Abstract

Excerpted From: Jessica M. Salerno, Mary C. Murphy and Bette L. Bottoms, Give the Kid a Break--but Only If He's Straight: Retributive Motives Drive Biases Against Gay Youth in Ambiguous Punishment Contexts, 20 Psychology, Public Policy, and Law 398 (November, 2014) (8 Footnotes/Referemces) (Full Document)

Two studies addressed how people punish juvenile sex offenders in ambiguous punishment contexts. Sex offender registry laws now make voluntary sexual activity between juveniles a registration-worthy offense in the U.S. Using contemporary prejudice theories as a theoretical framework, we tested whether the ambiguity surrounding the application of these laws to juveniles provides a context for expression of prejudice against gay youth. In the ambiguous context of 2 juveniles having consensual sex, people supported sex offender registration more for gay, versus heterosexual, offenders. This punishment discrimination did not emerge, however, in the societally less ambiguous context of an adult having sex with a juvenile. Study 2 revealed that punishment discrimination again emerged against gay male juveniles but not lesbian juveniles. Across both studies, punishment discrimination against gay juveniles was consistently mediated by retributive motives (moral outrage), but less consistently by utilitarian motives (concern about protecting society)-- the stated legislative purpose of registration.

Kaitlyn Hunt, an 18-year-old high school senior, was recently charged with lewd and lascivious battery for engaging in voluntary sexual activity with her 14-year-old freshman girlfriend (Harrison, 2013). After Kaitlyn turned 18, her girlfriend's parents reported the relationship to the police. Kaitlyn first rejected a plea bargain for a lesser child abuse charge to avoid house arrest and public stigmatization on the sex offender registry. Supporting her decision, her parents described sex offender registration as “life-changing ... a death sentence to all her future goals.” Eventually, Kaitlyn pled “no contest” to a set of charges that would not require her to register as a sex offender (battery, interference of child custody, and contributing to the dependency of a child). As a result, Kaitlyn is under house arrest for 2 years and on probation for 3 years (Corcoran & Lanee, 2013).

Is public, and perhaps lifelong, stigmatization as a sex offender an appropriate punishment in a case like Kaitlyn's? Similar cases of teenagers being registered as sex offenders for consensual sexual activity with peers have sparked a national debate in the media (Feyerick & Steffen, 2009) and academia (Trivits & Reppucci, 2002) regarding appropriate punishment in these cases. Convicted sex offenders must register information (e.g., name, address, offense, photograph) with the police that is publicly available online for 15 years to life. Sex offender registries were designed to protect the public from dangerous, repeat sex offenders preying upon children (Office of the Attorney General, 1999). Yet, consensual sexual activity among juvenile peers also qualifies as a sex offense under these laws (Adam Walsh Act, 2006)--even if both parties are underage and participating voluntarily (James, 2009). Further, juveniles are indeed registered in these cases (Human Rights Watch, 2007). Sex offender registration is a very severe punishment resulting in pervasive negative consequences, including job loss, home eviction, harassment, physical assault, property damage, isolation, loss of close relationships, shame, embarrassment, hopelessness, and so forth (e.g., Levenson, D'Amora, & Hern, 2007). Although we are unaware of scientific evidence regarding the frequency of this occurrence, advocacy organizations and news stories have reported several instances in which teenagers have committed suicide after being required or threatened with the requirement to register as a sex offender (Bellware, 2014; Human Rights Watch, 2007; News.com.au, 2013). Juvenile sex offender registration is particularly controversial because many critics argue that juveniles are less likely to recidivate and are more amenable to treatment, compared to adult sex offenders (Trivits & Reppucci, 2002).

As a result of these issues, there is considerable ambiguity surrounding whether it is appropriate to apply these extremely harsh sex offender registration laws to juveniles in these cases. In the current studies, we tested whether this ambiguity surrounding juvenile (but not adult) cases would lead to discrimination against a stigmatized group: gay youth. First, we will review contemporary prejudice theories to explain why prejudice is particularly likely to be expressed in ambiguous punishment contexts. Second, we will explain how the application of sex offender registry laws to juveniles engaged in voluntary sexual activity with a peer qualifies as a relatively ambiguous context. Third, we will review and propose punishment motives as potential psychological mechanisms underlying contemporary discrimination against gay youth in punishment decisions.

Theoretical Framework: Contemporary Prejudice Theories

Crandall and Eshleman (2003) reviewed and incorporated several contemporary ““two factor” models of racial prejudice (e.g., aversive racism [Gaertner & Dovidio, 1986], modern prejudice [McConahay, 1986], regressive racism [Rogers & Prentice-Dunn, 1981], automatic and controlled processes [Devine, 1989]) into their Justification-Suppression Model of Prejudice. The authors highlight (a) that people acquire prejudice toward racial out-groups, but also motivation to avoid expressing that prejudice, (b) suppression factors that reduce people's expression of prejudice, and (c) justification factors that facilitate people's expression of prejudice. In support of the current study predictions, the motivation to suppress prejudice is released when the situation is ambiguous because it is easier to justify prejudicial responses to the situation. As a result, discrimination is more likely to manifest when the situation is ambiguous (Crandall & Eshleman, 2003). Within their aversive racism framework, Dovidio and Gaertner (2004) similarly argue that, although blatant racial prejudice expression has declined in contemporary American life, many people maintain negative feelings about historically stigmatized groups. Given that it is less socially acceptable to express overtly racist sentiments in contemporary society, they find that discrimination is more likely to manifest in ambiguous contexts because the discrimination is less obvious to oneself and others. Thus, contemporary forms of racism are characterized by more subtle, indirect expressions of prejudice, such as disadvantaging minorities in nonobvious ways. Investigating these contemporary prejudice processes is particularly important given that they might contribute to the institutionalization of prejudice against stigmatized groups through selective punishment and incarceration in our legal system. Previous studies have indeed demonstrated a pattern of racial discrimination in legal decision making consistent within the aversive racism framework (for review, Dovidio, Gaertner, Penner, Pearson, & Norton, 2009). Specifically, people will judge a Black (vs. White) defendant more harshly if they have an excuse unrelated to race (e.g., incriminating evidence). Discrimination is eliminated, however, when people's concerns about appearing racist are triggered during the trial.

What about sexual prejudice? Although there have been investigations of sexual prejudice (e.g., Herek, 2000, 2009; Pettigrew & Tropp, 2006; Pirlott & Neuberg, 2014; Whitley & Kite, 2006), contemporary forms of prejudice against gays and lesbians have received limited empirical attention (Massey, 2009) relative to investigations of contemporary forms of racism. Similar to racial prejudice, blatant prejudice against gay individuals is somewhat subsiding. In the past, registration laws blatantly discriminated against gay individuals by making consensual gay sex a registration-worthy offense--even among consenting adults. Although these laws were overturned, many individuals remain registered publicly due to past convictions. Further, explicit antigay prejudice is declining more broadly (for review, Herek, 2009). In fact, the decline of explicit opposition to gay marriage reflects one of the largest changes in public opinion on a policy issue in the last decade--although many remain opposed (43%) (Pew Research Center, 2013).

Yet, subtle bias against gay individuals persists. One study demonstrated that confederates wearing a hat stating “Gay and proud” (vs. “Texan and proud”) did not experience blatant discrimination when inquiring about job opportunities. The gay (vs. control) confederates did, however, experience more subtle discrimination during interactions with store employees (e.g., the interactions were shorter and perceived more negatively, Hebl, Foster, Mannix, & Dovidio, 2002). In a similar study, store clerks helped confederates wearing a progay t-shirt less than confederates not wearing the progay t-shirt (Hendren & Blank, 2009). Although there have been some demonstrations of discrimination against gay individuals in legal settings (e.g., Quas, Bottoms, Haegerich, & Nysse-Carris, 2002; Salerno et al., in press; Stawiski, Dykema-Engblade, & Tindale, 2012; Walsh, 1994; Wiley & Bottoms, 2009, 2013), we know little relative to the decades of research investigating racial discrimination in our legal system (e.g., Meissner & Brigham, 2001; Mitchell, Haw, Pfeifer, & Meissner, 2005; Sommers & Ellsworth, 2001; Sweeney & Haney, 1992). Further, there is no research, to our knowledge, investigating factors that might exacerbate contemporary forms of sexual discrimination specifically (i.e., ambiguous legal punishment contexts). The current research addresses this gap in the literature.

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This research reveals how contemporary sexual prejudice can manifest in the criminal justice system, causing serious and potentially lifelong consequences for juveniles: public stigmatization as a sex offender. While there is much controversy and moral debate surrounding the prosecution and registration of teenagers for consensual sexual activity in general, the present findings are the first to reveal that current sex offender laws provide a context that disadvantages gay youth because their sexual behavior rouses moral outrage in community members. This research not only demonstrates that gay juveniles are particularly at risk for discriminatory punishment for their consensual sexual activity with peers, but also demonstrates that people have different levels of punitiveness toward gay versus lesbian youth.

Jessica M. Salerno, School of Social and Behavioral Sciences, Arizona State University

Mary C. Murphy, Department of Psychological and Brain Sciences, Indiana University

Bette L. Bottoms, Department of Psychology, University of Illinois at Chicago.