two victims and committed seven offenses. However, after taking a polygraph, those numbers increased to an average

of 165 victims and committed 511 offenses.

And America’s response? According to the KlaasKids Foundation, the average convicted child molester spends only 2 years and 9 months in prison.

The second and most important way to measure the devastation of these crimes

is by the damage caused to children, to families, and to communities. Every victim

is an innocence stolen, and in too many cases, a life destroyed. Today, we are going

to hear from two witnesses who unfortunately are all too familiar with the devastating effects of these sex crimes. To further drive this point home, I have a letter

from Ms. Shawna Brewer of Fort Collins, CO, that I request unanimous consent to

include in the record. In her letter, Ms. Brewer details her profoundly sad experience both as a victim herself when she was a young girl and as the mother to two

daughters who were victimized by a child molester. Severe emotional trauma, attempts at suicide and drug addiction are just a few of the tragic consequences

Shawna and her family have had to cope with. Their struggle is ongoing and they

should be in all our prayers.

The State of Wisconsin already has a Two Strikes law, which I authored and

which went into effect in 1998. Other states are currently considering plans for

similar statutes.

Please note this is not the first ‘‘two strikes’’ legislation Congress that has considered. In 1996, Congress enacted the Amber Hagerman Child Protection Act, which

was introduced by Congressman Frost. This bill created a ‘‘two strikes’’ law for one

specific crime—aggravated sexual abuse. It was, and is, a good bill, and had I been

here at that time I would have supported it.

I believe H.R. 2146 improves and expands on the good work of Congressman

Frost. It recognizes that repeat molesters, not just those who fall under the crime

13

of ‘‘aggravated sexual abuse,’’ must be stopped before they claim even more victims,

and before their crimes can escalate. I am happy to report that H.R. 2146 enjoys

the support of Congressman Frost.

Ladies and gentlemen, the evidence shows that each repeat molester represents

literally hundreds of victims with shattered lives. We can break the chain of violence with simple, straightforward proposals like this bill.

I look forward to hearing the testimony of our witnesses and I hope that everyone

in this room today will take to heart what they have to say. With that, I yield back

the balance of my time.

Mr. SCOTT. Thank you, Mr. Chairman. I am pleased to join you

in convening a hearing on Two Strikes and You’re Out Child Protection Act of 2001, although I am opposed to the bill. While the

title of the legislation makes it sound good, I’m not convinced that

it does good.

The sole penalty under the bill for any sex crime against a child

is a mandatory minimum sentence of life imprisonment. Mandatory

minimum sentences have been studied extensively and been shown

to be ineffective in preventing crime, distorts the sentencing process, discriminates against minorities in their application, and they

waste money.

In a study report entitled Mandatory Minimum Drug Sentences,

Throwing Away the Key or the Taxpayers Money, the Rand Corporation—the Rand Commission concluded that the mandatory

minimum sentences were less effective than either discretionary

sentencing or drug treatment in reducing drug-related crime, and

far more costly than either.

In a letter of March 17th, 2000, a letter to Judiciary Committee

Chairman Hyde, the Judicial Conference of the United States reiterated for the twelfth time its opposition to mandatory minimum

sentencing schemes, noting that they, quote, ‘‘severe distort and

damage the Federal sentencing system, undermine the sentencing

guideline regime established by Congress to promote fairness and

proportionality, and destroy honestly in sentencing by discouraging

charge—by encouraging charge, in fact, plea bargains.’’

In both the Judicial Center in its report entitled The General Effects of Mandatory Minimum Prison Terms, A Longitudinal Study

of Federal Sentences Imposed, and the United States Sentencing

Commission in its study entitled Mandatory Minimum Penalties in

the Federal Criminal Justice System, found that minorities were

substantially more likely than whites under comparable circumstances to receive mandatory minimum sentences.

Chief Justice Rhenquist has spoken often and loudly about mandatory minimum sentences, and I quote from him:

‘‘Mandatory minimums are perhaps a good example of a law of

unintended consequences. There is a respectable body of opinion

which believes that these mandatory minimums impose unduly

harsh punishment for first-time offenders, particularly mules who

played only a minor role in drug distribution schemes.’’

‘‘Be that as it may, the mandatory minimums have also led to

inordinate increase in the Federal prison population and will require huge expenditures to build new prison space. Mandatory

minimums are frequently the result of floor amendments to demonstrate emphatically that legislators want to, quote, ‘get tough on

crime.’ Just as frequently, they do not involve any careful considerVerDate 11-MAY-2000 12:11 Oct 16, 2001 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\073101\74237.000 HJUD2 PsN: HJUD2
14

ation of the effect they might have on the sentencing guidelines as

a whole.’’

That’s Chief Justice Rhenquist.

Like much of the crime legislation we consider at the Federal

level, this bill would affect very few cases, and the overwhelming

majority of those cases involve Native Americans. In 1999, for example, the United States Sentencing Commission data indicates

that there were three non-Native American cases which would

have fallen under the provisions of this bill. There is no evidence

that there is any particular problem with sex crimes against children in the Native American community, or that the tribes and

States are so unconcerned about sex crimes against children or

that the current Federal laws covering sex crimes against children

are so inadequate as to require the Draconian approach in this bill.

Law professor and criminologist Frank Zimmering of the University of California assessed this bill, and here is part of what he had

to say:

‘‘H.R. 2146 is a textbook case of how not to make changes in Federal criminal code. It uses a huge mandatory minimum penalty—

life imprisonment—for a wide variety of Federal sex crimes as long

as the victim was under the age of 18 and the defendant has a

prior sex offense. It sweeps together felonies and misdemeanors, 7-

year-olds and 17-year-old victims, violent and consensual acts, sexual penetration and sexual contact, into a single compulsory life

sentence for the defendant who may be making his first appearance in a Federal court.’’

‘‘It second-guesses the United States Federal Sentencing Commission without any factual evidence that the current policy on repeat offenders of the many different types covered in this legislation is in any respect deficient.’’

‘‘The sponsors of the bill have committed two sins against rational legislative process. First, they are proposing a solution without

identifying a problem. Were there ten cases in the Federal system

last year where injustice resulted from the current policy? Was

there a single case? What sorts of persons are convicted of the very

different Federal sex offenses covered by H.R. 2146 and what happens to them now?’’

These are—he goes on and concludes that there are many unanswered questions in the marketing of H.R. 2146. Excuse me. ‘‘There

are not unanswered questions in the marketing of H.R. 2146; there

are unasked questions.’’

Mr. Chairman, I would like to make his entire statement a part

of the record; also submit letters issued by the American Civil Liberties Union, the National Association of Criminal Defense Attorneys, and Families Against Mandatory Minimums stating their

concerns about the arbitrary and disproportionate impact on vastly

differing offenders for vastly differing offenses.

This bill in its essence was considered by the last Congress, and

I would like to submit for the record a letter issued by the—to that

Congress by the Department of Justice stating its concern about

the disproportionate impact for differing sentences and the absence

of a tribal exemption as we did with the three-strikes laws.

[The material referred to can be found in the Appendix.]

15

Mr. Chairman, we already have a mandatory life sentence for aggravated sex crimes against children, and to the last Congress, we

directed the Sentencing Commission to look at enhancing sentences

for repeat sex offenses. To that extent, to the extent that adjustments are needed, the Commission has already done it. As of—I

just a little more, Mr. Chairman—as of May of this year, the guideline sentences were increased for repeat offenses by more than 77

percent.

The difference in that approach and what this bill contemplates

is that the Commission changes were done through a reasoned approach with proportionality of offenses rather than treating sexual

penetration by force and outside clothing sexual contact as exactly

the same.

I would like to have a letter from the Commission detailing these

changes made part of the record, and before we go off on a tangent

and set sentences indiscriminately, we should give these guidelines

a chance to work.

Thank you, Mr. Chairman.

And I would also ask unanimous consent that we ask the Department of Justice to give us a cost estimate of what this bill would

cost in terms of prison construction pursuant to the—I don’t have

the Code section, but there’s a Code section that allows us to get

that information.

Mr. GREEN. First off, without objection, your request for statements made part of the record will be done.

[The material referred to can be found in the Appendix.]

Mr. GREEN. And we will certainly have time between this hearing and going to the full Committee to get such a cost estimate

from the Department of Justice if they’re able to do that.

At this time, I would like to recognize Mr. Chabot if he has any

opening statement.

Mr. CHABOT. Thank you, Mr. Chairman. I will be very brief in

my opening statement.

I would first like to recognize and thank Mr. Klaas for being

here. He has testified several times on the Crime Subcommittee

and I have been on this in the 7 years that I’ve been in Congress,

and his testimony has always been very moving and excellent and

needs to be heard by this Committee, and we want to thank you

for your participation in the past and for being here today.

I have oftentimes used your tragedy and offered it as an example

as to why predators, monsters, whatever you want to call scum like

Davis, people like that—it’s a perfect example of when we’ve got

them locked up for a crime, that they ought to do the full term and

not be let out early to victimize other people like your daughter.

And it’s a terrible tragedy and we want to thank you for your courage to continue to testify and speak out.

I heard my—the gentleman from Virginia, and he’s a fine gentleman and somebody who I have a lot of respect for, but I very

much disagree on a lot of the points he made, particularly with respect to whether or not giving people two strikes or three strikes

as we had in the past and they’re out, meaning they’re locked up

forever so that they can’t victimize our children, whether or not

those kinds of laws make sense. I think they do make sense if

they’re enforced and if we really mean it when we say that someVerDate 11-MAY-2000 12:11 Oct 16, 2001 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\073101\74237.000 HJUD2 PsN: HJUD2
16

body commits a second offense or a third offense and we lock them

up and throw away the key. If we actually do that, these people

won’t be victimizing the children who are the most vulnerable people in our society.

And as the Chairman mentioned in his opening statement, when

these people are caught and convicted of one or two offenses, that’s

only the tip of the iceberg. They’ve generally committed many,

many others, even in the hundreds of other children have been victimized.

And so this is I think a responsibility that we as legislators have

to protect those that are most vulnerable, and I want to thank the

Chairman for putting forth good legislation. I think this is an example of one that we ought to take up seriously, and I hope that

we ultimately pass it into law.

I want to thank all the members of the panel here this evening.

And I also want to perhaps apologize that there aren’t more of us

here, but as this got put off during the course of the day and everything, I’m sure our colleagues that aren’t here will read the testimony that you’re giving. So just the fact that there are only a few

of us here doesn’t mean that we won’t all get the testimony because

we will.

So thank you for being here and I yield back the balance of my

time.

Mr. GREEN. Mr. Schiff, any opening comments?

Mr. SCHIFF. Yes. Thank you, Mr. Chairman. I will be very brief.

I also wanted to add my voice of thanks to the witnesses for

making the trip here today to share the benefit of your experience

and insight on this bill. I had the honor to work with Mr. Klaas

in California on legislation involving the sale of murder memorabilia and found him to be completely professional and committed

and dedicated. And it’s a pleasure to see you again—— Mr. KLAAS. Thank you.

Mr. SCHIFF [continuing]. Appreciate your time before the Committee today, and I thank the Chairman for scheduling the hearing.

Mr. GREEN. Thank you.

Back to the witnesses. We can hear from Mr. Marc Klaas, Klaas

Kids Foundation.

STATEMENT OF MARC KLAAS, KLAAS KIDS FOUNDATION,

SAUSALITO, CA

Mr. KLAAS. Thank you, Mr. Chairman, and Members of the Committee. Thank you for allowing me to testify on behalf of H.R. 2146,

the Two Strikes and You’re Out Child Protection Act.

In 1998, I testified with Mr. Green on the Wisconsin version of

the Two Strikes and You’re Out Child Protection Act. Because of

Mr. Green’s visionary leadership, that piece of legislation was

signed by Governor Thompson without amendment and is now the

law of the land in Wisconsin. Thank you, Mr. Green, for your continued leadership on this important issue.

The new millennium offers us opportunities to correct the mistakes of the past and move into the future with a balanced set of

priorities that will afford every child the opportunity to grow up

into a productive and positive member of society. We are approachVerDate 11-MAY-2000 12:11 Oct 16, 2001 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\073101\74237.000 HJUD2 PsN: HJUD2
17

ing that responsibility proactively on many fronts; however, as it

applies to the sexual abuse and exploitation of children, we are failing in our duty to protect children and punish those who would

abuse them.

We can all take pride in the fact that violent crime statistics continue to fall. There is no question that the average citizen is safer

on the streets today than in 1993 when my daughter Polly was kidnapped and murdered. Many reasons have been offered for the declining crime statistics, including demographic shifts, a strong

economy, and the decreased popularity of crack cocaine.

Unfortunately, these are not the factors that impact child sexual

exploitation. These tend to be crimes of preference committed by

individuals who are either sexually stimulated by or give no concern for the welfare of young children.

One has only to look at the ever-increasing number of registered

sex offenders who fall under the care, custody and control of correction agencies or the pitifully inadequate prison sentences served by

child sex offenders to understand that children are more vulnerable

to sexual exploitation today than they were in 1993. In fact, since

1995, the number of registered offenders has risen from 234,000 to

over 380,000. I find that very alarming.

This carefully written and narrowly targeted piece of legislation

deals with two important issues that resurface whenever legislation that addresses accumulated crimes are debated: false accusations and repeated patterns of behavior.

We have all heard the stories of men, oftentimes fathers, who

have been accused of child sexual abuse by vindictive ex-spouses.

In certain circles, such tales have achieved the status of urban legend. Personally, I don’t know if such stories are true or not, but

I do know this: H.R. 2146 directly addresses this issue.

Certainly one can be falsely accused and possibly even falsely

convicted of such crimes once, but not twice. By mandating life in

prison only after a second conviction, one can be sure that our

criminal justice system, with its assemblage of checks and balances, will protect innocent persons from this unfortunate but necessary fate.

H.R. 2146 targets two very specific types of offenders: pedophiles

and psychopaths.

By definition, a pedophile is one who has a preference for having

sex with children. If an individual pursuing sex with a child has

been previously convicted of a sex crime against a child and the

threat of another conviction and possible prison time is an inadequate control mechanism, then that person is a pedophile by their

own definition and must be removed from society.

A psychopath, on the other hand, is an individual who pursues

instant self-gratification without consideration for the consequences

of his or her action. Like the pedophile, a psychopath will commit

crimes with impunity until stopped.

Pedophiles and psychopaths pose great threat to the safety of our

children because they cannot control their actions, and H.R. 2146

offers a control and deterrence that cannot be ignored.

Mr. Chairman, Members of the Committee, there is not a documented case of a pedophile or psychopath ever having been cured.

The sad reality is that they re-offend over and over and over again

18

until they are removed from society once and for all. State hospitals throughout America have spent decades pursuing cures for

pedophilia and psychopathy and they have failed. Inevitably, the

pedophile and psychopath will strike again and the victims will accumulate.

As we know, David Spanbauer is a perfect example. He symbolizes a typical scenario in 21st Century America: sexual perverts living life sentences on the installment plan, spinning through a turnstile system of justice in which their crimes become bolder, more

dangerous, and more predatory, until a wake of destruction and

young victims shatters the tranquil countryside. H.R. 2146 is an

important piece of a very complex puzzle that will have to be painstakingly assembled until there are no more David Spanbowers.

Of course, we have all heard about the abuse excuse wherein

convicted sex offenders universally testify that their own decline

into depravity began with their victimization as a child. I have no

idea again if the individual offenders are telling the truth or not,

but I do believe that such testimony is instructive if we are going

to create policy that will positively impact future generations.

The statistics underscore the need to take decisive steps to halt

the destructive pattern of recidivist sex offenders against children.

In no uncertain terms, H.R. 2146 can serve as a model legislation

and deliver the message that America will no longer tolerate aberrant behavior and sex crimes against our children. If you don’t

learn from your first crime, you will not be given the opportunity

to justify or excuse your third crime.

Thank you for your time.

[The prepared statement of Mr. Klaas follows:]

PREPARED STATEMENT OF MARC KLAAS

Good afternoon Mr. Chairman and members of the committee, thank you for allowing me to testify on behalf of H.R. 2146, Representative Marc Green’s ‘‘Two

Strikes and You’re Out Child Protection Act’’.

In 1998 I testified with Mr. Green on the Wisconsin version of the Two Strikes

and You’re Out Child Protection Act. Because of Mr. Green’s visionary leadership,

that piece of legislation was signed by Governor Thompson without amendment and

is now the law of the land in Wisconsin. Thank you Mr. Green for your continued

leadership on this important issue.

The new millennium offers America an opportunity to correct the mistakes of the

past and move into the future with a balanced set of priorities that will afford every

child the opportunity to grow up into a productive and positive member of society.

We are approaching that responsibility proactively on many fronts. However, as it

applies to the sexual abuse and exploitation of children, we are failing in our duty

to protect children and punish those who would abuse them.

We can all take pride in the fact that violent crime statistics continue to fall.

There is no question that the average citizen is safer on the streets today that in

1993 when my daughter Polly was kidnapped and murdered. Many reasons have

been offered for the decline crime statistics including demographics, a strong economy and the decreased popularity of crack cocaine. Unfortunately, these are not the

factors that impact child sexual exploitation. These tend to be crimes of preference,

committed by individuals who are either sexually stimulated by or give no concern

for the welfare of young children.

One has only to look at the ever-increasing number of registered sex offenders

who fall under the care, custody and control of correction agencies or the pitifully

inadequate prison sentences served by child sex offenders to understand that children are more vulnerable to sexual exploitation today than they were in 1993.

This carefully written and narrowly targeted piece of legislation deals with two

important issues that resurface whenever legislation that address accumulated

crimes are debated: false accusations and repeated patterns of behavior.

19

1 *1 in 5 violent offenders serving time in a State prison reported having victimized a child.

*More than half the violent crimes committed against children involved victims age 12 or younger.

*7 in 10 offenders with child victims repored that they were imprisoned for a rape or sexual

assault.

*Two-thirds of all prisoners convicted of rape or sexual assault had committed their crime

against a child.

Nearly two-thirds of rapists and sexual assaulters in State prison committed their crime against

a child.

*In a study of 571 pedophiles, the Washington Post revealed that each had molested an average

of 300 victims.

We have all heard the stories of men, often times fathers, who have been accused

of child sexual abuse by vindictive ex-spouses. In certain circles, such tales have

achieved the status of urban legend. Personally, I don’t know if such stories are true

or not, but I do know this: HR 2146 directly addresses this issue. Certainly one can

be falsely accused and possibly even falsely convicted of such crimes once, but not

twice. By mandating life in prison only after a second conviction, one can be sure

that our criminal justice system with its assemblage of checks and balances will protect innocent persons from this unfortunate but necessary fate.

HR 2146 targets two specific types of offenders: pedophiles and psychopaths. By

definition a pedophile is one who has a preference for having sex with children. If

an individual pursuing sex with a child has been previously convicted of a sex crime

against a child and the threat of another conviction and possible prison time is an

inadequate control mechanism, then that person is a pedophile and must be removed from society.

A psychopath on the other hand is an individual who pursues instant self-gratification without consideration for the consequences of his action. Like the pedophile,

a psychopath will commit crime with impunity until stopped. Pedophiles and psychopaths pose great threat to the safety of our children because they cannot control

their actions, and HR 2146 offers a control and deterrence that cannot be ignored.

Mr. Chairman, members of the committee, there is not a documented case of a

pedophile or a psychopath ever having been cured. The sad reality is that they reoffend over and over and over again until they are removed from society once and

for all. State hospitals throughout America spent decades pursuing cures for

pedophelia and psychopathy and they failed. Inevitably, the pedophile and psychopath will strike again and the victims will accumulate.

As we know, David Spanbauer symbolizes a typical scenario in twenty-first century America: sexual perverts living life sentences on the installment plan. Spinning

through a turnstile system of justice in which their crimes become bolder, more dangerous, more predatory until a wake of destruction and young victims shatters the

tranquil countryside. HR 2146 is an important piece of a very complex puzzle that

will have to be painstakingly assembled until there are no more David Spandauer’s.

Of course, we have all heard about the abuse excuse wherein convicted sex offenders universally testify that their own decline into depravity began with their victimization as a child. I have no idea if the individual offenders are telling the truth

or not, but I do believe that such testimony is instructive if we are going to create

policy that will positively impact future generations.

The statistics underscore the need to take decisive steps to halt the destructive

patterns of recidivist sex offenders against children.1 In no uncertain terms HR

2146 can serve as model legislation and deliver the message that America will no

longer tolerate aberrant behavior and sex crimes against our children. If you don’t

learn from your first crime, you will not be given an opportunity to justify or excuse

your third crime.

Thank you for your time.

Mr. GREEN. Thank you, Marc. Thanks very much. And I join others in praising you for your work and it’s good to see you again.

Mr. KLAAS. Well, thank you, sir. Thank you.

Mr. GREEN. And now welcome, Ms. Sweeney. I appreciate the

time you’ve taken to come here. Thank you. I would like to hear

from you now.

20

STATEMENT OF POLLY F. SWEENEY, RICHMOND, VA

Ms. SWEENEY. Ladies and gentlemen, thank you for the opportunity to speak with you today. My name is Polly Frank Sweeney.

In this very room with us today are two young ladies who, at the

ages of eight and nine, were violated by Joseph Frank Smith, a repeat sex offender. They are my children.

Today, I represent not only own children as survivors of violent

crime, but the untold numbers of children who were violated by a

man who was repeatedly allowed by our criminal justice system to

literally walk away unpunished.

The emotional cost of this failure has been incalculable. You see,

it’s not only the child who’s violated by these pedophiles; the trauma touches everyone involved, from parents to grandparents, siblings, neighbors, cousins, teachers. When a child is violated, we are

all violated, and I know what I’m talking about.

In 1983, Joseph Frank Smith was convicted of twice raping a

woman in San Antonio, Texas. During his rampant crime spree, he

became known as the ski mask rapist. By his own lawyer’s admission, Smith had managed to violate over 200 women and children

before finally being stopped, not by the police, but by a very heroic

neighbor, Mr. Curtis Allred, who devoted months to tracking down

and stopping this predator.

However, instead of being sent to prison, Smith was placed on

probation and ordered to take a course of treatment known as

chemical castration for the next 10 years. Following his 1-month

in-patient treatment at Johns Hopkins Hospital, Smith moved to

Richmond, Virginia. Three years into this period of being castrated,

he had married and fathered a child.

In 1987, only 4 years into his treatment, Smith was dismissed

from this program and told to report by mail and encouraged to

voluntarily continue taking this chemical castration program. In

other words, despite all the pain and suffering he had caused

countless innocent children, this violent and dangerous predator

was left to monitor himself.

In the spring of 1986, Smith moved into my neighborhood, one

block from an elementary school. According to the Henrico County

police, Smith’s sexual crime spree as the Bandanna Bandit began

in the mid-1980’s. In the central Virginia area alone, he is suspected of at least 86 cases of sexual assault on women and children.

Ladies and gentlemen, when I brought my children into this

world, I had no illusions about what a dangerous place this world

can be. Their father and I took every precaution to protect our

three beautiful, living, breathing miracles. I was so cautious that

I was accused of being an overly protective mother.

Smith did not get to my children or anyone else’s because of parental neglect. Smith’s crime spree was a smashing success because

repeatedly he was put back onto the streets of Richmond.

The numbers of child victims in this case alone multiply because

instead of real prison time, this monster was given suspended sentences. Smith managed to collect three suspended sentences within

a 21⁄2 year period before finally being sentenced to prison in 1999.

By his own admission, he was a sex offender from the age of

eleven. He didn’t go to prison until he was 46 years old.

21

You do the math. It’s horrifying.

In listening to the details of this story, you may want to believe

that this is just an isolated case. Sadly, it’s not. I wish it were.

Joseph Frank Smith is a proverbial tip of the iceberg when it

comes to child predators. Status, wealth or fame cannot insulate

our children from becoming a statistic. Neither can bolted doors,

locks, or even guns. My three children can personally vouch for the

ineffectiveness of chemical castration for sex offenders. It simply

does not work. What does work is to lock them up. That’s the only

way we can keep our children safe from these predators.

The effectiveness of policemen, prosecutors, and judges is limited

if the laws are not in place to incarcerate these predators. That is

why we need laws such as the Two Strikes and You’re Out Child

Protection Act.

I daresay that there’s not one person in this room who doesn’t

have a child in their life that they love and want to protect. Whether it’s your own child, a grandchild, niece or nephew, we as the

grownups of this world have to do whatever it takes to keep the

children safe. Polly Salase of Ethiopia once said, ‘‘Throughout history, it has been the inaction of those who could have acted, the

indifference of those who should have known better, the silence of

the voice of justice when it mattered most, that has made it possible for evil to triumph.’’ Ladies and gentlemen, I am asking you to let the voice of justice

be heard and be heard loudly. I am asking that you put partisan

politics aside and not be guilty of inaction or indifference. We know

better.

This is the greatest nation on earth, and we can do so much better. For the sake of our children, we have no choice. For the sake

of America’s most innocent citizens, I am asking you to support

this bill.

Thank you.

[The prepared statement of Ms. Sweeney follows:]

PREPARED STATEMENT OF POLLY FRANKS SWEENEY

Ladies and Gentlemen.

Thank you for the opportunity to speak with you today. My name is Polly Franks.

In this very room with us today are two young ladies who, at the ages of 8 and

9, were violated by Joseph Frank Smith, a repeat sex offender. These are my children. Today, I represent not only my own children as survivors of violent crime, but

the untold numbers of children who were violated by a man who was repeatedly allowed by our criminal justice system to literally walk away unpunished. The emotional cost of this failure has been incalculable. You see, it’s not only the child who

is violated by these pedophiles; the trauma touches everyone involved; from parents

to grandparents to siblings to cousins, neighbors and teachers—when a child is violated, we are all violated. Believe me, I know what I’m talking about.

In 1983, Joseph Frank Smith was convicted of twice raping a woman in San Antonio, Texas. During this rampant crime spree, he become known as the Ski Mask

Rapist. By his own lawyer’s admission, Smith had managed to violate over 200

women and children before finally being stopped—not by the police, but by a heroic

neighbor, Curtis Eugene Allred, who devoted months to stopping this predator.

However, instead of being sent to prison, Smith was placed on probation and ordered to take a course of treatment known as chemical castration for the next 10

years.

Following his 1-month inpatient treatment at Johns Hopkins University Hospital,

Smith moved to Richmond, Virginia. Three years into this period of ‘‘castration,’’

Smith had married and fathered a child. In 1987, only 4 years into his so-called

‘‘treatment,’’ Smith was dismissed from this program and told to ‘‘report by mail,’’

and encouraged to voluntarily continue taking his chemical castration injections. In

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other words, despite all the pain and suffering he had caused to countless innocent

children, this violent, dangerous predator was left to monitor himself.

In the spring of 1986, Smith moved into my neighborhood—one block from an elementary school. According to the Henrico County police, Smith’s sexual crime spree

as the Bandanna Bandit began in the mid 1980’s. In the central Virginia area, he

is suspected of at least 86 cases of sexual assault on women and children.

Ladies and gentlemen, when I brought my children into this world, I had no illusions about what a dangerous place this world can be. Their father and I took every

precaution to protect our three living, breathing miracles. I was so cautious, in fact,

that many accused me of being an overly-protective mother. Smith didn’t get to my

children or anyone else’s because of parental neglect. Smith’s crime spree was a

smashing success because repeatedly he was put back onto the streets of Richmond.

The numbers of child victims in this case alone multiplied because, instead of real

prison time, this monster was given suspended sentences. Smith managed to collect

three suspended sentences within a 21⁄2 year period before finally being sentenced

to prison in 1999. By his own admission, he was a sex offender from the age of 11.

He didn’t go to prison until he was 46 years old. You do the math. It’s horrifying.

Listening to the details of this story, you may want to believe that this is just

an isolated case. Sadly, it’s not. Joseph Frank Smith is the proverbial tip of the iceberg when it comes to child predators. Status, wealth or fame cannot insulate our

children from becoming a statistic. Neither can bolted doors, locks or even guns. My

three children can personally vouch for the ineffectiveness of ‘‘chemical castration’’

for sex offenders. It simply doesn’t work. What does work is to lock them up. That’s

the only way we can keep our children safe from these predators.

The effectiveness of policemen, prosecutors and judges is limited if the laws are

not in place to incarcerate these predators. That is why we need laws such as the

‘‘Two Strikes and You’re Out Child Protection Act.’’ I dare say that there is not one

person in this room who doesn’t have a child in their life that they love and want

to protect. Whether it’s your own child, a grandchild, a niece or nephew—we as the

grown-ups of this world have to do whatever it takes to keep the children safe.

Haile Selassie of Ethiopia once said, ‘‘Throughout history it has been the inaction

of those who could have acted, the indifference of those who should have known better, the silence of the voice of justice when it mattered most, that has made it possible for evil to triumph.’’ Ladies and gentlemen, I am asking you to let the voice

of justice be heard, and be heard loudly. I am asking that you put partisan politics

aside, and not be guilty of inaction or indifference. We know better. This is the

greatest nation on earth and we can do so much better. For the sake of our children,

we have no choice. For the sake of America’s most innocent citizens, I am asking

you to support this bill. Thank you.

Mr. GREEN. Thank you for your testimony.

Ms. Lawrence, please.

STATEMENT OF PHYLLIS TURNER LAWRENCE, VICTIM ASSISTANCE AND RESTORATIVE JUSTICE CONSULTANT, WASHINGTON, DC

Ms. LAWRENCE. Thank you. Good evening, Chairman Green and

other Members and Ranking Member Scott. I very much thank you

for the honor and the opportunity to address you today.

First, let me say that as a rape victim and a citizen, I do appreciate your efforts to protect crime victims and to prevent future victimization. Yet this particular effort, while well-intentioned, may

actually result in fewer convictions and more pain and lost opportunities for healing for victims of child sexual abuse, and I will give

you the reasons why I believe that based on my own experience.

I also worked for the National Organization for Victim Assistance

for 3 years as a researcher, answered thousands of calls on their

national victim hotline, and did a lot of research and writing and

editing of materials on various kinds of crimes.

Many victims of child sexual abuse, and I’m particularly thinking

of not the predatory situations that most everyone has addressed

so far, but the familial trust situations that people may have with

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a relative, somebody that their sister is dating, a grandfather,

somebody that they have some connection with, they often feel in

those cases such tremendous conflicting feelings and they experience substantial pressure internally and from others externally in

bringing these cases to light and pursuing the convictions.

The fact that a life sentence is the only possible outcome under

this legislation places an additional layer of pressure that may actually impede reporting and later cooperation.

Secondly, to me, to hold someone accountable really means that

the offender fully admits his or her actions, feels responsible for

them, and understands and feels remorse for the impacts of those

actions.

Punishment by incarceration alone, especially life imprisonment,

may mean that the perpetrator will not be able to re-offend, but assuredly does not guarantee real accountability to the actual victims, their loved ones and the community.

Child sexual abuse, thirdly, is one of the most horrendous and

harmful of crimes, as everyone today has been talking about. The

facts and circumstances, however, of each case are unique and complex. It takes special expertise to sort out what is best for the victim or victims of a particular case, what’s appropriate in terms of

punishment, treatment and requirements for real accountability for

the offender, and what is needed in terms of public safety. Mandatory life sentences will remove consideration of those matters and

make everything automatic no matter what the underlying circumstance is.

Fourthly, as covered more effectively by the U.S. Sentencing

Commission’s remarks this year and last, and the Department of

Justice’s remarks last year, and the NACDL statement, and Mr.

Scott’s statements, this legislation goes way beyond dealing with

the predators and there are many situations easy to describe, and

some are in my longer written statement, that would show you the

inequities, not addressing the kinds of issues that Mr. Klaas and

Ms. Sweeney and Mr. Fusfeld were talking about.

I can speak from personal experience regarding the issues of

pressure and accountability and want to spend my time on that.

I was raped by a stranger who broke into my home in 1989.

Dealing with the crime, the police, the prosecutors, offenders, that

was my turf. I was a lawyer. I knew all the arguments that rape

is not the victim’s fault; yet every step took considerable emotional

strength. For 9 months, from arrest until sentencing, I had to mentally relive the facts of that horrible night in order to be a good witness. I know what prosecutors can do if you make mistakes in the

testimony, so I had to make sure that I was being accurate, and

I wanted certainly to see this person convicted.

I still, though, had to struggle also with the shame that comes

from knowing that this stranger literally invaded not only my

home, but my body. I was a victim, yet it’s a natural response to

feel shame.

Contrast how hard it was for me, an adult, for what it might be

like for a child or a teenage victim of sexual abuse by a relative

or a neighbor. For many child victims, some kinds of relationship

does exist with the offenders or they would not have been able to

get them into the private space. Especially when there was a relaVerDate 11-MAY-2000 12:11 Oct 16, 2001 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\073101\74237.000 HJUD2 PsN: HJUD2
24

tionship, they’re left to baby-sit or all kinds of circumstances. However, in those particular situations, they often may have a trusting,

safe, even loving relationship, and when that’s violated and the

child comes to understand this was a violation, they have tremendous amounts of confusion, and that’s something that then leads to

their insecurities about testifying. It makes it that much harder to

bring it to light.

They’re going through feelings of, this is my father, how could he

or she do something bad to me? There must be something wrong

with me if I feel bad about what he did. He tells me this his how

he shows he loves me. How could I turn him in?

And then unfortunately, sometimes the families give pressure: I

don’t believe you. You’ve been watching too much TV. You’re just

mad at dad and you’re making this up. You take him away and

under this provision, he winds up in prison for the rest of his life,

we’re going to be out on the streets. It’s a sad terrible thing that

the pressure is put on these children in these particular kinds of

cases, but that is the reality, and prosecutors in these cases will

tell you that they have to deal with that complication all of the

time. They wind up with the child victims who want to take back

their testimony or minimize it or change their statements, and

what are they left to do? Consider prosecuting them for filing a

false police report. That’s an even worse penalty for the poor child

victim.

The current law requiring the mandatory minimums already creates this pressure. Expanding it to include these underlying offenses that may be much less of an impact only make it worse. And

we must consider that empowering the victim really allows them

to have a voice. If you say mandatory minimum, life sentence, you

prosecute your dad, he’s going away for life, they’re never going to

have the chance to work through the issues and get the real accountability when that father can say to that child, this really was

only my fault.

I really want you to consider these situations and consider how

broadly this bill will impact, much more broadly, I think, than the

kinds of situations you really want to consider.

Thank you very much.

[The prepared statement of Ms. Lawrence follows:]

PREPARED STATEMENT OF PHYLLIS TURNER LAWRENCE

Good afternoon, Chairman Smith, Ranking Member Scott, and subcommittee

members. Thank you very much for the opportunity to address you regarding the

proposed legislation, H.R. 2146.

I come to you in three roles: as a victim of sexual assault, as an advocate of finding ways to support victims and to hold offenders accountable, and as a former practicing attorney.

Let me take you back to 1989, to a coastal community in California. I was 39

years old, an attorney, a person with a strong sense of individual accomplishment,

and someone who presumed, ‘‘It would never happen to me!’’ when it came to sexual

assault. That presumption was shattered, along with my sense of personal safety— of control over my own body and my own home—when a stranger broke into my

apartment in the middle of the night and raped me. I fought, I tried to talk him

out of it, I tried every tactic I could think of, but I was overpowered. When it was

over, and he—either stupidly or crazily, I don’t know which—asked me to drive him

home, I pulled myself together and did so, even when I discovered that he lived 2

towns away! I decided if he could be so stupid as to let me see where he lived, I

could be strong enough to find out. My lawyerly training kicked in as I tried to find

out as much information from him as possible. But even after seeing what apartVerDate 11-MAY-2000 12:11 Oct 16, 2001 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6621 G:\WORK\CRIME\073101\74237.000 HJUD2 PsN: HJUD2
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ment complex he lived in, knowing I could give that information to the police, as

well as a good description, I still hesitated to report the crime.

I tell you all of this to make the following point: I was a professional in the field

of criminal justice, an adult, a strong person, and I still had fears of coming forward,

being the ‘‘subject’’ of some police work, potentially having to testify in court, having

my friends and family, my clients, everyone knowing about this awful thing that

had been done to me. It took a lot just to make that call to the police—although

I’m very glad I did. It took 9 months from arrest to trial to sentencing, and all that

time, I did little to focus on my own healing—it took all my energy to making sure

I’d be a good witness and this person would be convicted, and I’m glad I was able

to do that.

At the sentencing he received 48 years, the maximum allowable under the California criminal code for all the counts charged in this one incident. I am only glad

about such a long sentence for one reason—since he’s not being given any treatment

programs, and will probably remain in denial, as he was at the trial. The only thing

that still makes me angry, because I have truly healed, is that he is only being punished. No effort is made to hold him truly accountable. When he gets out at age

52, with good time credit, maybe he will have ‘‘aged’’ out of crime, maybe not. But

does it do me, the taxpayers of California, his family, any of us, any good to look

him up for that long and do nothing to change his behavior? I say no. I realize that

some of you will say, ‘‘But if we lock him up for good, he won’t hurt anyone else.’’ I believe we cannot throw away the key on the huge numbers of people who are

in state prisons for sexual abuse of children or adults. However, your effort in H.R.

2146, of course, would only address Federal defendants, which, as the Sentencing

Commission letter points out, would be very few in number. Nonetheless, we must

still consider that, no matter how few cases that would likely come under Federal

jurisdiction, there are victims in these cases. And there is also the issue of the example Federal legislation sets.

So let us think about the victims the proponents are trying to help: children and

young people who have been sexually abused. I think about this most traumatic experience of my life, and all that I have learned since, including during my 3 years

as a researcher and victim advocate for the National Association for Victim Assistance (NOVA). If it was hard for me, with my life experience to come forward about

what a stranger did, it pains me deeply to think about how hard it is for those

young victims of these heinous crimes. As we know, in most cases, some kind of relationship exists with the offender which allows them to be in private. Often it is

an adult with whom they thought they had a trusting, safe, even loving relationship.

I still had to deal with the shame that comes from victimization, with the ‘‘I

should’a done this, I could’a done that,’’ and with the struggle to get past the horrendous feeling of literally personal invasion of my body—and I intellectually understood! But children don’t have that foundation, they only have a mass of confused

feelings: ‘‘This is my father, or my stepdad, or my favorite uncle, or my camp counselor—how could he (or she) do something bad to me? It must be something wrong

with me if I feel bad about what we did. He tells me this is how he shows that he

loves me. How could I turn him in?’’

But, in all too few cases, finally the child tells someone. And in fewer cases, the

child is believed by everyone. Too often the child or young adult is pressured by

family members: ‘‘You must be imagining this. You’ve watched too much TV. You’re

just angry because you don’t get your way all the time. If you keep this up, they’ll

put your father in jail and we’ll be on the street—is that what you want?’’ We know

that this is totally unfair, and we hope that there is enough support for victims and

their families both that such responses won’t arise, but that is a mere hope. Unfortunately, only good to middling resources exist in some communities; in many there

are none. I know something of the state of victim assistance in the U.S. While at

NOVA, I personally answered several thousand calls from crime victims looking for

assistance and local referrals. And in the Native American communities, which

would most likely be the one identifiable group affected, by this legislation, there

are even fewer resources than in large urban areas.

I have talked to several psychologists, other victim advocates, and attorneys who

all deal with these cases. Present virtually always is the shame, the morass of emotional confusion and torn loyalties, the loss of sense of boundaries. Frequently there

is the added pressure and denial of others. In both criminal and civil prosecution

of abuse and neglect, attorneys and advocates deal with these dilemmas regularly.

A child does report to someone, an investigation begins, the child is quizzed repeatedly, they (hopefully) go into therapy—they have to deal with so much. They are

in the midst of civil and criminal court processes they do not understand, and they

learn that they alone will impact whether the person with whom they may have a

26

love/hate or respect/fear relationship will go to prison. They sometimes recant or

minimize their statements. And when that happens, the victims themselves may be

prosecuted for making a false police report. These some of the toughest cases to

prosecute. Other attorneys who understand these dynamics agree with me: this legislation will only make it tougher.

Even the current mandatory minimum requirement for repeat offenders against

children contained now in Title 18 Section 2241, add to the pressures I’ve described

that exist for these most vulnerable and fragile victims, the pressure of knowing

that a conviction based on their testimony will, no matter what they want, send this

person away for life. Period.

Currently there is other legislation to add to the U.S. Constitution a Victims

Rights Amendment. Over and over the amendment’s advocates explain that victims

are not trying to take over the criminal process, they are not trying to take away

from the defendant’s rights, they simply want ‘‘A voice, not a veto.’’

Victims are empowered by seeing that their individual stories are being heard by

the ‘‘system’’ and ‘‘helpers.’’ They are empowered by being able to give voice to the

terrible ways in which they were affected and knowing that the judge listened. They

are empowered in therapeutic situations where they are able to confront the abuser

and truly hold him or her accountable. And despite all the support in the world,

for many victims of abuse, they only believe it when the offender himself says, ‘‘It

was not your fault.’’ You lock up the offender for life and those opportunities do not

exist.

For those who do maintain their courage and go forward, let’s look at the sentencing inequities.

You are a Federal prosecutor with a case involving a 15-year-old that was, on one

occasion, sexually abused by the 20-year-old fiance ́ of her 23-year-old sister who is

a disabled single mother. The young woman did report, and had the strength to deal

with tremendous pain and conflicting emotional upheaval, as well as ‘‘the system.’’

Now she finds out that due to a previous conviction, maybe for fondling a 15-yearold when he was 19, he’s facing a mandatory life sentence. Maybe she even hates

the offender, and wants him completely out of her life right now. Even aside from

her sister’s anger and fears, she doesn’t want him locked up forever; she is willing

to leave it to the professionals and to a judge to decide both what punishment and

what treatment are needed. But there is not going to be anyone in such a position,

not with this legislation.

And you have another case involving the three cousins who finally, by supporting

each other, are able to testify against their grandfather who abused all of them over

a period of years. And there are others in the family who won’t come forward publicly. They want to come to a sentencing of a child sexual abuse case to get an idea

of what that proceeding will be like. How do you, the prosecutor, or the victim/witness coordinator, explain—when they see the 20-year-old in the first case get life—

that Congress determined that what he did was worse than what their grandfather

did to them and other relatives over decades?

What you take away for many, with such mandatory life sentences, is the opportunity for the family and the community, with the help of professionals, the court

system and other support, to address the needs of the victim, and what they may

see as the needs of the offender as well.

There’s little in the way of resources in Federal or state prisons to deal with accountability and treatment of sex abusers. You lock someone up for life, what incentive is there for the correctional system to provide that? But that may be exactly

what is needed for the offender to get to the point where he or she can be accountable to the people that count: the victim, their own families, and the community.

I know the intent is there to help victims. This is not the way.

Mr. GREEN. Thank you for your testimony.

Let’s begin with questions.

Now, Mr. Klaas, one of the Members of the Committee said earlier that this legislation was nothing more than a solution without

a problem. What’s your reaction to that?

Mr. KLAAS. Well, my reaction is that the problem are the types

of offenders that I mentioned, and I would hope you would agree

that we’re talking about the pedophiles, we’re talking about the

psychopaths in our society, the individuals for whom there has

been no truly effective treatment found, for whom there has never

been a cure found.

27

There has been—there has been study and research done in

State hospitals in this country for most of the last century, and nobody has yet come up with effective treatments for these individuals. I know that a lot of practitioners will say that their programs

are effective, but if they truly worked—in fact, one of the great

ones is the guy that treated Joe Smith. I mean, he was a success.

He was a success as long as he was under the care and treatment

of the particular practitioner. It was only after he was off—it was

only after he was told to voluntarily comply that he seemed to fall

off the wagon.

Now, a lot of these people will tell you that they do have a great

success rate, but quite frankly, if they did, the world would be

beating a path to their door, and that just isn’t happening.

Mr. GREEN. Mr. Klaas, can you tell us—Richard Allen Davis,

who is obviously the monster who stole Polly from you, what was

his criminal background prior to that incident?

Mr. KLAAS. Well, Richard Allen Davis’ criminal background

began with check-kiting at the age of ten, and it increased—it increased in—it became more and more violent as he grew older, and

by the time he was an adolescent, he was actually beginning to

commit sex crimes or move into the area of sex crimes and, in fact,

had been convicted of—he had plea bargained out of sex crimes, he

had been convicted of two previous kidnappings prior to kidnapping

my daughter, and it was known—in fact, it’s on the record—that

he had been diagnosed as a sexually violent psychopath prior to his

previous conviction for which he spent only seven of 16 years prior

to getting out and then murdering my child.

The way these people’s minds work—I’ve got to explain this—

prior to getting out of prison, this predator, monster, scum—they’re

all very descriptive; they all work—prior to getting out of prison

and getting his hands on my child, he told other people in his cellblock that he would avoid AIDS by getting a young one. So the kidnapping, rape and murder of my 12-year-old daughter Polly was

this particular psychopath’s definition of safe sex. Now, that’s what

we’re dealing with. These are the people that we want to put behind bars and keep behind bars.

And I would suggest that I don’t think we should make exceptions for individuals that are committing incest. I mean, my Lord,

if these kind of crimes are happening as well, and we’re talking

about the second time around, I think most definitely you have to

remove these individuals. But I am going off on a tangent, I understand.

Those are the kinds of things that Richard Allen Davis was involved in.

Mr. GREEN. Thank you.

Ms. Sweeney, there is—a study was done by Washington State

not so long ago—in fact, just last year—which found that psychotherapy actually increased the repetition of commission of acts by

child molesters. Does that surprise you?

Ms. SWEENEY. I know that every study that I have looked into,

everything that I have researched, it simply doesn’t work. A criminal, when they go to their probation officer, when they go to their

court-appointed psychiatrist, is going to want to tell them what

they want to hear. We all want to put the best face on things when

28

we present ourselves, and in that way, they’re no different from the

rest of us.

But no, it doesn’t particularly surprise me because, frankly, I

have not come across a cure. I wish to God there was.

Mr. GREEN. Are you aware of other incidents with those under

chemical castration orders having recommitted their crimes?

Ms. SWEENEY. I’m sorry. What?

Mr. GREEN. I’m very interested in your testimony about how he

was under a chemical castration order. Are you aware of other

cases in which those under chemical castration orders have gone on

to commit acts of child molestation?

Ms. SWEENEY. Not personally. I do know that during the period

of time when Smith was supposed to be and under his own admission was taking these treatments, he fathered a child, so something

was still working.

Mr. GREEN. Thank you. Thanks for your testimony.

Mr. Scott, questions.

Mr. SCOTT. Thank you.

Mr. Klaas, you indicated that the bill targets psychopaths. Do

you know that it covers fornication? If two kids drive from D.C.

to—from D.C. to Virginia, that that would be a Federal offense, to

have sex?

Mr. KLAAS. If two kids go from D.C. to Virginia and have sex,

that would be a Federal offense.

Mr. SCOTT. Right.

Mr. KLAAS. If—— Mr. SCOTT. Covered by the bill, for which they would get life in

sentence if they did—life imprisonment if they did it twice.

Mr. KLAAS. That would be, though, presuming that one—that the

individual who is being targeted has already been convicted of

some sexual felony against a child. This is for—this is not for first

convictions, sir. I don’t think that any of—I don’t think that any

of the crimes that this applies to are for first convictions.

Mr. SCOTT. It includes—for the second offense, if they get caught

doing it twice, you’re talking about life imprisonment.

Mr. KLAAS. And he’s been convicted of having done it once.

Mr. SCOTT. Right. They did it twice. They went from D.C. to Virginia to have sex, got caught, boyfriend and girlfriend, consensual,

got caught, they do it again, you’re talking life imprisonment.

Mr. KLAAS. But having been convicted the first time, that’s what

we are saying. I don’t think—sir, I don’t want to—you know, I don’t

want to put a boyfriend, an 18-year-old boyfriend of a 17-year-old

girlfriend in prison for the rest of his life and I don’t think Mr.

Green does and I don’t think that there is any judge in the land

that would want to do something like that. We’re talking about the

Richard Allen Davises and the David Spanbauers, sir.

Mr. SCOTT. You covered them and you also covered the two 17-

year-olds that travel from D.C. to Virginia to have sex. Second offense, life imprisonment.

Mr. KLAAS. If they are two 17-year-olds, what’s the crime?

Mr. SCOTT. Travel to Virginia to commit a crime. The crime is

fornication in Virginia. Transportation—a person who knowingly

transports an individual who has not attained the age of 18 years

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tory or possession of the United States with intent of that individual that that individual engage in any sexual activity for which

the person can be charged with a criminal offense shall be imprisoned for not more than 15 years.

Mr. KLAAS. Well, it seems to me that if they’re both 17, you’re

going to have a hard time making the argument of who’s taking

who over the State lines.

Mr. SCOTT. I’m just reading the Code. I mean, this is—that’s

what’s in the Code. Do you twice, life imprisonment.

See, the 15 years is not a mandatory minimum, so the judge,

looking at the situation, can say, okay, you know, you’ve got a

crime here, but I’m not going to give you 15 years.

Mr. KLAAS. The judge will plea bargain it, don’t you believe, sir?

I believe that this would be plea bargained down by the prosecutor

and/or the judge.

Mr. SCOTT. And the judge would give an intelligent offense.

Under this bill, if it’s second offense, he is limited in his sentencing

options to life imprisonment. That’s the mandatory minimum.

Mr. KLAAS. But they are not limited in their charging options,

are they, sir? I mean, I don’t know the—I certainly don’t know the

Code. It would seem to me that no judge in his right mind is going

to—or prosecutor in their right mind is going to set somebody up

to spend the rest of their life in prison if they’re two 17-years-old

in a consensual relationship. I suppose theoretically it could happen.

Mr. SCOTT. The targeting, therefore—you said, it targets psychopaths—the targeting is in the discretion of the sentencing—of the

charging powers, not in the bill. The bill covers them clearly and

the targeting would be, well, although they’re technically covered,

nobody would do that. That’s how you do your targeting.

Mr. KLAAS. Sir, I’m not a lawyer. I would defer to Mr. Green on

this. He’s the author of the bill.

Mr. GREEN. I don’t want to take your time. We will have the

chance to discuss that in markup. I won’t take up your question

time.

Mr. SCOTT. Do we know what offenders get for second offense in

Federal court now?

Mr. KLAAS. Again, I don’t have the answer to that. What I do

know is that they shouldn’t be given the opportunity to make their

case for the third offense. The numbers that we’re dealing with

here, and we heard Ms. Sweeney talk about it and we heard Mr.

Green talk about it, that we’re talking about individuals who are

not being charged every time they commit the offense, so we’re

talking about individuals who may have hundreds of offenses prior

to being convicted. And further, it says—and these are DOJ numbers—one in five violent offenders serving time in a State prison

reported having victimized a child. Seven in ten offenders with

child victims reported they were in prison for rape or sexual assault. So if you do the math, we’re talking about huge, gigantic

numbers of victims who then become oftentimes victimizers themselves. This is really an attempt—it’s a I think as much a public

health issue as it is a criminal justice issue. It’s an attempt to try

to stop the cycles of violence and stop future generations of predators.

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Mr. GREEN. Thank you. Time has expired.

Mr. Chabot, any questions?

Mr. CHABOT. Thank you, Mr. Chairman.

Yes. Ms. Lawrence, let me start with you, if I can. I think in your

testimony you stated that you were opposed to this legislation for

a number of reasons. One was that you felt that it put pressure on

the victims, that they might not want to come forward and testify,

particularly if there was a family type relation; and you criticized

the minimum mandatory sentencing and said that even that puts

pressure on people not to testify and come forward.

Are you opposed to minimum mandatory sentences as well?

Ms. LAWRENCE. Basically, yes. I feel that in many cases—one

drafted such as this—if it was drafted to cover specifically—and I’m

not sure that you can is the problem—the kinds of situations that

Mr. Klaas is talking about and certainly the kind of terrible experience that Mrs. Sweeney and her children have gone through, that

would be one thing. But this covers, as Mr. Scott has been pointing

out, situations that would be involving kids—the example I gave in

written testimony was you might have a 15-year-old girl, her sister

is 20. She’s got a 19-, 20-year-old fiance. She is a single parent already. This guy is going to marry her, she’s going to get off welfare.

Great. She’s thrilled.

That guy then sexually abuses the 15-year-old sister. Maybe it’s

less than rape; it’s aggravated sexual assault; it may not be rape,

or even if it unfortunately is rape, but then that—he’s—then

maybe he had a previous charge, like as Mr. Scott was talking

about, he at 17 could have been convicted, if he happened to live

on a reservation, at 17 for crossing a State line with another 17-

year-old because this section of the statute doesn’t even say over

18——

Mr. CHABOT. I’ve only got a limited amount of time. Let me follow up.

You also said that you’re obviously opposed to the—now you’ve

indicated you’re opposed to minimum mandatory sentencing as well

as this proposed two strikes and you’re out. Do you have any statistical or documentary evidence that people are less likely to come

forward if we do have minimum mandatory sentences or if we had

a sentence like this of life imprisonment for a second offense?

Ms. LAWRENCE. Well, I’d particularly say when it’s as strict as

life imprisonment, yes. I started, when I was asked to testify—because I’m not an expert in this. I’ve practiced law, I’ve worked in

victim assistance for a number of years and I work in restorative

justice.

Mr. CHABOT. The question was, do you have documentary—you

do—you say do have——

Ms. LAWRENCE. I spoke to a couple prosecutors, I spoke to a couple victim witness advocates, and they all said they run into this

problem of the victims, when they realize—when—they want to report, it gets reported and somebody files charges, and then they

start getting pressure as I’ve described, and then they don’t want

to come forward and they do recant.

Mr. CHABOT. Okay. I would be interested to see something that’s

actually documented that shows that people do back off from their

testimony if you have tougher sentencing. I mean, it seems to fly

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in the face of everything that law enforcement stands for. I mean,

you know, you come down hard on somebody if they commit a particularly egregious offense, particularly if they’re repeat offenders.

There aren’t a lot of crimes, in my view, that are more egregious

than victimizing children.

Are you an advocate of the death penalty or are you opposed to

the death penalty?

Ms. LAWRENCE. I am opposed to the death penalty.

Mr. CHABOT. Opposed to the death penalty. Okay.

Thank you.

Mr. Klaas and Ms. Sweeney, you’ve heard some of the things

that Mrs. Lawrence has talked about this legislation, and is there

any comments or any suggestions or anything that you would like

to tell us about what you’ve heard?

Mr. KLAAS. Well, certainly I believe that the evidence is pretty

clear that most children that are sexually abused are sexually

abused by somebody that they do know. Now, if that person has

been convicted of having committed one of those crimes previously,

and then betrays that trust again, certainly on the same victim or

even on other victims, then we have to deal effectively with these

individuals.

One of the problems that exist is that individuals that are convicted and released from prison for having committed these kinds

of crimes and that have a predilection toward committing these

kinds of crimes are going to place themselves in positions that will

give them access to young children. And if adequate background

checks aren’t done and they get that access and they then are able

to victimize these children, what we’re finding out is that we put

them in prison, they become better and better and better at these

crimes so that they’re able to get their hands on more children

more often and avoid detection better.

So, I mean, it’s very clear to me that if we’re dealing with those

types of individuals—and of course they’re going to know the kids

because they’re going to be their baseball coach, they’re going to be

their counselor, they’re going to be their Sunday school teacher,

perhaps even the teacher in their school—that we have to take

these people out of the system and keep them out of the system.

Mr. CHABOT. Right.

Ms. Sweeney, is there anything that you would like to comment

on what we’ve just discussed here?

Ms. SWEENEY. Well, I certainly agree with what Mr. Klaas has

said. I just would hate to see justice compromised just because it’s

going to be inconvenient for somebody who wants to get off of welfare. To me, the child’s safety is worth any sacrifice.

Mr. CHABOT. Right. I appreciate that testimony.

One thing, if I could just ask unanimous consent for an additional 1 minute just to wrap up if I can, I think it’s clear here that

we’re not looking at going after two teenagers, you know, that may

have technically violated, you know, the law of Virginia or D.C. or

whatever. I mean, we’re going after the hardcore people here who

are preying on our children. And everything that I have seen is

consistent with what I’ve heard here from most of the witnesses,

and that’s that treatment really is virtually—it just doesn’t work.

We might like it to work, we like to rehabilitate people if we can,

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but again, as Mr. Klaas said, we’re not talking about first-time offenders here; we’re talking about people that did it, got caught, and

now have done it again, so the courts have basically indicated that

they’re—you know, that these people are going to continue to commit crimes. And until we can actually cure people, I think we have

a responsibility to protect society, the most innocent among us, and

keep them away from people, and the only thing that we have to

do that right now is the prison system.

Mr. GREEN. Thank you.

And thanks again to all of you for making the effort to come and

testify and for your patience throughout the day. We appreciate it

very, very much.

Thanks. We’re adjourned.

[Whereupon, at 7:22 p.m., the Subcommittee adjourned.]

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