BERLIN, Conn. - Religious conservatives thought they'd struck a goldmine when Dr. Richard McCleary of UC-Irvine's Department of Criminology, Law and Society issued a report titled "Secondary Effects of 'Off-site' Sexually-Oriented Businesses," which claimed to study the adverse effects of 14 Texas adult stores which offered adult videos for rental or sale. McCleary claimed that even though no business took place on the premises of most of the stores except adult video rentals, that they nonetheless posed "large, statistically significant ambient crime victimization risks."
Here at last was the evidence the censors had been looking for, that the mere presence of sexually explicit videos on the premises of a retail business was enough to spark more police calls to the area than non-adult businesses in the same or similar areas.
The Berlin (CT) Town Council also thought it had come across a useful tool to control adult oriented stores, especially take-home-only stores, which its new Sexually Oriented Business (SOB) Ordinance defines as "any establishment having ... a substantial or significant portion of its stock in trade in Adult Books, Adult Videos or Adult Novelties, or any combination thereof." The McCleary report is cited in the ordinance, enacted Feb. 5, 2009, as one of the "materials and information regarding sexually oriented business" that it used to justify its new ordinance - and to justify denying an operating permit to the Very Intimate Pleasures (VIP) chain, which had recently sought to open its fourth store in Berlin [pronounced "BER-lin], a suburb of Hartford.
"Dan [Silver] and I have been fighting a lengthy battle for our client, and the case has been set to go to trial twice and has twice been continued on the eve of trial because the town keeps coming up with new evidence," reported First Amendment attorney Jennifer Kinsley. "The last continuance was because the town found that there has now been a study by Dr. McCleary where he purported to study adult businesses in San Antonio. It's long and drawn out, but basically what he concludes is that take-home-only adult businesses, which obviously are growing in number and popularity, cause secondary effects, and that's the first study of its kind to reach that conclusion."
Originally, Berlin's SOB ordinance defined a store as "adult" if more than 50% of its merchandise involved "specified sexual activities" or were "designed for or marketed primarily for stimulating human genital organs, sexual arousal or sadomasochistic use." But VIP's 15,000 square foot Berlin store had at most just 14% of what would traditionally be considered adult merchandise, with the rest of the stock comprised of lingerie, hosiery, gag gifts, party supplies, tobacco products and supplies, and at Halloween time, lots of costumes - so of course the town had to change its definition to the indefinable "substantial or significant."
But the specific battle that Kinsley and Silver are now waging is over the McCleary report, and so they turned to UC-Santa Barbara sociology Prof. Dan Linz, himself a veteran of several secondary effects studies, to look over the McCleary report and determine if its findings were consistent with the statistical evidence.
Linz examined the McCleary study in concert with Profs. Jeffrey Cancino and John McCluskey of the Department of Criminal Justice at the University of Texas-San Antonio, and what they found should come in handy for any other attorney faced with rulings or ordinances based on the McCleary report.
Linz noted that McCleary had used incident reports generated by the San Antonio Police Department between 2002 and 2006 for incidents that took place in what McCleary said were 1,100-foot "concentric circle parcels" around 14 San Antonio adult businesses, which McCleary said proved that "ambient risks" of crime "diminish exponentially with distance from the site of an SOB," which McCleary said "demonstrates the sites are neighborhood point-sources of crime victimization risk." In other words, the further one went from an adult business - and in this study, 11 of the 14 were take-home-only rental stores - the fewer incidents of crime (or at least police calls) were reported during the five years of data used in the study.
However, Cancino and McCluskey did their own examination of the same statistics McCleary claimed to have used for his report, and produced their own study titled, "Report 2: An Empirical Analysis of Dr. Richard McCleary's San Antonio SOB Case Study (Secondary Effects of 'Off-Site' Sexually-Oriented Businesses) Commissioned by the Texas City Attorney's Association," which found myriad problems with the McCleary study.
For instance, Cancino and McCluskey found that of the 14 SOB locations which McCleary used for his study, nine were not located even near where he said they were.
"All 14 adult businesses (13 depending if one includes Temptations) have substantial distance errors from where the business is actually located on the centerline street map," the Cancino/McCluskey study found. "The distance errors range from 52 to 1,105 feet. The severity of these errors renders his study an invalid scientific analysis of secondary effects."
Worse, Cancino/McCluskey found that one-fifth of the addresses McCleary used to map the police calls actually had non-adult businesses located at those addresses during part of the time frame McCleary used, and that he had misclassified some of the on-site adult businesses as off-site, and vice-versa.
"I conclude McCleary's arguments regarding the criminogenic nature of the 14 adult locations presented in his San Antonio study is not proof of secondary effects due to substantial and fatal methodological errors," the Cancino/McCluskey report concludes. "The analysis is shoddy as locations are misclassified geographically, the locations were not adult video stores during the study period, and the video store classifications appear to be incorrect given re-inspection of the sites in late 2008. Though couched in the language of careful scientific analysis, closer examination reveals that Dr. McCleary's San Antonio study offers no credible scientific evidence of secondary effects. Given the flaws with this study it cannot be reasonably relied upon in assessing the secondary effects of off site adult businesses."
Kinsley and Silver were shocked when they learned of the flaws in McCleary's report.
"For nine of the 14, he got the address entirely wrong by something like 500 feet in every instance," Kinsley summarized. "So what he actually studied were things like gas stations and parking lots. When he pulled the crime data, he actually pulled crime data for businesses other than the adult businesses. The addresses that he inputted were wrong. He also included within the study group businesses that had only been open for a short time, but pulled crime data for a five-year period, even though some of the businesses had only been open for like six months, so he got whatever happened to the previous businesses at those locations. So what he actually proved was that businesses other than adult businesses that were take-home-only caused secondary effects."
"So I think the Texas folks should be happy to hear that we're going to be able to poke holes in this," Kinsley concluded.
In fact, attorneys all over the country dealing with adult zoning battles and similar legal disputes, who find themselves faced with the McCleary study, should be happy.