Colorado sex offender laws can do more harm than good, critics say

Close to 30 years ago, Wayne Bethurum was living in Wray, in his late 40s, when he groomed an underage family member and entered into what he wrongly thought of as a relationship.

He says he now understands now there is no such thing as a “relationship” between a child and an adult. He completed his prison sentence for sexual assault on a child, and today he lives in Cedaredge, a small town in western Colorado.

Bethurum has not reoffended. He’s been involved in his community as a photographer who helps put on veterans’ events and motorcyclist meetups. A local nonprofit earlier this year named him volunteer of the month. After that honor, he said, “Somebody ran my name and found out I was on the registry.”

“Now I can’t volunteer anymore,” he said. “All kinds of stuff is spread around town and half of it is not true. I’ve been ostracized in the community… They think of me as the worst of the worst.”

He said he can’t blame them for judging him that way — “What I did was terrible” — but many who work closely with people like Bethurum say that turning them into permanent pariahs is ultimately unhelpful to the cause of rehabilitating sex offenders and preventing future sexual violence.

The size of Colorado’s sex offender registry, now at roughly 20,000 people, is but one in a slew of reasons a growing chorus of lawyers, lawmakers, researchers, people on the registry itself, and even some victims of sexual abuse believe Colorado’s system of managing sex offenders in some cases does more harm than good.

That system is controlled mainly by the state’s powerful Sex Offender Management Board, or SOMB, a 25-member group that sets rules for evaluation, treatment and monitoring of sex offenders.

That board’s critics argue that this system can demoralize and endlessly punish people who genuinely want to be better, teaching them to see themselves as incurable monsters even decades after their offenses — at the expense of more effective and humanizing therapies.

“It’s this rhetoric of ‘tough on crime,’” said Apryl Alexander, an associate professor at the University of Denver who has been a treatment provider for sex offenders in several different states. “We do have to be tough on crime, I believe that. We have to make our communities safe. The issue is, are our communities safe? Is anything changing? The issue is that, on sexual violence, not much is changing.”

The set of people criticizing the SOMB is not a small one. Repeated state reports in the past decade, including a scathing report by the state auditor last year, have questioned the board’s transparency and resistance to evidence-based best practices.

The auditor found that board members were voting on policy matters to benefit their own firms, and the state has also been accused by its own watchdogs of wasteful spending — as much as $44 million annually, as of 2017 — and delays in getting people past their parole-eligibility date into treatment. Forty-seven convicted sex offenders got out of prison last year without receiving treatment, the state reported.

“Strong social support, community relationships, stable housing, good jobs — the person who’s got something to lose in their community tends to behave better,” said Laurie Rose Kepros, director of sexual litigation for the Office of the State Public Defender. “Instead what has happened with the SOMB is that even when they’ve gotten legislative reports, audits, they just keep saying, ‘Oh yeah, we did that, we fixed that.’ But they didn’t and they don’t.”

“The politics of disgust”

The experts who’ve dominated the SOMB and much of this segment of criminal justice theory in general describe sex offenders as a uniquely manipulative, dangerous population. It was only about a decade ago that Colorado even recognized the potential for rehabilitation in this group, dropping the term “no known cure” from policy.

“Why do we treat and regulate?” District Attorney Alexis King, of Jefferson County, told lawmakers in June as she spoke against proposed reform legislation. “We do it because they are a risk to our community safety, and they are a risk because they are often offending repeatedly.”

Reformers tried and mostly failed to go further this year, seeking in the spring to pass into law a series of changes to the SOMB that would have made the board smaller and given a greater voice to treatment providers, eliminated the term “sexually violent predator” from statute and limited the use of controversial polygraph examinations, among other changes.

But the state’s elected district attorneys unanimously cried foul, arguing that these proposals had been rushed and not well vetted, and the legislature opted instead to pass a limited bill and essentially put off the tougher conversations until next year, or no later than 2023.

Those policymakers openly admit the legislature is hesitant to tackle the issue. After all, who wants to stick their neck out to question harsh punishments against people convicted of crimes like rape and incest? But a large body of evidence shows that current standards, and the self-loathing and isolation they can promote even for offenders deemed low risks to reoffend, are counterproductive.

Among the areas of highest concern for SOMB critics is the state’s continued authorization of testing deemed by doctors and courts alike to be pseudoscientific and unreliable, including polygraphs and the “penile plethysmograph,” in which evaluators strap a band to a subject’s penis and monitor their arousal at various images and ideas.

Conrad Gonzales, long ago convicted on sex assault on multiple children, still recalls his plethysmograph, 22 years ago. He was shown pictures: a child in a diaper, a man wearing a thong, a woman in lingerie. Audio played in the background — narration of a child sex assault fantasy, he recalls.

“After the plethysmograph I thought about getting on I-25 and running into a truck,” said Gonzales, 72, who now lives north of Ault near the Wyoming border.

The experience sticks with him.

“Most of it is self-deprecation, telling myself I’m worthless,” he said. “There are times where that really gets to the point of thinking you just don’t deserve to be alive.”

Penile plethysmography is less common today, but still authorized in the SOMB’s standards — though the board is now in the process of reevaluating that. It’s set to discuss the matter further at its Sept. 15 meeting.

Like the test Gonzales took, mandatory polygraphs have been widely discredited — they also cost the state and offenders millions — but the SOMB still defends them as a tool to deter “problem behavior” and to obtain information that otherwise may never have surfaced.

This testing is part of a broader overall strategy of closely monitoring sex offenders and keeping them permanently in a class separate from the rest of the population. Deregistration is a third rail in Colorado politics, even more so than other proposed reforms. That’s because the registry is comforting to the public, said Emma Mclean-Riggs, an ACLU of Colorado fellow experienced in working with people assigned to the sex-offender registry when they were under 18.

“Registration does not work. It does not keep us any safer. Period,” she said.

“The reason we continue to use registration as a tool is only about the politics of disgust. It’s a way for us to express disapproval of that behavior, and a way for us to ‘other’ and distinguish ourselves from the folks who commit sexual crimes. We can feel comfortable and safe knowing that the predators are this monstrous other, when in fact we know most abuse happens between people who know each other. We’re not talking about the monster in the bushes. We’re talking about dad, cousin, neighbor — those folks.”

Mclean-Riggs was sexually abused as a child. It’s not unusual for survivors of sexual violence to reach the same conclusions she has — contrary to the popular refrain from opponents of reform who insist that people like Mclean-Riggs want to push policies that will harm survivors.

A 2017 study in the International Journal of Offender Therapy and Comparative Criminology found that survivors were more supportive than non-survivors of treatment for sex offenders, and that they were more critical of mandatory community notification laws, which in Colorado include a requirement that police inform neighbors when a “sexually violent predator” moves in. (That term applies to a subset of just under 400 sex offenders, though experts say this group is not uniformly dangerous and that the system by which someone is designated a “sexually violent predator” can be imprecise.)

“Because I’m a survivor I care about exactly one thing: what works. That’s it,” Mclean-Riggs said. “I don’t care about performing disgust, condemning people, punishment. I care about little kids, like I was.”

“Political suicide”

Colorado, as with the country in general, is not particularly good at helping victims of sexual abuse. It’s estimated that the population the SOMB serves commits fewer than 1% of sexual offenses in the state — that is, most offenders get away with it because sexual assault is so under-reported — and that one in four girls and one in six boys will be sexually abused before they turn 18.

All the more reason, prosecutors and others argue, to be especially tough on the small fraction of abusers who are actually caught and convicted.

Jessica Dotter, sexual assault resource prosecutor for the Colorado District Attorneys’ Council and a member of the SOMB, said that Colorado is better than other states at developing containment strategies for that fraction. The SOMB, she said, makes the state more nimble than others that do not have such a body.

“I think the current state of registration, of intense supervision and probation, of multiple cracks at probation before being sent back to (prison), are indicative of our attempts to tailor the sort of treatment and conditions of sentencing,” she said.

The reformers argue that even though it’s not on the SOMB solely, or even mostly, to fix the national problem in which few sex crimes are reported and even fewer are prosecuted, the state could at least move the needle by diverting funding away from heavy surveillance programs that they say often have no positive rehabilitative effect.

Said Kepros, “With feel-good interventions like polygraph testing that do not yield an increase in public safety, we’re choosing not to give money to survivors of sexual violence. We’re not funding prevention. We’re making a choice to not spend money where it does some good.”

In some cases, the state is choosing to make the offenders spend the money. One man, Rick Ostring, testified to a state Senate committee this year that he’d been forced to spend about $4,000 on mandatory polygraph tests.

“Why not also use divining rods and tea leaves, as a triumvirate to detect falsity?” said state Sen. Pete Lee, a Colorado Springs Democrat. “How can we hold our head high and say that we’re engaging in accurate risk assessment when we use tools like that?”

On both sides of the aisle there are lawmakers coming to see it that way. This past session saw a push — albeit stalled — to make the SOMB smaller and more balanced, with greater emphasis on the input of actual treatment providers. There’s increasing consensus that terms like “sexually violent predator” are problematic because they often aren’t even accurate. And in general there is a move to talk about and to treat those on the registry with more compassion.

Dotter warns of a slippery slope.

“To call it ‘a person who has committed a sexual offense’” — instead of a “sex offender” — “is very offensive to victims and others,” she said. Dotter said she worries about the state removing accountability.

The lawmakers and advocates seeking changes to the SOMB’s structure and standards say they don’t want to minimize this population’s horrific crimes, but that they cannot ignore the problems in this system that years of research, plus multiple state offices, have over and over called into question.

They also know this is not a popular political fight. That is true even though many lawmakers agree in principle that the SOMB should be reformed. One lawmaker who voted against this year’s bill, Republican Rep. Mike Lynch of Wellington, said the board is “broke” just before he cast that vote.

“We have a problem. It doesn’t matter if it’s an election year or not,” state Rep. Stephanie Luck, a Penrose Republican, told The Denver Post. “What are we going to do to fix this? Regardless of how it plays out in the press.”

Added state Rep. Kerry Tipper, a Lakewood Democrat who said she plans to bring a SOMB reform bill next year, “Maybe it’s political suicide. But our job is not to do what is popular.”

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