FSORA flags female sex offenders as 'high risk' without data, imposes stricter parole

State law requires the California Department of Corrections and Rehabilitation (CDCR) to assess the risk of sexual re-offense of every person who is both required to register as a sex offender and on parole. (Penal Code §§ 290.04, 290.06.)  The stated purpose of this requirement is to increase public safety.

That law anticipates that CDCR will use an instrument that has been validated for the assessments. (Penal Code § 290.04.)  The assessment of adult male sex offenders who are both required to register and on parole is straightforward. First the Static-99 instrument and then the Static-99R instrument have been available for this purpose for decades. (Id. subd. (b)(1).)

The assessment of adult female offenders who are both required to register and on parole is much more complex. That is because there currently is no instrument, nor has there ever been a validated one available to assess the risk of re-offense for that population. The absence of a validated risk assessment for women is acknowledged by the official California state entity responsible for selecting the risk assessment instruments used by CDCR -- the SARATSO Review Committee. (Penal Code § 290.04.)  "SARATSO" stands for "State-Authorized Risk Assessment Tools for Sex Offenders." The SARATSO Review Committee has never selected a SARATSO for female offenders, stating that "at this time, there is no actuarial or structured professional judgment instrument validated to assess the risk of sexual recidivism for females."  (https://saratso.org/index.cfm?pid=1355, see "Female Who Sexually Offend FAQs")

The reason is simple: because women have an extremely low rate of sexual re-offense to begin with, it has not been possible for statisticians to assemble a large enough group of women from which factors can be identified that correlate with an elevated risk of re-offense. The absence of such research has precluded the development of a validated instrument that measures an elevated risk of sexual re-offense in women. The SARATSO Review Committee's website lists a number of publications discussing this. For example, the Committee cites research from scholars including Dr. Franca Cortoni, the leading expert of female sexual re-offense, who explains that "because of their low risk of sexual recidivism, female sexual offenders would virtually never be considered to pose a high risk for sexual recidivism" (Ibid.)

Nevertheless, CDCR internally created and is now using an instrument that has not been validated. That instrument, which CDCR calls the "Female Sex Offender Risk Assessment (FSORA)," has been required for use on female parolees by CDCR's regulations since for nearly a decade. (15 Cal. Code Regs. § 3573(b).) Notably, CDCR's regulatory filings disclose that the FSORA is not a validated risk assessment tool and also disclose that the FSORA has not been selected by the SARATSO Review Committee.

In its creation of the FSORA, CDCR favorably compared that instrument to the Static-99R because, in part, both instruments consider static factors such as convictions for non-sex-related offense, prior sex offenses and sexual offenses that involve stranger victims. Unlike the Static-99, however, the FSORA is not limited to static factors and instead includes case-by-case analyses that take into account comments or mitigating or aggravating factors chosen by the person conducting the assessment.

The application of FSORA to women required to register has resulted in the identification of many of those women as "high risk," despite the absence of statistical validation for this outcome. The identification of any person required to register as "high risk" results in significant restrictions. For example, a person identified as "high risk" can be placed on parole and supervised by CDCR solely for that reason, when they would otherwise be supervised at the county level upon release. (Penal Code § 3000.08(a)(4).) Parole supervision includes a wider range of restrictions and prohibitions as compared to probation supervision.

In addition, a person identified as "high risk" is placed on intensive and specialized parole supervision and required to report frequently to designated parole officers. (Penal Code § 3008(a).) Further, persons designated "high risk" who are on parole for certain offenses are prohibited from living within one-half mile of public or private schools including any or all of kindergarten and grades one through 12. (Penal Code § 3003(g).) This prohibition has severely restricted housing options for those identified as "high risk." And in some cases, those restrictions have resulted in homelessness with additional registration requirements. Specifically, a homeless registrant must register with local law enforcement every 30 days as compared to an annual registration requirement for most individuals convicted of a sex offense. (Penal Code § 290.011.)