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Tuesday, August 25, 2015

NJ Court Rule 3:5-1 Authority to Issue Search Warrants Rule

NJ Court Rule 3:5-1 Authority to Issue Search Warrants Rule

Court Rule 3:5. SEARCH WARRANTS
3:5-1. Authority to Issue


A search warrant may be issued by a judge of a court having jurisdiction in the municipality where the property sought is located.
Note: Source-R.R. 3:2A-1.
3:5-2. Grounds for Issuance

A search warrant may be issued to search for and seize any property, including documents, books, papers and any other tangible objects, obtained in violation of the penal laws of this State or any other state; or possessed, controlled, designed or intended for use or which has been used in connection with any such violation; or constituting evidence of or tending to show any such violation.
Note: Source-R.R. 3:2A-2, 3:2A-7.
3:5-3. Issuance and Contents

(a) An applicant for a search warrant shall appear personally before the judge, who must take the applicant's affidavit or testimony before issuing the warrant. The judge may also examine, under oath, any witness the applicant produces, and may require that any person upon whose information the applicant relies appear personally and be examined under oath concerning such information. If the judge is satisfied that grounds for granting the application exist or that there is probable cause to believe they exist, the judge shall date and issue the warrant identifying the property to be seized, naming or describing the person or place to be searched and specifying the hours when it may be executed. The warrant shall be directed to any law enforcement officer, without naming an officer, and it shall state the basis for its issuance and the names of the persons whose affidavits or testimony have been taken in support thereof. The warrant shall direct that it be returned to the judge who issued it.

(b) A Superior Court judge may issue a search warrant upon sworn oral testimony of an applicant who is not physically present. Such sworn oral testimony may be communicated to the judge by telephone, radio or other means of electronic communication. The judge shall contemporaneously record such sworn oral testimony by means of a tape-recording device or stenographic machine if such are available; otherwise, adequate longhand notes summarizing what is said shall be made by the judge. Subsequent to taking the oath, the applicant must identify himself or herself, specify the purpose of the request and disclose the basis of his or her information. This sworn testimony shall be deemed to be an affidavit for the purposes of issuance of a search warrant. A warrant may issue if the judge is satisfied that exigent circumstances exist sufficient to excuse the failure to obtain a written warrant, and that sufficient grounds for granting the application have been shown. Upon approval, the judge shall memorialize the specific terms of the authorization to search and shall direct the applicant to enter this authorization verbatim on a form, or other appropriate paper, designated the duplicate original search warrant. This warrant shall be deemed a search warrant for the purpose of R. 3:5. The judge shall direct the applicant to print the judge's name on the warrant. The judge shall also contemporaneously record factual determinations as to exigent circumstances. If a recording is made, the judge shall direct that the testimony be transcribed as soon as practicable. This transcribed record shall be certified by the judge. The judge shall promptly issue a written confirmatory search warrant and shall enter thereon the exact time of issuance of the duplicate original warrant. In all other respects, the method of issuance and contents of the warrant shall be that required by subsection (a) of this rule.
Note: Source-R.R. 3:2A-3, 3:2A-4 (second sentence); former rule redesignated paragraph (a) and paragraph (b) adopted July 26, 1984 to be effective September 10, 1984; paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994.

3:5-4. Secrecy

A search warrant shall be issued with all practicable secrecy and the affidavit or testimony upon which it is based shall not be filed with the criminal division manager's office or made public in any way prior to execution. The disclosure, prior to its execution, that a warrant has been applied for or issued, except as necessary for its execution, may constitute a contempt. After execution a warrant and accompanying papers shall remain confidential except as provided in R. 3:5-6(c).
Note: Source-R.R. 3:2A-9 (first paragraph); amended July 13, 1994 to be effective January 1, 1995; amended July 12, 2002 to be effective September 3, 2002.

3:5-5. Execution and Return With Inventory

(a) A search warrant may be executed by any law enforcement officer, including the Attorney General or county prosecutor or sheriff or members of their staffs. The warrant must be executed within 10 days after its issuance and within the hours fixed therein by the judge issuing it, unless for good cause shown the warrant provides for its execution at any time of day or night. The officer taking property under the warrant shall give to the person from whom or from whose premises the property is taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property is taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made and verified by the officer executing the warrant in the presence of the person from whom or from whose premises the property is taken or, if such person is not present, in the presence of some other person. The judge shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.

(b) If a duplicate original search warrant has been executed, the person who executed the warrant shall enter the exact time of its execution on its face. If a tape or stenographic record of the oral testimony has been made, the judge shall require the applicant to sign a transcript of that record. In all other respects, execution and return of the duplicate original search warrant shall be that required by paragraph (a) of this rule.

Note: Source-R.R. 3:2A-4; former rule redesignated as paragraph (a) and paragraph (b) adopted July 26, 1984 to be effective September 10, 1984.

3:5-6. Filing; Confidentiality

(a) Except as provided in subsection b, the judge who issued the warrant shall attach thereto the return, inventory, and all other papers in connection therewith, including the affidavits and a transcript or summary of any oral testimony and, where applicable, a duplicate original search warrant, and shall file them with the criminal division manager's office of the county wherein the property was seized. When a tape or stenographic record has been made, it shall also be filed by the judge.

(b) In the event a search warrant is issued based in whole or in part on oral, wire, or electronic communications authorized by a wiretap judge under the provisions of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq., the judge who issued the warrant shall file only with the wiretap judge the application for the search warrant and all other affidavits, documents and exhibits submitted in connection therewith, as well as any tape or stenographic record of oral testimony taken by the wiretap judge. The judge who issued the warrant shall file a notice of such filing with the wiretap judge, as aforesaid, together with the warrant and, where applicable, a duplicate original search warrant and inventory with the criminal division manager's office of the county wherein the property was seized.

(c) All warrants that have been completely executed and the papers accompanying them, including the affidavits, transcript or summary of any oral testimony, duplicate original search warrant, return and inventory, and any original tape or stenographic recording shall be confidential except that the warrant and accompanying papers shall be available for inspection and copying by the defendant as provided in R. 3:13-3 and by any person claiming to be aggrieved by an unlawful search and seizure upon notice to the county prosecutor for good cause shown.

Note: Source-R.R. 3:2A-5, 3:2A-9 (second paragraph). Amended June 29, 1973 to be effective September 10, 1973; amended July 26, 1984 to be effective September 10, 1984; paragraph designations and text of paragraph (b) adopted and paragraph (a) amended November 7, 1988 to be effective January 2, 1989; paragraphs (a) and (b) amended July 13, 1994, paragraph (c) amended December 9, 1994, to be effective January 1, 1995; paragraph (b) amended June 28, 1996 to be effective September 1, 1996; caption amended and paragraph (c) amended July 12, 2002 to be effective September 3, 2002.

3:5-7. Motion to Suppress Evidence and for Return of Property

(a) Notice; Time. On notice to the prosecutor of the county in which the matter is pending or threatened, to the applicant for the warrant if the search was with a warrant, and to co- indictees, if any, and in accordance with the applicable provisions of R. 1:6-3 and R. 3:10, a person claiming to be aggrieved by an unlawful search and seizure and having reasonable grounds to believe that the evidence obtained may be used against him or her in a penal proceeding, may apply to the Superior Court only and in the county in which the matter is pending or threatened to suppress the evidence and for the return of the property seized even though the offense charged or to be charged may be within the jurisdiction of a municipal court. Such motion shall be made pursuant to R. 3:10-2.

(b) Briefs. If the search was made with a warrant, a brief stating the facts and arguments in support of the motion shall be submitted with the notice of motion. The State shall, within ten days thereafter, submit a brief stating the facts and arguments in support of the search to which the movant may reply by brief submitted no later than three days before the hearing. If the search was made without a warrant, the State shall, within 15 days of the filing of the motion, file a brief, including a statement of the facts as it alleges them to be, and the movant shall file a brief and counter statement of facts no later than three days before the hearing.

(c) Hearing. All such motions by co- indictees shall be consolidated for determination in a single hearing, except for good cause shown. If material facts are disputed, testimony thereon shall be taken in open court.

(d) Appellate Review. Denial of a motion made pursuant to this rule may be reviewed on appeal from a judgment of conviction notwithstanding that such judgment is entered following a plea of guilty.

(e) Return of Property. If a motion made pursuant to this rule is granted, the property shall be delivered to the person entitled thereto, unless otherwise subject to lawful detention, and shall not be admissible in evidence in any court. Delivery of the property need not be made, however, until the expiration of the time within which the State may obtain leave to appeal pursuant to R. 2:5-6.

(f) Consequences of Failure to Move. If a timely motion is not made in accordance with this rule, the defendant shall be deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained.

(g) Effect of Irregularity in Warrant. In the absence of bad faith, no search or seizure made with a search warrant shall be deemed unlawful because of technical insufficiencies or irregularities in the warrant or in the papers or proceedings to obtain it, or in its execution.

Note: Source-R.R. 3:2A-6(a)(b). Paragraph (a) amended, paragraphs (b), (c), (d) adopted and former paragraphs (b), (c), (d) redesignated as (e), (f), (g) respectively January 28, 1977 to be effective immediately; paragraphs (a) and (c) amended July 16, 1979 to be effective September10, 1979; paragraph (a) amended July 16, 1981 to be effective September 14, 1981; paragraph (a) amended June 9, 1989 to be effective June 19, 1989; paragraph (a) amended July 13, 1994 to be effective January 1, 1995; paragraph (a) amended January 5, 1998 to be effective February 1, 1998.
3:5-8. Search and Seizure Without Search Warrant

Rule 3:5 shall not be construed to make illegal a lawful search and seizure made without a search warrant.
Note: Source-R.R. 3:2A-8.

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. Do you understand that if you plead guilty:


a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.

4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.

6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.

8. You must wait 5-10 years to expunge a first offense. 2C:52-3

9. You could be put on Probation.

10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.

11. You may be required to do Community Service.

12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.

13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.

14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.

15. You lose the presumption against incarceration in future cases. 2C:44-1

16. You may lose your right to vote.

The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.

Jail for Crimes and Disorderly Conduct:

If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.

NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;

(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;

(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;

(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.

2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:

a. (1) $200,000.00 when the conviction is of a crime of the first degree;

(2) $150,000.00 when the conviction is of a crime of the second degree;

b. (1) $15,000.00 when the conviction is of a crime of the third degree;

(2) $10,000.00 when the conviction is of a crime of the fourth degree;

c. $1,000.00, when the conviction is of a disorderly persons offense;

d. $500.00, when the conviction is of a petty disorderly persons offense;

If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500

Facts About Homosexuality and Child Molestation

Facts About Homosexuality and Child Molestation


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Members of disliked minority groups are often stereotyped as representing a danger to the majority's most vulnerable members. For example, Jews in the Middle Ages were accused of murdering Christian babies in ritual sacrifices. Black men in the United States were often lynched after being falsely accused of raping White women.

In a similar fashion, gay people have often been portrayed as a threat to children. Back in 1977, when Anita Bryant campaigned successfully to repeal a Dade County (FL) ordinance prohibiting anti-gay discrimination, she named her organization "Save Our Children," and warned that "a particularly deviant-minded [gay] teacher could sexually molest children" (Bryant, 1977, p. 114). [Bibliographic references are on a different web page]


In recent years, antigay activists have routinely asserted that gay people are child molesters. This argument was often made in debates about the Boy Scouts of America's policy to exclude gay scouts and scoutmasters. More recently, in the wake of Rep. Mark Foley's resignation from the US House of Representatives in 2006, antigay activists and their supporters seized on the scandal to revive this canard.


It has also been raised in connection with scandals about the Catholic church's attempts to cover up the abuse of young males by priests. Indeed, the Vatican's early response to the 2002 revelations of widespread Church cover-ups of sexual abuse by priests was to declare that gay men should not be ordained.


Public belief in the stereotype


The number of Americans who believe the myth that gay people are child molesters has declined substantially. In a 1970 national survey, more than 70% of respondents agreed with the assertions that "Homosexuals are dangerous as teachers or youth leaders because they try to get sexually involved with children" or that "Homosexuals try to play sexually with children if they cannot get an adult partner."1


By contrast, in a 1999 national poll, the belief that most gay men are likely to molest or abuse children was endorsed by only 19% of heterosexual men and 10% of heterosexual women. Even fewer – 9% of men and 6% of women – regarded most lesbians as child molesters.


Consistent with these findings, Gallup polls have found that an increasing number of Americans would allow gay people to be elementary school teachers. For example, the proportion was 54% in 2005, compared to 27% in 1977.


Examining the Research


Even though most Americans don't regard gay people as child molesters, confusion remains widespread in this area. To understand the facts, it is important to examine the results of scientific research. However, when we evaluate research on child molestation, our task is complicated by several problems.
One problem is that none of the studies in this area have obtained data from a probability sample, that is, a sample that can be assumed to be representative of the population of all child molesters. Rather, most research has been conducted only with convicted perpetrators or with pedophiles who sought professional help. Consequently, they may not accurately describe child molesters who have never been caught or have not sought treatment.


Terminology


A second problem is that the terminology used in this area is often confusing and can even be misleading. We can begin to address that problem by defining some basic terms.
Pedophilia and child molestation are used in different ways, even by professionals. Pedophilia usually refers to an adult psychological disorder characterized by a preference for prepubescent children as sexual partners; this preference may or may not be acted upon. The term hebephilia is sometimes used to describe adult sexual attractions to adolescents or children who have reached puberty.


Whereas pedophilia and hebephilia refer to psychological propensities, child molestation and child sexual abuse are used to describe actual sexual contact between an adult and someone who has not reached the legal age of consent. In this context, the latter individual is referred to as a child, even though he or she may be a teenager.


Although the terms are not always applied consistently, it is useful to distinguish between pedophiles/hebephiles and child molesters/abusers. Pedophilia and hebephilia are diagnostic labels that refer to psychological attractions. Not all pedophiles and hebephiles actually molest children; an adult can be attracted to children or adolescents without ever actually engaging in sexual contact with them.


Child molestation and child sexual abuse refer to actions, and don't imply a particular psychological makeup or motive on the part of the perpetrator. Not all incidents of child sexual abuse are perpetrated by pedophiles or hebephiles; in some cases, the perpetrator has other motives for his or her actions and does not manifest an ongoing pattern of sexual attraction to children.


Thus, not all child sexual abuse is perpetrated by pedophiles (or hebephiles) and not all pedophiles and hebephiles actually commit abuse. Consequently, it is important to use terminology carefully.


Another problem related to terminology arises because sexual abuse of male children by adult men2 is often referred to as "homosexual molestation." The adjective "homosexual" (or "heterosexual" when a man abuses a female child) refers to the victim's gender in relation to that of the perpetrator. Unfortunately, people sometimes mistakenly interpret it as referring to the perpetrator's sexual orientation.


As an expert panel of researchers convened by the National Academy of Sciences noted in a 1993 report: "The distinction between homosexual and heterosexual child molesters relies on the premise that male molesters of male victims are homosexual in orientation. Most molesters of boys do not report sexual interest in adult men, however" (National Research Council, 1993, p. 143, citation omitted).


To avoid this confusion, it is preferable to refer to men's sexual abuse of boys with the more accurate label of male-male molestation. Similarly, it is preferable to refer to men's abuse of girls as male-female molestation. These labels are more accurate because they describe the sex of the individuals involved but don't implicitly convey unwarranted assumptions about the perpetrator's sexual orientation.


Typologies of Offenders


The distinction between a victim's gender and a perpetrator's sexual orientation is important because many child molesters don't really have an adult sexual orientation. They have never developed the capacity for mature sexual relationships with other adults, either men or women. Instead, their sexual attractions focus on children – boys, girls, or children of both sexes.
Over the years, this fact has been incorporated into various systems for categorizing child molesters. For example, Finkelhor and Araji (1986) proposed that perpetrators' sexual attractions should be conceptualized as ranging along a continuum – from exclusive interest in children at one extreme, to exclusive interest in adult partners at the other end.


Typologies of offenders have often included a distinction between those with an enduring primary preference for children as sexual partners and those who have established age-appropriate relationships but become sexually involved with children under unusual circumstances of extreme stress. Perpetrators in the first category – those with a more or less exclusive interest in children – have been labeled fixated. Fixation means "a temporary or permanent arrestment of psychological maturation resulting from unresolved formative issues which persist and underlie the organization of subsequent phases of development" (Groth & Birnbaum, 1978, p. 176). Many clinicians view fixated offenders as being "stuck" at an early stage of psychological development.


By contrast, other molesters are described as regressed. Regression is "a temporary or permanent appearance of primitive behavior after more mature forms of expression had been attained, regardless of whether the immature behavior was actually manifested earlier in the individual's development" (Groth & Birnbaum, 1978, p. 177). Regressed offenders have developed an adult sexual orientation but under certain conditions (such as extreme stress) they return to an earlier, less mature psychological state and engage in sexual contact with children.


Some typologies of child molesters divide the fixation-regression distinction into multiple categories, and some include additional categories as well (e.g., Knight, 1989).


For the present discussion, the important point is that many child molesters cannot be meaningfully described as homosexuals, heterosexuals, or bisexuals (in the usual sense of those terms) because they are not really capable of a relationship with an adult man or woman. Instead of gender, their sexual attractions are based primarily on age. These individuals – who are often characterized as fixated – are attracted to children, not to men or women.


Using the fixated-regressed distinction, Groth and Birnbaum (1978) studied 175 adult males who were convicted in Massachusetts of sexual assault against a child. None of the men had an exclusively homosexual adult sexual orientation. 83 (47%) were classified as "fixated;" 70 others (40%) were classified as regressed adult heterosexuals; the remaining 22 (13%) were classified as regressed adult bisexuals. Of the last group, Groth and Birnbaum observed that "in their adult relationships they engaged in sex on occasion with men as well as with women. However, in no case did this attraction to men exceed their preference for women....There were no men who were primarily sexually attracted to other adult males..." (p.180).


Other Approaches


Other researchers have taken different approaches, but have similarly failed to find a connection between homosexuality and child molestation. Dr. Carole Jenny and her colleagues reviewed 352 medical charts, representing all of the sexually abused children seen in the emergency room or child abuse clinic of a Denver children's hospital during a one-year period (from July 1, 1991 to June 30, 1992). The molester was a gay or lesbian adult in fewer than 1% of cases in which an adult molester could be identified – only 2 of the 269 cases (Jenny et al., 1994).

In yet another approach to studying adult sexual attraction to children, some Canadian researchers observed how homosexual and heterosexual adult men responded to slides of males and females of various ages (child, pubescent, and mature adult). All of the research subjects were first screened to ensure that they preferred physically mature sexual partners. In some of the slides shown to subjects, the model was clothed; in others, he or she was nude. The slides were accompanied by audio recordings. The recordings paired with the nude models described an imaginary sexual interaction between the model and the subject. The recordings paired with the pictures of clothed models described the model engaging in neutral activities (e.g., swimming). To measure sexual arousal, changes in the subjects' penis volume were monitored while they watched the slides and listened to the audiotapes. The researchers found that homosexual males responded no more to male children than heterosexual males responded to female children (Freund et al., 1989).


In summary, each of these studies failed to support the hypothesis that homosexual males are more likely than heterosexual men to molest children or to be sexually attracted to children or adolescents.


The Mainstream View


Reflecting the results of these and other studies, as well as clinical experience, the mainstream view among researchers and professionals who work in the area of child sexual abuse is that homosexual and bisexual men do not pose any special threat to children. For example, in one review of the scientific literature, noted authority Dr. A. Nicholas Groth wrote:
Are homosexual adults in general sexually attracted to children and are preadolescent children at greater risk of molestation from homosexual adults than from heterosexual adults? There is no reason to believe so. The research to date all points to there being no significant relationship between a homosexual lifestyle and child molestation. There appears to be practically no reportage of sexual molestation of girls by lesbian adults, and the adult male who sexually molests young boys is not likely to be homosexual (Groth & Gary, 1982, p. 147).


In a later literature review, Dr. Nathaniel McConaghy (1998) similarly cautioned against confusing homosexuality with pedophilia. He noted, "The man who offends against prepubertal or immediately postpubertal boys is typically not sexually interested in older men or in women" (p. 259).


This well known lack of a linkage between homosexuality and child molestation accounts for why relatively little research has directly addressed the issue. For example, a 1998 comprehensive review of published empirical research on the sexual abuse of boys reported only one study (the 1994 study by Jenny and colleagues, cited above) that included data about the self-reported sexual orientation of perpetrators (Holmes & Slap, 1998).


Proving something that is already widely known simply isn't a priority for scientists. Indeed, a commentary that accompanied publication of the study by Jenny et al. in Pediatrics noted that debates about gay people as molesters "have little to do with everyday child abuse" and lamented that they distract lawmakers and the public from dealing with the real problem of children's sexual mistreatment (Krugman, 1994).


Other Sexual Abuse


In scandals involving the Catholic church, the victims of sexual abuse were often adolescent boys rather than small children. Similarly, the 2006 congressional page scandal involved males who were at least 16 years old.

These are cases in which the term pedophilia – referring as it does to attractions to prepubescent children – can cause confusion. Rather than pedophilia, the accusations stemming from these scandals raised the question of whether gay people shouldn't be trusted in positions of authority where there is any opportunity for sexually harassing or abusing others.


Here again, there is no inherent connection between an adult's sexual orientation and her or his propensity for endangering others. Scientific research provides no evidence that homosexual people are less likely than heterosexuals to exercise good judgment and appropriate discretion in their employment settings. There are no data, for example, showing that gay men and lesbians are more likely than heterosexual men and women to sexually harass their subordinates in the workplace. Data from studies using a variety of psychological measures do not indicate that gay people are more likely than heterosexuals to possess any psychological characteristics that would make them less capable of controlling their sexual urges, refraining from the abuse of power, obeying rules and laws, interacting effectively with others, or exercising good judgment in handling authority. As explained elsewhere on this site, sexual orientation is not a mental illness nor is it inherently associated with impaired psychological functioning.


Gay men and lesbians function effectively in a wide variety of employment settings. The research literature doesn't reveal any differences between heterosexuals, bisexuals, and homosexuals in job performance or ability to properly exercise authority in supervisory roles. As indicated by workplace policies around the United States, a large and growing number of private and public employers do not perceive a problem with hiring gay and bisexual people as employees or managers. Many corporations, educational institutions, and local governments have adopted policies that prohibit discrimination against employees on the basis of sexual orientation. Many of those organizations provide benefits such as health insurance for employees' same-sex partners. Indeed, one widely cited reason for offering such benefits is that they enable a company to remain competitive by attracting high quality employees who happen to be gay, lesbian, or bisexual.


Thus, there is no factual basis for organizations to avoid hiring homosexual or bisexual people, simply on the basis of their sexual orientation, for positions that involve responsibility for or supervision of others, whether children, adolescents, or adults.


What About Claims That Scientific Research Proves Gay Men Are Likely To Molest Children?


Some conservative groups have argued that scientific research strongly supports their claims that homosexuality and pedophilia are linked. The Family Research Council has produced what is perhaps the most extensive attempt to document this claim. It is an article by Timothy J. Dailey titled Homosexuality and Child Abuse.


With 76 footnotes, many of them referring to papers in scientific journals, it appears at first glance to be a thorough and scholarly discussion of the issue. On further examination, however, its central argument – that "the evidence indicates that homosexual men molest boys at rates grossly disproportionate to the rates at which heterosexual men molest girls" – doesn't hold up.


In the following section, the main sources cited by Dailey and the FRC to support their claim are reviewed. The papers are listed in the same order in which they are first cited by the FRC article.

- Freund et al. (1989). Heterosexuality, homosexuality, and erotic age preference. Journal of Sex Research, 26, 107-117.


- This article is discussed above in the "Other Approaches" section. As the FRC concedes, it contradicts their argument. The abstract summarizes the authors' conclusion: "Findings indicate that homosexual males who preferred mature partners responded no more to male children than heterosexual males who preferred mature partners responded to female children."


- Silverthorne & Quinsey. (2000). Sexual partner age preferences of homosexual and heterosexual men and women. Archives of Sexual Behavior, 29, 67-76.


- The FRC cites this study to challenge the Freund et al. data (see the previous paper above). However, the methodologies were quite different. Freund and his colleagues used a sample that included sex offenders and they assessed sexual arousal with a physiological measure similar to that described below for the 1988 Marshall et al. study. Silverthorne and Quinsey used a sample of community volunteers who were asked to view pictures of human faces and use a 7-point scale to rate their sexual attractiveness. The apparent ages of the people portrayed in the pictures was originally estimated by Dr. Silverthorne to range from 15 to 50. However, a group of independent raters perceived the male faces to range in age from 18 to 58, and the female faces to range from 19 to 60.

The article doesn't report the data in great detail (e.g., average ratings are depicted only in a graphic; the actual numbers aren't reported) and the authors provide contradictory information about the rating scale (they describe it as a 7-point scale but also say it ranged from 0 to 7, which constitutes an 8-point scale). In either case, it appears that none of the pictures was rated as "very sexually attractive" (a rating of 7). Rather, the highest average ratings were approximately 5.

On average, gay men rated the 18-year old male faces the most attractive (average rating = about 5), with attractiveness ratings declining steadily for older faces. They rated the 58-year old male faces 2, on average. By contrast, heterosexual men rated the 25-year old female faces the most attractive (about 5), with the 18- and 28-year old female faces rated lower (between 2 and 3) and the 60-year old female faces rated the least attractive (about 1).

A serious problem with this study is that the researchers didn't control for the possibility that some of the faces pictured in the photos might simply have been more or less physically attractive than the others, independent of their age or gender. The researchers explicitly acknowledged this shortcoming, speculating that the women's faces in the 25-year old group might have been more attractive than women's faces in the other age groups. But they didn't address the possibility that the attractiveness of the male and female faces may not have been comparable.

This issue could have been addressed in various ways. For example, prior to collecting data, the researchers could have started with a large number of photographs and asked a group of independent raters to evaluate the general physical attractiveness of the face in each photo; these ratings could have been used to select photos for the experiment that were equivalent in attractiveness. Getting independent ratings of experimental stimuli in this way is a common procedure in social psychological research.  Thus, even if one accepts the questionable assumption that this study is relevant, it doesn't support the FRC's contention that gay men are more likely than heterosexual men to be child molesters for several reasons:
- the researchers failed to control for the varying attractiveness of the different photos;
- all of the faces portrayed in the photos were perceived to be at least 18; and
- the study merely assessed judgments of sexual attractiveness rather than the research participants' sexual arousal.


- Blanchard et al. (2000). Fraternal birth order and sexual orientation in pedophiles. Archives of Sexual Behavior, 29, 463-478.


- This study categorized convicted sex offenders according to whether they molested or reported sexual attraction to boys only, girls only, or both boys and girls. These groups were labeled, respectively, homosexual pedophiles, heterosexual pedophiles, and bisexual pedophiles. This classification referred to their attractions to children. Adult sexual orientation (or even whether the men had an adult sexual orientation) wasn't assessed.


- Elliott et al. (1995). Child sexual abuse prevention: What offenders tell us. Child Abuse & Neglect, 19, 579-594.


- In this study, child sex offenders were interviewed. Their sexual orientation (gay, heterosexual, bisexual) wasn't assessed. The authors drew from their findings to suggest strategies for how parents and children can prevent sexual victimization. It is noteworthy that none of those strategies involved avoiding gay men.


- Jenny et al. (1994). Are children at risk for sexual abuse by homosexuals? Pediatrics, 94, 41-44.


- This study, described above in the section on "Other Approaches," contradicts the FRC's argument. The FRC faults the study because the researchers didn't directly interview perpetrators but instead relied on the victims' medical charts for information about the offender's sexual orientation. However, other studies cited favorably by the FRC (and summarized in this section) similarly relied on chart data (Erickson et al., 1988) or did not directly assess the sexual orientation of perpetrators (Blanchard et al. 2000; Elliott et al. 1995; Marshall et al., 1988). Thus, the FRC apparently considers this method a weakness only when it leads to results they dislike.


- Marshall et al. (1988). Sexual offenders against male children: Sexual preference. Behaviour Research and Therapy, 26, 383-391.


- In this study, the researchers compared 21 men who had sexually molested a male under 16 years (and at least 5 years younger than themselves) to 18 unemployed men who were not known to have molested a child. Over a series of sessions, each man watched color slides of nude males and females of various ages and listened to audiotaped descriptions of both coercive and consensual sexual interactions between a man and a boy. During the sessions, each man sat in a private booth, where he was instructed to lower his trousers and underwear and attach a rubber tube to his penis. The tube detected any changes in penis circumference, with increases interpreted as indicating sexual arousal.

The FRC cites this study as showing that "a homosexual and a heterosexual subgroup can be delineated among these offenders." This is true but hardly relevant to their claims.

The researchers categorized 7 offenders who were more aroused overall by the male nudes than the female nudes as the homosexual subgroup. They categorized 14 offenders who were more aroused overall by the female nudes as the heterosexual subgroup. The offenders were not asked their sexual orientation (gay, straight, bisexual) and the paper does not report any information about the nature of the offenders' adult sexual relationships, or even if they had any such relationships.


- Bickley & Beech. (2001). Classifying child abusers: Its relevance to theory and clinical practice. International Journal Of Offender Therapy And Comparative Criminology, 45, 51-69.


- This is a literature review and theoretical paper that discusses the strengths and weaknesses of various systems for classifying child molesters. In citing this study, the FRC says it:
refers to homosexual pedophiles as a "distinct group." The victims of homosexual pedophiles "were more likely to be strangers, that they were more likely to have engaged in paraphiliac behavior separate from that involved in the offence, and that they were more likely to have past convictions for sexual offences.... Other studies [showed a] greater risk of reoffending than those who had offended against girls" and that the "recidivism rate for male-victim offenders is approximately twice that for female-victim offenders."


- In reality, however, the paper was summarizing the findings of other studies, not reporting new data. In the passage excerpted by the FRC, the authors were discussing published papers that used a classification system focusing entirely on the sex of victims (not whether the perpetrator is straight or gay). Here is the complete text (the passages that FRC omitted are highlighted):

"Grubin and Kennedy (1991) reported that when dividing sex offenders based simply on the sex of their victims, offenders against boys stood out as a distinct group. They noted that their victims were more likely to be strangers, that they were more likely to have engaged in paraphiliac behavior separate from that involved in the offence, and they were more likely to have past convictions for sexual offences. Other studies have employed the sex-of-victim approach in the prediction of future risk, with offenders who have sexually abused boys or both boys and girls reported as having more victims and being at greater risk of reoffending than those who had offended against girls only [bibliographic references omitted]. In the nondiagnostic remarks, DSM-IV (APA, 1994) claims that the recidivism rate for male-victim offenders is approximately twice that for female-victim offenders, and although not demonstrating such a marked difference, Furby, Weinrott, and Blackshaw (1989), in an extensive review of recidivism rates, found that reoffending was higher for male victim offenders. [¶] However, the sex-of-victim distinction has not been consistently found, and contrasting findings have been reported in studies that have demonstrated no differences in recidivism rates between the groups [bibliographic references omitted]. Furthermore, Abel, Becker, Murphy, and Flanagan (1981) found that those child molesters who offended against girls reported more than twice as many victims as those who had offended against boys, a finding contrary to the hypothesized outcome." (p. 56)


- Jay & Young. (1977). The gay report: Lesbians and gay men speak out about sexual experiences and lifestyles. New York: Summit.


- This book, published more than 30 years ago by a team of writer-activists, is not a scientific study. The authors' survey methodology is not reported in detail and, because it was a journalistic work, the survey was never subjected to scientific peer review.


- Erickson et al. (1988). Behavior patterns of child molesters. Archives of Sexual Behavior, 17, 77-86.


- This study was based on a retrospective review of the medical records of male sex offenders admitted to the Minnesota Security Hospital between 1975 and 1984. Apparently, 70% of the men abused girls, 26% abused boys, and 4% abused children of both sexes. (The paper is unclear in that it doesn't explain how perpetrators with multiple victims were counted.) The paper asserts in passing that "Eighty-six percent of offenders against males described themselves as homosexual or bisexual" (p. 83). However, no details are provided about how this information was ascertained, making it difficult to interpret or evaluate. Nor did the authors report the number of homosexual versus bisexual offenders, a distinction that the Groth and Birnbaum study (described above) indicates is relevant.


In summary, the scientific sources cited by the FRC report do not support their argument. Most of the studies they referenced did not even assess the sexual orientation of abusers. Two studies explicitly concluded that sexual orientation and child molestation are unrelated. Notably, the FRC failed to cite the 1978 study by Groth and Birnbaum, which also contradicted their argument. Only one study (Erickson et al., 1988) might be interpreted as supporting the FRC argument, and it failed to detail its measurement procedures and did not differentiate bisexual from homosexual offenders.


Do Any Studies Claim To Show That H
omosexuals Are More Likely To Molest Children?


One individual has claimed to have data that prove homosexuals to be child molesters at a higher rate than heterosexuals. That person is Paul Cameron. As detailed elsewhere on this site, Cameron's survey data are subject to so many methodological flaws as to be virtually meaningless. Even so, his assertions are sometimes quoted by antigay organizations in their attempts to link homosexuality with child sexual abuse.


In a 1985 article published in Psychological Reports, Cameron purported to review published data to answer the question, "Do those who commit homosexual acts disproportionately incorporate children into their sexual practices?" (p. 1227). He concluded that "at least one-third of the sexual attacks upon youth are homosexual" (p. 1228) and that "those who are bi- to homosexual are proportionately much more apt to molest youth" than are heterosexuals (p. 1231).


Cameron's claims hinge on the fallacious assumption that all male-male molestations are committed by homosexuals. Moreover, a careful reading of Cameron's paper reveals several false statements about the literature he claimed to have reviewed.


For example, he cited the Groth and Birnbaum (1978) study mentioned previously as evidencing a 3:2 ratio of "heterosexual" (i.e., female victim) to "homosexual" (i.e., male victim) molestations, and he noted that "54% of all the molestations in this study were performed by bisexual or homosexual practitioners" (p. 1231). However, Groth and Birnbaum reported that none of the men in their sample had an exclusively homosexual adult sexual orientation, and that none of the 22 bisexual men were more attracted to adult males than to adult females. The "54%" statistic reported by Cameron doesn't appear anywhere in the Groth and Birnbaum (1978) article, nor does Cameron explain its derivation.


It is also noteworthy that, although Cameron assumed that the perpetrators of male-male molestations were all homosexual, he assumed that not all male-female molestations were committed by heterosexuals. He incorporated a "bisexual correction" into his data manipulations to increase further his estimate of the risk posed to children by homosexual/bisexual men.


In the latter half of his paper, Cameron considered whether "homosexual teachers have more frequent sexual interaction with their pupils" (p. 1231). Based on 30 instances of sexual contact between a teacher and pupil reported in ten different sources published between 1920 and 1982, Cameron concluded that "a pupil would appear about 90 times more likely to be sexually assaulted by a homosexual practitioner" (p.1232); the ratio rose to 100 times when Cameron added his bisexual correction.


This ratio is meaningless because no data were obtained concerning the actual sexual orientation of the teachers involved; as before, Cameron assumed that male-male contacts were perpetrated by homosexuals. Furthermore, Cameron's rationale for selecting particular sources appears to have been completely arbitrary. He described no systematic method for reviewing the literature, and apparently never reviewed the voluminous literature on the sexual development of children and adolescents. His final choice of sources appears to have slanted his findings toward what Cameron described as "the relative absence in the scientific literature of heterosexual teacher-pupil sexual events coupled with persistent, albeit infrequent, homosexual teacher-pupil sexual interactions" (p. 1232).


A subsequent paper by Cameron and others (Cameron, Proctor, Coburn, Forde, Larson, & Cameron, 1986) described data collected in a door-to-door survey in seven U.S. cities and towns, and generally repeated the conclusions reached in Cameron (1985). Even Cameron himself admitted that his conclusions in this study are "based upon small numbers of data points" (Cameron, 2005, p. 230). As before, male-male sexual assaults were referred to as "homosexual" molestations (e.g., Abstract, p.327) and the perpetrators' sexual orientation apparently was not assessed. This study also suffers from fatal methodological problems, which are detailed elsewhere on this site.


In yet another article published in Psychological Reports, Cameron claimed to have reviewed data about sexual abuse by foster parents in Illinois and found that 34% of the perpetrators had abused a foster child of their own sex, that is, female-female or male-male abuse (Cameron, 2005). Not only did Cameron again make the fallacious claim that all male-male molestations are committed by homosexuals, he also made the same claim about female-female molestations. Once again, he had no data about the actual sexual orientations of the molesters.


Cameron continues to produce reports that essentially repeat the same inaccurate claims. Perhaps one of the best indicators of his diminished credibility in this area is that his work was not even cited in the 2004 FRC report discussed in detail above.


Conclusion


The empirical research does not show that gay or bisexual men are any more likely than heterosexual men to molest children. This is not to argue that homosexual and bisexual men never molest children. But there is no scientific basis for asserting that they are more likely than heterosexual men to do so. And, as explained above, many child molesters cannot be characterized as having an adult sexual orientation at all; they are fixated on children.


Notes


1. The survey was conducted under the auspices of the Kinsey Institute (Klassen, Williams, & Levitt, 1989). (return to text)


2. Sexual abuse by women occurs but has not been well documented. Perhaps it is not surprising, therefore, that the child molester stereotype is applied more often to gay men than to lesbians. (return to text)


All original content of this website is copyright © 1997-2013 by Gregory M. Herek, Ph.D.
All rights reserved



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