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Perverted Justice
Sex offender laws represent the triumph of outrage over reason.
"If we had been aware of his record," says Maureen Kanka, "my daughter would be alive today." She is referring, in a statement on the website of an anti-crime group she founded, to Jesse Timmendequas, a neighbor in Hamilton Township, New Jersey, who raped and murdered her 7-year-old daughter, Megan, in 1994. Three months later, the state legislature enacted Megan's Law, which created a publicly accessible registry of sex offenders.
"Without the registry," says Shirley Turner, "he would still be alive today." She is referring, in a 2006 interview with Human Rights Watch, to her 24-year-old son, William Elliot. He was murdered that year by a pedophile-hunting Canadian gunman who found his name and address in Maine's online database of sex offenders. Elliot's crime: When he was 19, he had sex with his girlfriend, who was three weeks shy of 16, the age of consent in Maine.
The panic that followed Megan Kanka's murder produced an alarm system that often fails to distinguish between dangerous predators like Timmendequas, who had a record of assaulting little girls, and nonviolent lawbreakers like Elliot, who posed no discernible threat to the general public. They are all mixed together in the online registries of sex offenders that every state is required to maintain as a condition of receiving federal law enforcement funding—a mandate imposed by another Megan's Law, enacted by Congress in 1996.
Registration only rarely leads to murder, but it routinely ruins relationships, triggers ostracism and harassment, and impedes education and employment. These burdens are compounded by state and local laws that ban sex offenders from living near schools, parks, day care centers, and other locations where children congregate. Such restrictions, which often apply even if an offender's crime had nothing to do with children, can be so extensive that entire cities are effectively off limits. In Miami local residence restrictions have given rise to a colony of more than 70 sex offenders who live under the Julia Tuttle Causeway, a bridge that crosses Biscayne Bay.
Some sex offenders, including nonviolent ones, will not live to see the underside of a bridge because they receive sentences that keep them behind bars until they die. Two decades of ever-more-punitive legislation have produced sentencing rules so bizarre and byzantine that the punishment for possessing images of sexually abused children can be more severe than the punishment for sexually abusing them. And even prisoners who complete their sentences may not go free, since the federal government and about half of the states have laws authorizing the indefinite civil commitment of sex offenders who would otherwise be released.
American policies regarding sex offenders mark them as a special category of criminals for whom no stigma is too crippling, no regulations are too restrictive, and no penalty is too severe. This attitude, driven by fear and outrage, is fundamentally irrational, and so are its results, which make little sense in terms of justice or public safety. Like the lustful predators of their nightmares, Americans pondering the right way to deal with sex offenders seem captive to their passions.
'I Am on the Registry for Having Premarital Sex'
The public branding of sex offenders through online registries is a reaction to horrible, highly publicized crimes, such as Megan Kanka's murder, in which strangers abduct, rape, and kill children. But this sort of crime is exceedingly rare. Data from the Justice Department's National Crime Victimization Survey indicate that more than 90 percent of sexually abused minors are assaulted by relatives or acquaintances—people they trust. (According to the same survey, strangers commit just one in four sexual assaults on adults. They commit only 14 percent of sexual assaults reported to police.) Furthermore, according to a 1997 Justice Department study, nearly nine out of 10 people arrested for sex offenses have no prior convictions for this category of crime, so they would not show up in sex offender registries.
Meanwhile, the people on sex offender lists may pose little or no threat. A 2007 report by Human Rights Watch found that "at least 28 states require registration as a sex offender for someone convicted of having consensual sex with another teenager, if the offender was either age 17 or two years older than the other party." Eleven states set no minimum age difference. "It's one thing if you are a 40-year-old having sex with a 13-year-old," says the report's co-author and editor, Jamie Fellner, senior adviser to the U.S. Program of Human Rights Watch. "It's another thing if you're a 17-year-old boy having sex with your 16-year-old or 15-year-old girlfriend. Registration as a sex offender is just completely inappropriate there, does nothing to promote public safety, but ruins lives."
A man who was convicted of statutory rape when he was 16 for having consensual sex with his 14-year-old girlfriend told Human Rights Watch: "We were in love. And now we are married. So it's like I am on the registry for having premarital sex. Does having premarital sex make me a danger to society? My wife doesn't think so."
The Human Rights Watch report also found that at least five states required registration for offenses related to adult prostitution, at least 13 required registration for public urination, and at least 32 required registration for exposing one's genitals in public. And from the information given in a registry, which typically is limited to a vague legal description of the offense, it is often hard to tell what someone did to end up there. "Without any further information, it is difficult to provide reasonable steps that people can take to help keep themselves safe," says Maia Christopher, executive director of the Association for Treatment of Sexual Abusers. "Just knowing that there is someone living next door to you who's committed a sexual offense doesn't necessarily give you enough information to know what you're supposed to do about it." In fact, when the U.S. Supreme Court upheld Connecticut's sex offender registry in 2003, it did so partly because the state expressly disavowed any claims about the "current dangerousness" of the people in its electronic pillory, which meant they did not have a due process right to a hearing on that question.
Consider the case of Tony Washington, a promising college football player whose professional career was derailed by a conversation-stopping offense he committed almost a decade ago: At the age of 16, he had consensual sex with his 15-year-old sister. A 2010 profile of Washington in ESPN magazine explained the context of this forbidden liaison: a troubled, dispiriting childhood in the rougher sections of New Orleans, where Washington was constantly threatened by violence and had few sources of emotional support. Although he overcame a deprived background to become a star player at Abilene Christian University in Texas, his taboo-breaking transgression has deterred professional teams from drafting him and will mark him until the day he dies.
If you search for Washington's name in the Texas sex offender registry or the U.S. Justice Department's nationwide database, you will see photographs, a physical description, his date of birth, and his home address. His offense is listed as "prohibited sexual conduct," which most people, given the context, will assume refers to some sort of predatory crime. Few people will bother to look up the Texas statute explaining that consensual sex with several different kinds of relatives, including adopted siblings and first cousins, qualifies for this label, triggering the same lifelong registration requirement that applies to rapists and child molesters. (On its face, the law even covers sex between first cousins who were legally married in one of the 25 states that allow such unions.) Whatever you may think of Washington's crime, it hardly marks him as a public menace whom women and children should fear, let alone as someone who will be a danger to others even when he is old and infirm.
Washington's case illustrates another way in which the legal treatment of sex offenders is unusual. Although the records of juvenile offenses typically are sealed, sex registration is public, and it applies even to people who, like Washington, committed their offenses as teenagers or children. According to The Dallas Morning News, the sex offender registry in Texas, where Washington lives, includes about 4,000 people who were minors when they committed their crimes, a quarter of whom were under 14. Human Rights Watch interviewed the father of a 10-year-old boy accused of touching his 5-year-old cousin's genitals. "My son doesn't really understand what sex is," he told the group, "so it's hard to help him understand why he has to register as a sex offender." This policy of tarring minors as sex offenders undermines a central aim of the juvenile justice system by burdening people with the mistakes of their youth for the rest of their lives.
'No Area in Town Is Available to Live In'
Like registration, residence restrictions are ostensibly aimed at protecting potential victims from known sex offenders, in this case by creating a geographical buffer. But the logic of these rules, which have been adopted by more than 20 states and hundreds of municipalities, is hard to understand. "I don't know of any research that suggests the residency restrictions are effective," says Christopher. "People don't necessarily offend where they live."
In 2005 Iowa banned people convicted of sex offenses involving minors from living within 2,000 feet of a school or day care center. Almost immediately, the ban prompted complaints from police and prosecutors, who worried that the residence restrictions were so burdensome that they discouraged sex offenders from pleading guilty and from registering after conviction, making them impossible to track. In a 2006 statement, the Iowa County Attorneys Association said the law "does not provide the protection that was originally intended" and called for its repeal, citing "the cost of enforcing the requirement and the unintended effects on families of offenders." After the law took effect, the number of sex offenders whose whereabouts were unknown more than doubled. The prosecutors reported that "the residency restriction is causing offenders to become homeless, to change residences without notifying authorities of their new locations, to register false addresses or to simply disappear."
Jerry Behn, the Republican state senator who introduced the law, conceded that he might have gotten carried away. "If you draw a map, pretty soon you can make it so no area in town is available to live in," Behn told The Atlanta Journal-Constitution in 2006. "It would have been better if we had put it at 1,000 feet." In 2009 the legislature replaced the 2,000-foot rule with a law prohibiting anyone convicted of "a sex offense against a minor" from working at a school or day care center, visiting an elementary school or day care center without permission, or loitering within 300 feet of a facility intended primarily for use by children.
Iowa's unhappy experience with residence restrictions did not deter Georgia legislators from enacting an even more onerous set of rules in 2006. Their law, which extended existing residence restrictions, banned all registered sex offenders (not just those who had committed crimes against children) from living, working, or loitering within 1,000 feet of schools, churches, child care facilities, or other places where minors congregate, including parks, playgrounds, swimming pools, skating rinks, and school bus stops. Even a sex offender who did not currently live within one of these exclusion zones could be forced to move in the future, depending on how his neighbors decided to use their property. For the law's sponsors, its indiscriminate breadth was a feature, not a bug. Georgia House Majority Leader Jerry Keen (R-St. Simons) said he hoped sex offenders "will want to move to another state."
Under the 2006 law, all 490 registered sex offenders in DeKalb County, most of them men who as teenagers had consensual sex with younger girls, were required to move because their residences were within 1,000 feet of a covered location. The law applied even to sex offenders dying in nursing homes. One Georgia woman, labeled a sex offender because she performed fellatio on a 15-year-old boy when she was 17, had to move in 2005 because she was too close to a day care center. When the legislature added school bus stops to the list of prohibited locations in 2006, her new home became illegal as well.
In 2007 the Georgia Supreme Court struck down the residence restrictions, citing the perpetual insecurity they created. The court was responding to a lawsuit by Anthony Mann, who in 2002 was sentenced to four months in jail and five years of probation for flashing two minors during a business trip to North Carolina. In 2003 Mann married and bought a house in Hampton, Georgia. At the time, it was a legal location. But then a day care center opened nearby, rendering his residence illegal. "Under the terms of that statute," the state Supreme Court noted, "there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected." Concluding that the law "precludes appellant from having any reasonable investment-backed expectation in any property purchased as his private residence," the court unanimously ruled that it violated the Fifth Amendment's ban on uncompensated takings of private property.
The Georgia law also prevented Mann from working at a barbecue restaurant in Lovejoy that he co-owned, since it was within 1,000 feet of a day care center that opened after the restaurant was established. But because Mann did not present enough evidence of economic harm, the Georgia Supreme Court did not overturn the law's work restrictions.
'A 90 Percent Likelihood of Recidivism'
Constitutional issues aside, closing off employment opportunities for sex offenders, who are already handicapped by criminal records and public registration, does not seem like an effective way of encouraging them to put their lives in order. Neither does forcing ex-convicts to cluster in the boondocks, far from jobs, family, churches, and treatment programs.
"Once someone is zoned out that far, a lot of the resources that help reduce the risk to reoffend are taken away," says Maia Christopher. "People who are coming out of prison, who have whatever deficits and risk factors they have, are put into situations that really high-functioning people would find very challenging. I don't think anybody finds it particularly easy to be living under a bridge. When you have someone who's already got a lot of issues, part of what we're doing is increasing that challenge. Once you make the restrictions so broad, you tend to take away a lot of the resources that we know help keep people safe, such as community stability, employment, family services, spiritual support—the relationships that help people stay crime-free."
Human Rights Watch's Jamie Fellner likewise argues that the rules aimed at discouraging sex offenders from committing new crimes can produce the opposite effect. "One of the most powerful things that keep people from breaking the law is a sense of what they will lose if they do," she says. "If you're treating someone like a cur, a dog that is being kicked out of the village, how are you strengthening that person's desire or ability to follow the law?"
Politicians who push ever-harsher laws routinely argue that sex offenders are almost certain to commit new offenses anyway. "The rate of recidivism for these crimes is astronomical because these people are compulsive," said Rep. Jennifer Dunn (R-Wash.) in 1994, making the case for the federal Megan's Law. In 2005 Rep. Mark Foley (R-Fla.), later notorious for sending sexually suggestive email messages to teenage pages, claimed: "There is a 90 percent likelihood of recidivism for sexual crimes against children. Ninety percent. That is the standard. That is their record. That is the likelihood. Ninety percent." His source may have been California Assemblyman Bill Hoge (R-Pasadena), who in 1996 told The New York Times that child molesters, upon being released from prison, "will immediately commit this crime again at least 90 percent of the time."
There is no basis for these numbers. "Though often thought of as the most persistent and dangerous criminals, sex offenders are among the least likely criminals to recidivate," write Florida Institute of Technology psychologist Timothy Fortney and three co-authors in a 2007 article published by the journal Sexual Offender Treatment. A 2003 Justice Department study of 9,700 sex offenders found that 5 percent were arrested for new sex crimes within three years of being released from prison. (By comparison, 23 percent of burglars were arrested for new burglaries, and 22 percent of people who had served time for nonsexual assault were arrested for new assaults.) Studies that cover longer periods find higher recidivism rates for sex offenders, but still nothing like those claimed by panic-promoting politicians. Two meta-analyses of studies involving a total of 29,000 sex offenders, published by the Journal of Consulting and Clinical Psychology in 1998 and 2005, found a recidivism rate of 14 percent after four to six years. A study of 4,700 sex offenders, published by Public Safety Canada in 2004, found that 24 percent were charged with a new sex crime over a period of 15 years.
Since the National Crime Victimization Survey indicates that most sex crimes go unreported, these numbers do not tell the whole story. But Karl Hanson, a senior research officer at Public Safety Canada who co-authored many of the recidivism studies, believes the unreported sex crimes largely fall into two broad categories: those deemed too minor to bother calling the police (such as a drunken groping at a party) and those involving relatives or trusted members of the victim's social network—neither of which fit the pattern that legislators have in mind when they argue that registration, public notification, and residence restrictions can help protect children and women from attacks by strangers.
The research on recidivism helped change the mind of at least one prominent advocate of sex offender registries. In 1989 Patty Wetterling's 11-year-old son, Jacob, was kidnapped by a masked gunman while riding his bike home from a convenience store in St. Joseph, Minnesota. He has not been seen since. The crime inspired the 1994 Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, the federal law that created the state registries that Megan's Law made publicly accessible two years later. "The high recidivism rates I assumed to be true do not exist," Patty Wetterling told Human Rights Watch in 2007. "It has made me rethink the value of broad-based community notification laws, which operate on the assumption that most sex offenders are high-risk dangers to the community they are released into."
Looking vs. Touching
People convicted of molesting children have demonstrated a dangerous proclivity, even if they are less likely to repeat the crime than is popularly believed. But what about people who are convicted of possessing child pornography? Although conventional wisdom assumes child-porn consumers are undiscovered or future molesters, that assumption is also wrong.
This year Michael Seto, a psychologist who advises the Integrated Forensic Program of the Royal Ottawa Health Care Group, published a study of this question, co-authored by Karl Hanson and Kelly M. Babchishin of Public Safety Canada, in the journal Sexual Abuse. Seto, Hanson, and Babchishin performed meta-analyses of 24 studies that looked at the criminal histories of "online offenders" (mainly consumers of child pornography) and eight studies that calculated their recidivism rates. They found that one in eight had an official record of committing a contact offense. In the six studies that included self-report data (drawn from treatment sessions and polygraph examinations), one in two child pornography offenders admitted to having sexual contact with children.
Looking forward, Seto says, "C.P. offenders are relatively unlikely to commit contact offenses in the studies that have followed them." Over all, the recidivism studies indicate that only 2 percent of child pornography offenders committed a sexual offense involving physical contact during the follow-up period, which ranged from 18 months to six years. In short, says Hanson, "there does exist a distinct group of offenders who are Internet-only and do not present a significant risk for hands-on sex offending."
Why would anyone look at this horrible stuff if he was not inclined to imitate it? Troy Stabenow, an assistant federal public defender in Missouri who is a prominent critic of child pornography sentencing policies, put it this way in a 2009 interview with ABA Journal: "People who watch movies like Saw and Friday the 13th are being titillated by the act of torture and murder. That doesn't mean that they're going to go out and commit torture and murder."
Dean Boland, an Ohio defense attorney specializing in child pornography cases, says a substantial share of defendants were themselves victims of sexual abuse as children and look at these images as a way of working through the trauma. He recalls one client, a 65-year-old former pastor who received a sentence of more than 17 years, saying, "When I'm looking at these images, I'm not envisioning myself as the adult. I'm envisioning myself as the kid."
Yet the legal treatment of people caught with child pornography is so harsh that they can end up serving longer sentences than people who actually abuse children. Under federal law, receiving child pornography, which could mean downloading a single image, triggers a mandatory minimum sentence of five years—the same as the penalty for distributing it. Merely looking at a picture can qualify someone for the same charge, assuming he does so deliberately and is aware that Web browsers automatically make copies of visited sites. In practice, since the Internet is almost always the source of child pornography, this means that viewing and possession can be treated the same as trafficking. The maximum penalty for receiving or distributing child porn is 20 years, and federal sentencing guidelines recommend stiff enhancements based on factors that are extremely common in these cases, such as using a computer, possessing more than 600 images (with each video clip counted as 75 images), and exchanging photos for something of value, including other photos.
In a devastating 2008 critique of these sentencing policies, available on his office's website, Stabenow shows that Congress ratcheted the penalties for looking at child pornography upward through a series of ill-considered, undebated dictates driven by little more than public outrage and disgust. The upshot: Between 1997 and 2007, the number of people sent to federal prison for possessing, receiving, or distributing (but not producing) child pornography quintupled, from 238 to 1,170, while the average sentence more than quadrupled, from 21 to 91 months. Among the baffling results of these policies: A defendant with no prior criminal record and no history of abusing children would qualify for a sentence of 15 to 20 years based on a small collection of child pornography and one photo swap, while a 50-year-old man who encountered a 13-year-old girl online and lured her into a sexual relationship would get no more than four years. The comparison, Stabenow writes, "demonstrates the absurdity of the system."
The absurdity has not gone unnoticed by the judiciary. In a 2010 survey by the U.S. Sentencing Commission, 70 percent of federal judges said the recommended penalties for possessing or receiving child pornography are unreasonable. Although the Supreme Court has ruled that the guidelines are only advisory and not mandatory, judges still must justify deviations in written explanations that are subject to review by appeals courts. Many have not been shy in expressing their opinions about the fairness and wisdom of the penalties they are asked to impose.
In a 2008 child pornography case, Robert Pratt, a U.S. district judge in Des Moines, gave the defendant a sentence of seven years instead of the recommended 18. The guidelines "do not appear to be based on any sort of empirical data," Pratt said, "and the Court has been unable to locate any particular rationale for them beyond the general revulsion that is associated with child exploitation-related offenses."
The following year, Lynn Adelman, a U.S. district judge in Milwaukee, cited Stabenow's critique of the sentencing guidelines when he gave a middle-aged funeral director who was caught swapping child pornography a six-year sentence instead of the 18 years sought by prosecutors. "The flaws identified by Stabenow were certainly evident in this case," Adelman wrote in his sentencing memorandum. "I could not conclude that under the circumstances of this case, given all of the flaws in the guideline discussed above, that the range deserved deference."
Jack Weinstein, a U.S. district judge in Brooklyn, has been fighting for years, sometimes through rulings of questionable legality, to spare a married father of five not only the 11-to-14-year sentence recommended by the guidelines but the five-year statutory minimum for receiving child pornography. "Imprisonment of at least five years for this defendant is cruel," Weinstein wrote in a 2008 opinion.
State penalties for possessing child pornography can be even harsher. In Arizona, one count of possessing child pornography carries a 10-year mandatory minimum sentence, each image qualifies as a separate count, and the sentences must be served consecutively. That's how Morton Berger, a former high school teacher with no criminal record, ended up with a 200-year sentence in 2003.
In 2006 the Arizona Supreme Court upheld Berger's sentence, rejecting his argument that it violated the Eighth Amendment's prohibition of cruel and unusual punishment. Writing in dissent, Vice Chief Justice Rebecca Berch noted that "Arizona's sentence for this crime is by far the longest in the nation and is more severe than sentences imposed in Arizona for arguably more serious and violent crimes." For example, "the minimum sentence for possession of an image of child pornography is longer than the presumptive sentence for rape or aggravated assault. A presumptive sentence for possession of two images of child pornography…is harsher than the sentences for second degree murder or sexual assault of a child under twelve.…For molesting a child, one might receive the same sentence that Berger has received for possessing one picture."
It is hard to make any sense out of such a sentencing scheme. Ostensibly, the law punishes people for possessing child pornography because their demand for this material encourages its production, which necessarily involves the abuse of children. That is the main rationale cited in Osborne v. Ohio, the 1990 Supreme Court decision that said mere possession of child pornography can be banned without violating the First Amendment. But the minimal, indirect role that any one consumer of child pornography plays in creating a market for the stuff can hardly justify sending him to prison for years or decades, and this argument has little relevance now that people who look at child pornography typically get it online for free. "They are not protecting a single child," says Dean Boland, the defense attorney. "They are throwing people in prison for having dirty thoughts and looking at dirty pictures." The harsh treatment of people who like to look at child pornography seems to rest on the mistaken premise that they are equivalent to child molesters. In essence, they are being punished for the crimes they are expected to commit.
Preventive Detention
The same could be said of sex offenders who are confined indefinitely to mental institutions after they have completed their prison sentences. In the 1997 case Kansas v. Hendricks, the Supreme Court upheld this policy of post-sentence detention, ruling that a state law authorizing civil commitment of "sexually violent predators" was not punitive and therefore did not violate the Constitution's Double Jeopardy Clause or its ban on ex post facto laws. The Court also concluded that the criteria for commitment satisfied the requirements of substantive due process.
Under the Kansas law, an offender can be committed if a jury decides he is likely to engage in "predatory acts of sexual violence" due to a "mental abnormality" or "personality disorder." The law defines "mental abnormality" as "a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others." Writing for the majority, Justice Clarence Thomas said these criteria "serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control." Thomas added that the "lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishes [sexually violent predators] from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings."
The thing is, the child molester who brought this case, Leroy Hendricks, did go through criminal proceedings, a fundamental premise of which was that he was able to control his behavior and could have chosen to act differently. Based on that premise, he was convicted of "taking indecent liberties" with two 13-year-old boys and served a 10-year sentence, whereupon the state declared that Hendricks could not go free because he was unable to control his behavior.
That was not the only apparent contradiction in the case. The Court ruled that indefinite commitment was not tantamount to a life sentence because the prisoner-cum-patient is "permitted immediate release upon a showing that the individual is no longer dangerous or mentally impaired." At the same time, the Court said the state is not constitutionally required to provide treatment that might help eliminate the danger. Indeed, the state legislature suggested that sex offenders covered by the law cannot be successfully treated. The preamble to the statute called them "a small but extremely dangerous group of sexually violent predators…who do not have a mental disease or defect that renders them appropriate for involuntary treatment" under the state's general civil commitment statute. These offenders, the law said, "generally have anti social personality features which are unamenable to existing mental illness treatment modalities."
Predictably, offenders confined under sexually violent predator laws after completing their prison sentences are almost never declared well enough to release. In 2007 the Washington State Institute for Public Policy counted discharges by the 20 states that had implemented such laws at the time. Of the 4,534 offenders who had been committed since the first such law was passed in 1990, 188 (about 4 percent) had been released based on a "program staff recommendation." According to 2011 legislative testimony by Rob Siedlecki, acting secretary of the Kansas Department of Social and Rehabilitation Services, only two out of 247 prisoner/patients (less than 1 percent) have successfully completed that state's Sexual Offender Treatment Program since it was created in 1994. Taxpayers are paying a pretty penny for these dismal results. The Washington state study found that committing a sex offender cost an average of $97,000 annually, compared to $26,000 for a year of prison, a gap that a 2007 investigation by The New York Times attributed to "higher costs for programs, treatment and supervised freedoms."
Contrary to the beliefs of legislators, there is not much evidence that psychiatrists or psychologists can predict which individuals will commit sex crimes. While sex offenders can be sorted into high-risk and low-risk groups based on their criminal histories, says Karl Hanson, the Public Safety Canada researcher, "the best that we can do for identifying high-risk offenders is identifying groups that have approximately 50 percent observed recidivism rates."
What's theoretically possible, of course, is not necessarily what government agencies actually achieve. A 2006 report from the Washington State Institute for Public Policy concluded that the methods used by the state to classify registered sex offenders by risk had "little or no accuracy in predicting sex offender recidivism." By contrast, a 2004 study by Lynn University psychologist Jill Levenson, reported in the International Journal of Offender Therapy and Comparative Criminology, found that sex offenders recommended for commitment in Florida "scored significantly higher on actuarial risk assessment instruments" and were more likely to have "other risk factors that have been empirically correlated with sexual recidivism" than sex offenders who were recommended for release.
Even when evaluators do the best they can, per Hanson's estimate, the most they can say is that half the offenders who meet certain criteria will commit new offenses if they are released, which means half will not. Such probabilistic assessments, even for crimes that have already occurred, are not usually considered sufficient grounds for depriving people of their liberty. "This is prison," says Jamie Fellner. "We shouldn't pretend otherwise. Basically, this is a form of preventive detention."
When you strip away the quasi-medical language, what states are really saying when they indefinitely commit odious individuals like Leroy Hendricks to mental hospitals is this: "Whoops. We should have given this guy a longer sentence." But it is no mere formalistic quibble to point out that a defendant's sentence should be imposed at the time of his conviction as determined by a judge within the parameters set by statute. These are basic requirements of due process and the rule of law, and we make exceptions to them at our peril. Clarence Thomas may be confident that preventive detention won't be extended to "other dangerous persons," but I am not. It seems to me that all it would take is a new law attached to a new scientific-sounding label invented by legislators or grabbed from the Diagnostic and Statistical Manual of Mental Disorders. How many convicted criminals could qualify for a diagnosis of, say, anti-social personality disorder?
In a 2004 Criminal Law Bulletin article, William Mitchell College of Law professor Eric Janus argued that "sexual predator laws provide a model for undercutting…constitutional protections." The process, Janus said, starts with a universally despised group of people who, like suspected terrorists, attract no public sympathy. He warned that "we are at risk of becoming a 'preventive state,' in which the paradigm of governmental social control has shifted from solving and punishing crimes that have been committed to identifying 'dangerous' people and depriving them of their liberty before they can do harm." To most Americans, I fear, this prospect is not nearly as scary as the possibility that a sex offender lives down the street.
Senior Editor Jacob Sullum (email@example.com) is a nationally syndicated columnist.
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the country is insane. We have lost all ability to fairly administer justice.
For that attitude, I think you need to spend a YEAR IN PRISON, JOHN! OFF TO THE BRIG WITH YOU!
Or perhaps the rest of your life under a bridge.
Certainly our justice machinery does not deserve the name of "system". There's nothing systematic about it. Monkey shit fights are more organized.
I don't see any method at all, sir.
The "system" is that individual prosecutor/judge pairs get tons of leeway on charges and sentencing. What's wrong with that?
The prosecutor gets leeway, not the judge.
The 'system' is working perfectly, at least it is if the ultimate goal is to create as many criminals as possible thereby justifying an ever-increasing police state.
Sex offenders and especially kiddy diddlers are universally loathed so they make an easy target.
There is no justice. With prosecutors having complete immunity for the lives they ruin while building their own careers this situation isn't likely to change any time soon.
It's not about justice. Sometimes I wonder if it ever was. It's all about creating the appearance of 'doing something' about a problem that is very likely overblown and inflated.
It's come to this folks: Looking at a fucking picture is a crime.
WE live in the "Security State." We have completely lost the ability to rationally judge, evaluate, distinguish, and endure risk.
The government justifies its existence and encroachment of civil liberties combating all those bogeymen out there: raw milk, terrorists, pedophiles, 100 watt light bulbs, monkey bars, the game of tag, e-cigarettes, the use of opiates, the national debt, ad nauseum. All are treated with a well honed hyperbolic theatre used to quell any dissent of "doing something."
Oh Johnny. You just need to listen to some more Nancy Grace and Bill O'Reilly until your mind is properly indoctrinated to the belief that the mere accusation of ANY sex crime is as good as guilt and that being publically and personally destroyed is the least you can do to pay for your crimes.
Hey, I'm just lookin' out for the folks here!
Thank you John. Mr. Sullum has made a host of excellent points in this article, showing how these ludicrous laws can hurt many innocent people.
However, he has only begun to scratch the surface of this insanity. For instance, numerous studies - including studies by law enforcement agencies - have found that the great majority of people who commit sexual offenses against children are not even pedophiles. Rather, they are people who have problems with anger or self-control, sometimes exacerbated due to temporary issues - such as being drunk. Furthermore, a teleiophile is more likely to commit a forcible sexual offense against a child than a pedophile.
It is clear that these laws are counterproductive and insane if the purpose is to protect children or the public; it is clear that these laws are the product of prejudice and ignorance.
We have, as a society, gone fucking insane. I think it's time to burn it down and start over.
Time to go Galt, eh?
Going Galt sounds better and better. If I were about 30 years younger and not so comfortable, I might consider it.
Of course, once the big O (and little brother Duval) get done with me, I may be poor enough that going Galt won't require so much additional sacrifice.
Also, what John said. It's to the point I can't stand to read the news or listen to politicians. I've gone from being a complete cable news junkie to appalled abstainer in the period of about 5 years.
It'd be unbelievable if it weren't completely believable.
Ugh -
I am the same. I used to watch it all the time. And now I can't stand it. And it is not because of liberal bias. It is because it is nothing but local news "if it bleeds it leads" scare stories. Nancy Grace is Satan.
Totally agreed. It's migraine-inducing to see either the local news or the 24 hour news channels. These people are so caught up in their collective bullshit that it's like an alternate reality.
Totally agreed. It's migraine-inducing to see either the local news or the 24 hour news channels. These people are so caught up in their collective bullshit that it's like an alternate reality.
That sounds like the reclusive rhetoric of a sexually deviant pedophilic rapist.
*shakes pitchfork*
Satan wouldn't touch Nancy Grace with a 10 foot pitchfork.
Nothing can get me to change the channel or leave the room faster than Nancy Grace. If she says that the earth orbits the sun I'd need to reconsider Ptolemaic theory as not sounding so bad.
Nancy Grace would not be smart enough to know about Ptolemaic theory, let alone accurate describe it. I picture her going more the ICP theory of planetary orbits:
Fucking sun rises and sets, how does that work?
The sun rising and setting? You can't explain that...
Nancy Grace makes my bowels ache. I cannot watch that hideous woman at all. She and the various other screeching harpies on her show. They're all horrible.
The thing that chaps my hide is I see people like Nancy Grace and other similarly vile people becoming famous and making huge money while I'm working away at a job that is sucking the life out of me for an annual salary that probably is less than they make in a month. Where's the justice in that?
The sad, sick thing is the shit that the public will lap up and make successful. The lower, more base and salacious, the better it sells, baby!
The way of the world is that the lowest whale shit looks down on the ocean floor.
Luckily, Joel McHale is totally on top of this Nancy Grace situation.
I'm sure that his continued jibes will discredit her... eventually...
Over time my enjoyment of the Soup has even dissapated, as it has slowly sunk in that there are millions upon millions of people who lap Nancy and other such shows up.
If there is any justice in this world, Nancy Grace will die in a vested pants-suit factory fire.
So don't. Think about it this way: We could all have been bluefish. They're meaner than people, and yet there are plenty of them. With that perspective you see things aren't so bad, and it frees you from caring about things.
And besides, these are all things you've read about. You're not doing them, are you? And even if you were the one doing them, so what? It doesn't bother the bluefish; they just go on being bluefish -- and delicious.
This is a great article on the hysteria and irrationality surrounding sex offender laws. It is as if most people are unable to discuss the topic in an objective fashion.
The whole idea of sex offender registries is a terrible one. There is no evidence they make anyone safer. They prevent people from moving on with their lives after they have served their sentence. They are filled with people who pose no danger to anyone else. But because these laws are named after children who were victims of terrible crimes, no legislator has the spine to even ask questions.
We also need to question the assertion that producing child pornography necessarily involves victimizing children. What if someone creates a very realistic CGI image that does not involve a live person? Or modifies an innocuous photo to make it sexually explicit?
What if someone creates a very realistic CGI image that does not involve a live person? Or modifies an innocuous photo to make it sexually explicit?
H&R had a story about a guy who was singing nasty lyrics - not in front of kids, but when no kids were around. He then made a video where he spliced kids into the frame to make it look like he was singing to them. He was arrested for that. FUR TEH CHILDRUNZ!!11! is zero-tolerance and zero-intelligence.
Remember when the Congress under the Clinton Administration passed a law where it was illegal to even show or render a drawing/painting of a child shown in explicit situations?
That was fuckin' crazy.
Nearly everyone of my friends & associates agreed with it!
I don't remember that one. It seems like that would get shot down as unconstitutional under the first amendment...
Oh yeah -- it happened. It was law for a few years and then was struck down. I'm not sure if was struck down under Clinton or Bush.
I'm still wading through my web searches for specifics.
Under Bush, although I think his Soliciter General argued to keep it in place.
The act was the Child Pornography Protection Act (1996). It was ruled unconstitutional in 2002.
I'm not going to search this here at work, but wasn't someone recently arrested for having lewd "Simpsons" illustrations on their computer. Something that regularly pops up on /b/
I've heard that even knowing what /b/ is can get you 25 years in AZ.
Not recently, but it did happen.
The case occurred in Australia and was actually upheld on appeal, on the principle that even if the cartoons are clearly not human beings, they can still be "persons" under the law.
My question is, given that they were 'born' in 1987, can you really call a lewd Simpsons parody "child porn" when all the 'people' are legally adults?
Thanks for the link Mongo.
But because these laws are named after children who were victims of terrible crimes, no legislator has the spine to even ask questions.
I've said it before, and I'll say it again. I'd vote against any legislation named "[Jane's] Law" (insert name of victim in place of Jane) on sheer principle.
That, and legislation named so as to produce a snazzy acronym.
Ted.... wrong attitude dude... you'll NEVER get reelected with that sort of outlook.
I've said it before, and I'll say it again. I'd vote against any legislation named "[Jane's] Law" (insert name of victim in place of Jane) on sheer principle.
My favorite quote here is from the Massachusetts state representative Jim Fagan:
"Every time the Legislature has named a law after somebody, it has been a failure."
I wish we could import that viewpoint here to California, which is in thrall to the CCPOA and its cavalcade of "victims' rights" front groups. And it's not just sex crimes that get everyone inflamed. We also do our best to use drunk driving as an excuse for radically reinventing basic legal concepts and rolling back 4th - 6th amendment rights.
One law recently named after somebody, the "Steve Ambriz Act" almost effectively eliminates vehicular manslaughter in the case of drunk driving. The reason there is a vehicular manslaughter statute in the first place is because you must prove intent to convict someone of murder. Now we've passed a law that waves away such trivial details as mens rea and forces all Californians who get a driver's license to sign a document that is worded in such a way that it effectively makes them state their intent to commit murder if they drive drunk. And it doesn't matter how long you've been driving between the accident and signing the declaration because it will be used against you in court to convict you of murder.
I truly love this state, but I hate our politicians. ALL of them.
He sounds like a sex criminal in the making
....Yeah, but what about when, like most of the time, there are images of real child victims? I can buy that they may not deserve the same sentences as dangerous offenders, but come on. If you're looking at a 4 year old being raped on camera, you are victimizing that person. Really, you're pretty much involved with an ongoing crime. We make the media blur out faces when they don't get release forms, but having an image that is ONLY available to you because a violent sex crime on a child was committed is ok?
Yeah! Like why the hell didn't Megan's mother instill the obvious life lesson "DO NOT TALK TO STRANGERS" rule? Or maybe she should've gotten off her fat ass and been outside with her daughter to watch her play?
I'd say "But think of teh childrenz!!" But that would just bring out all the pervs, saying "Yes, please!"
I don't understand the logic behind the residency restrictions. The people pushing these restrictions may not be aware of it, but there's this recent invention called the "automobile". Users of this newfangled gadget can travel to a different location in a very short time.
There is no logic behind it. Most children who are molested--about 90% IIRC--are victimized by a relative or friend of the family or another trusted adult (teacher, coach, priest, etc) as opposed to a stranger.
I don't understand the logic behind the residency restrictions.
Don't try.
You should see the vapors-inducing tizzies on the local parents list when the mention of sex offenders arises. When the one in Maryland came online, you should have heard the squawks of outrage that these "people" live, not only among us, but within only a few miles of us!!!!!11!!!ELEVENTY!!!!
"One" being the online sex offenders registry with the addresses of registrants.
I don't understand the logic behind the residency restrictions.
There is none.
The combination of sex offender registries and residency restrictions did allow my local paper, the San Diego Union-Tribune, to milk the Amber Dubois-Chelsea King murder trial story long enough to run a hysterical and alarmist article about how there are sex offenders in San Diego... and they're not evenly distributed over the area of San Diego County! Some places, even some buildings, had lots more sex offenders than others! *gasp!*
This was an A-1 above-the-fold story too. At no point in the article did they ever discuss the fact that this is a predictable result of residency restrictions. Almost every day I skip A-1 and start at A-3, where the truly important international and national news is.
I knew a guy who was on the registry for public urination.
For the crime of whipping it out and pissing in an alley while walking home from the bar in the dark, he must register for life.
How anyone figures that urination is a sexual activity at all puzzles me. I think that the registries are awful generally; either keep them locked up or let them get on with their lives. But the fact that you can get on the list for anything other than forceable rape/molestation should really horrify any reasonable person.
How anyone figures that urination is a sexual activity at all puzzles me.
You need to spend more time on the internet.
Actually, I suspect that what they were hung with was indecent exposure, not public urination.
How can it be exposure if nobody can see it?
It's not like there are children hanging out in dark alleyways at two in the morning.
At least I hope not anyway.
"You need to spend more time on the internet."
Well, I know that some people are into watching other people pee. But the act itself, when done for practical purposes is no more sexual than brushing one's teeth.
Indecent exposure is even worse. Whose standard's of decency? I find nothing indecent about whizzing in a dark corner, at night on a public street. Don't look if you don't want to see it. And as sarcasmic points out, he wasn't even exposed to anyone until the cop went out of his way to watch this guy take a leak. Maybe the cop should be charged with a sex crime.
Well, I know that some people are into watching other people pee. But the act itself, when done for practical purposes is no more sexual than brushing one's teeth.
Somebody somewhere probably finds that arousing, too. Rule 34 and all that.
Heh heh, you said hung...
"How anyone figures that urination is a sexual activity at all puzzles me."
Penis! He showed his penis! Penis! Penis! Peeeeeenis!
"...should really horrify any reasonable person."
Those who think that registries and residency restrictions will achieve their intended purpose are not what I would call reasonable.
In the US people tend to conflate nudity with indecency.
Nude beaches made illegal in 3...2...1...
'Why else would you be naked except for carnal reasons?'
Mrs. Grundy
I knew some folks who were almost put on the list for streaking back in college. Fortunately charges of indecent exposure were eventually dropped.
Let's face it. Between public urination, streaking and other drunken stupidity, pretty much half the population should be on a sex registry somewhere.
We need High Speed Railroads for the Sex Offender Cattle Cars.
How many "teenagers being teenagers" have to be ensnared into this abomination of a system before parents of teenagers start to notice something is wrong.
Short answer: Way too many
But I'm genuinely curious about the longform answer.
I had grown tired of single page snippets being passed off as full articles. Thanks for something with some meat this time, Reason.
I had grown tired of single page snippets being passed off as full articles. Thanks for something with some meat this time, Reason.
I've grown tired of the squirrels.
I had grown tired of single line comments being restricted to a single comment. Thank you Reason squirrels for fixing this problem for Felch.
I had grown tired of having to scroll up every time I wanted to reread a comment. Thanks for being so accommodating, Felch.
The irony is that the single biggest catalyst for this mass hysteria is a man named Dick Wolf, creator of Law & Order: SVU.
Can you elaborate, Sudden?
Well, in watching it, you would be likely to emerge with the idea that sex offenders are everywhere at all times, are beyond reform/rehabilitation, are callous and lacking in remorse, and are capable of nothing short of the most vile and unspeakable actions.
Watch SVU if you want to see "sex offenders deserve whatever we give them"-attitude. Suspects are routinely assaulted, badgered, harrassed, tricked out of or outright denied legal counsel. In at least one instance, the detectives beat a person for information in the back of a squad car.
Detective Badass (Eliot Stabler) threw one guy threw a plate glass window and yet still has his badge.
The irony is in his name, Mongo.
Isn't it ironic?
Don't you think?
A little too ironic,
I really do think.
That show is so awful, without even accounting for the political bias.
Excellent article. I only wish it could do one ounce of good.
Stop spelling my name wrong!
Seems a representative from New York and the attorney general will be running for president.
Wiener Holder 2012!
You really don't know just how fucked up things are until you know someone who has been charged and/or convicted of child porn possession. That said, there need to be way more articles like these. But somehow I don't see the politics of it all changing in any of our lifetimes short of wide spread judicial revolt.
Can a sex offender in a wheelchair sue for lack of access to affordable housing under a bridge?
I actually know a blind guy who's also a sex offender (One of those situations where they lied to him about their age, I guess he should have just taken a closer look, right?). He was looking for a place to live, but couldn't find any that weren't way out in the middle of nowhere with no public transit available. I think he started to look into an option like that but he finally found a place to live in a trailer park that's population is entirely sex offenders.
Imagine the block parties!!
These laws are the confluence of white knight social cons who are determined to save defenseless women and children and feminists whose goals it is to demonize male sexuality.
No surprise injustice is the result.
Was I the only one who thought it ironic that the guy in the second picture was wearing a shirt with a wolf on it?
Great article. Hopefully, Balko has referred his readership to it. Here at H&R, the readership has been made aware of these Balkoesque true tales of idiotic injustice all to frequently.
You can never write too often about challenging the politically popular urban-legend legislation that so effectively makes for a more and more Kafka-is-reality world.
I quit reading after the defense of Elliot. It went beyond what was necessary to make a reasoned argument. If you think almost 16 counts as 16, then perhaps you'd like to argue for making 15 the age of consent, but then as soon a case arises involving a youngster who's almost 15, you'd be in the same boat. Another word for nonconsensual sex is "rape." It is not a victimless crime. Either you support age of consent laws or you don't.
Arguments for lax or arbitrary enforcement of laws are troubling if they are accompanied by the claim that nobody will be victimized under such a regime. If you want to argue for lax enforcement, you might as well admit that you're not especially bothered by the sexual exploitation of children. I don't mean to cast stones. It's rather taboo, but perhaps it's reasonable to say that one doesn't really care if adults have sex with children; I don't know how else to interpret the argument that one shouldn't strictly enforce age of consent laws.
Many states have "Romeo and Juliet" exceptions to their consent laws. Maine has one now. The law currently provides for a five year gap between those above and those under the age of consent, so a person in Elliot's position would not be prosecuted for statutory rape today.
In Maine now there is a case of a 21- year-old man, Nathaniel Sargent, who had sex with a 14-year-old girl. He accepted a plea of felony assault to avoid being put on an offenders' registry. The man has his defenders, including those who point to the injustice of the registry. In my opinion the man is a sex offender, a rapist. He should be kept away from children.
"In my opinion the man is a sex offender, a rapist. He should be kept away from children."
The question you're not asking is: "Was it consensual?" You demonize Sargent automatically, without any consideration of the relationship other than the ages of the participants.
In addition, you fail to define "children." I don't know if this guy also would like 5 year olds. Maybe this relationship with a teenager would be the exception in his life, not the rule. It's possible that he hates rape as much as you, and would never consider a nonconsensual relationship.
This sort of thing isn't so clear cut as you think.
Anonymous is making the argument that anybody under a certain age is unable to give consent. I'm not sure what magic then occurs that they can now give consent, but he IS asking the question "was it consensual?"
Anonymous seems to be unable to distinguish between shades of gray.
I thought about including the reasoning behind age of consent (that children under a certain age aren't able to give consent in a full, knowlegdable manner). However, each individual has a different age at which they are mature enough to decide. Anonymous seems to think that by being under X yoa, one is automatically unable to give consent, any evidence to the contrary nonwithstanding. 14 is stretching aoc far more than I would like, but we're given no information about these individuals other than their ages.
So 14 is iffy for you. Is 13 too young? What about a very mature 13-year-old? I've already addressed this argument. If you support age of consent laws, you have to draw the line somewhere. It is my considered opinion that if you have a law on the books that is not uniformly enforced, injustice will result.
You're setting up a slippery slope, and I'm not going to fall slide down it. Let me make my position clear: age of consent laws are rather crude at determining whether a child is actually able to give consent. I think that these case need to be decided based on the individual, rather than a one-size-fits-millions approach.
The state of Alabama, for example, sets age of consent at 16yoa, which is fairly typical in the United States. http://en.wikipedia.org/wiki/A.....ca#Alabama
In the 2000 census, Alabama had 320,000 between 10 and 14 yoa. It had 324 between 15 and 19. Quesstimating that 15 year olds were 25% of the latter group, we have 81,000 individuals less than one year under that age of consent. Certainly, there are a good number of those mature enough to make an informed decision on whether or not to give consent, if 16 is the average.
In Maine, specifically, aoc is also 16. As you noted, at 14 or 15, relationships are permitted with partners of less that 5 years age difference. Sargent, however, was of seven years age. This can be argued as a significant enough difference, but if five years isn't a problem, I fail to see how two more years makes a big enough difference.
"if five years isn't a problem, I fail to see how two more years makes a big enough difference."
It's a slippery slope. You don't want to slide down it, but you've not provided a reason that would keep us from sliding down it. If the law says 5, but you think it should say 7, what happens if the law is changed to 7. Will 9 then sound reasonable? Why or why not?
If you fail to support any standard whatsoever, then you are objectively not in favor of age of consent laws. Again, you don't want to go down the slippery slope, but there's no reason presented that would keep us from sliding down it.
So when a 10 year old boy and a 10 year old girl "play house" do they both go on the register? I hope so! Damn perverts!
Why would I an argue such absurd proposition, Bobster0?
What's the point here that really offends you? You mention 10-year-olds. Do you think there's an equivalence between 10-year-olds playing doctor (or house) and 37-year-olds having sex with 10-year-olds? If I take your comment in the best possible light, I'm going to conclude that you think such equivalences are too often made by some combination of hysterical legislators, overzealous law-enforcement officials and prosecutors. But I'm not defending any such miscarriages of justice. My position is simply that adults shouldn't rape or sexually abuse children, and, secondarily, that having an age of consent is a useful and just way of defining the boundary between childhood and adulthood; and, following from that point, I argue that a child who is "almost" at the age of consent is not in fact a sexually mature adult at the age of consent, but a child. Well, if you want to talk about 10-year-olds, that's your prerogative. In the sense that 10 is more than halfway to 16, you might say that a 10-year-old is almost at the age of consent, so what's the big deal? Or do you take a position that some "almosts" are more "almost" than others?
Look -- you're being an outright dimwit. Age of consent laws are STUPID, and so are you for even trying to defend them. Consent needs to include being informed; there are fully informed VERY young persons; there are middle-aged religious babblers that STILL don't know why dicks get hard or how to raise a child, much less prevent one or cope with the threat of disease.
Age of consent is "line in the sand" reasoning, the product of utter idiots who punted instead of engaging the actual issue. Of COURSE they need to look at every case individually; SMFC, you're talking about *completely* ruining people's lives here, for ridiculously little (or no) reason other than "oh hey, it's the law."
The ONLY way to do this right is to look at the people involved and the situation -- people are not cookie cutter products, and neither are the situations they choose to get into. This should be completely obvious.
And in case you're going to cite "it's the law", let me remind you that slavery was ALSO the law. law does not equal right. Right equals right, and *nothing* else does.
Age of consent is COMPLETELY wrong, it doesn't even come close to serving "justice", not that the folks in any of the legislatures or various courts would have any idea what that means these days, after their efforts to subvert the bill of rights, violate the ex post facto law restrictions, invert the commerce clause, etc., etc., etc.
dude.. go check your history. how old were people when they got married 500 years ago? 1000? 2000?
I find it interesting that you suggest I'm uniformed based on your vaguely expressed notion that in past times people married younger, on average, than they do today. I too have some vague knowledge of sex and marriage customs in different times and places. Sex with children is not unknown in the annals of the world's civilizations, but the fact that it has been done is not an argument that it should be done. You're responding to a point about 13-year-olds. Do you think sex with 13-year-olds should be legal?
What's a good age to break them in, in your opinion? Or would you have some other measure, such as menarche? Is that enough of a sign of maturity for you? Or, perhaps, you subscribe to the notion that "if they're old enough to crawl, they're in the right position."
Well, far be it from me to put words in your mouth. You seem to be responding the proposition of sex with 13-year-olds. I think where there are age of consent laws, they tend to a few years older. In general, when a nation passes a law that a person doesn't agree with, should that person ignore the law?
How many goats does you have?
Check the old Testament... especially you Bible thumpers. The Jewish age of consent for young males is 13, when they have their Bar-Mitzvahs. The celebration of coming into manhood and responsibility for their decisions and actions. The age for the Bat-Mitzvahs for females is 12. These are the ages that they become sexually able to procreate. Whether they have any brains at these ages is completely out of the picture. Once the hormones kick in, there is no need to try to close the barn door. Now we've raised the age of consent to 18, in most states. It's like we're trying to enforce morality in a country where the divorce rate is over 50%. Sure, Mom and Dad will go off to have a good time, doing whatever they please, because the nanny state will prosecute the pants off of anyone messing with your otherwise unguarded children. So, I propose that these laws are put into place by irresponsible parents who want their children to be baby-sat at tax payers expense, while they go off for cocktails at late night parties.
Isn't this just an example of a problem which usually troubles libertarian analyses? That is, how does one reconcile a desire to allow for absolute contractual freedom yet acknowledge the obvious fact that children are not as capable at forming contracts as adults? The only answer seems to be to say that childhood must be defined and that children have limited contractual rights and obligations. Age is the easiest basis for this.
I'd say age as a starter, but not an absolutist control on what the person may do. There should be an efficient and accurate procedure for a child to be decared an adult, and vice versa, and these cases should be examined more deeply.
I really like the idea of adding a teen classification between child and adult. Teens would be 15 or 16 to 18, and would have a smaller set of privleges than a full adult. This would allow for more reasonable distinctions.
That's fine. But the basic point still holds. It's obvious that there is a difference in the ability of children and adults (and teens or tweens or which other group you'd like to include) to consent and form contracts.
"There should be an efficient and accurate procedure for a child to be decared an adult, and vice versa, and these cases should be examined more deeply."
It would nice if such a thing existed. In this non-ideal world we have to find ways to muddle through.
You probably should have read the rest of the article. Although if to you too young + too old = rape then I doubt you'd get it anyway.
Is an adult having sex with a Lolita the same as an adult having predatory sex on defenseless minors? I think the article is merely trying to point out that the current one-size-fits-all sex-offender legislation is due for an overhaul.
Sexual activity and age of consent are much more nuanced than current legislation allows for and you should finish the article to see some other important points esp. CP sentencing.
I don't think it is a fair argument to label those who see the cut-and-dried current approach as 'not especially bothered by the sexual exploitation of children.'
Rather, I would say many of us think that law enforcement gets watered down and distracted from the serious perpetrators by shot-gun approaches.
"I don't think it is a fair argument to label those who see the cut-and-dried current approach as 'not especially bothered by the sexual exploitation of children.'
"Rather, I would say many of us think that law enforcement gets watered down and distracted from the serious perpetrators by shot-gun approaches."
That seems like a fair objection; however, I note that some of the people outraged by the Elliot case because it should have been understood as a teenage romance are also outraged by the Sargent case, which is much more evidently the case of a man having sex with a child. Several commenters here disagree with the idea that a child can be too young to consent to having sex with an adult. Although I believe that adults having sex with children is exploitative, deleterious, and ought to be illegal, I was receptive to Sullum until he began making excuses for a man who clearly broke the law. At this point I must insert the caveat that there are reasonable arguments for obeying all laws, including laws you disagree with. I don't fault Sullum for sympathizing with Elliot, although, by the same token, I do fault him for failing to sympathize with the parents of the minor, who pressed charges against Elliot. I criticize him for forgetting that the law does protect people, and it serves as an alternative to other forms of violence.
If this were simply about, say, how in the hell urinating in public got mixed up with raping children, I might take your criticism gladly. That kind of circumspection is not evident, however, in the arguments that are being put forward at this time against registries for sex offenders. Rather, I see that there are many who would rather not protect children at all, or who would leave the protection of children up to something murky and, I will argue, ultimately indefensible. So while my argument may not be specifically directed at you, others have indeed taken the position that "age of consent laws are an abonimation." It needed to be said.
"Although I believe that adults having sex with children is exploitative, deleterious, and ought to be illegal, I was receptive to Sullum until he began making excuses for a man who clearly broke the law."
This is Reason.com. Libertarians do not support all laws, and will happily defend those that break those which they find wrong.
"Several commenters here disagree with the idea that a child can be too young to consent to having sex with an adult."
I, for one, think that sure, a child can be too young. However, I think that individuals are not slaves to their age, and that each must be treated as an individual, with their own level of maturity. Some can make the proper decision at 15. Others can't at 18.
"outraged by the Sargent case, which is much more evidently the case of a man having sex with a child."
Please show your sources. I can't make a decision on this case until I have all the information. If he raped the girl, than he deserves nothing less than the full punishment of the law. If it was an entirely consensual relationship, then I see nothing wrong. (A side note, how does teenage romance make it better? Does love automatically erase the original offense? Does love even have a place in any legal code?)
"I see that there are many who would rather not protect children at all, or who would leave the protection of children up to something murky and, I will argue, ultimately indefensible."
Wanting a better system =/= wanting a worse system.
anonymous acts as if before these registries were put in place, there was a massive epidemic of pedophile sexual predators roaming all American streets and that no child was safe outside of their locked bedroom door.
At the Modern School, he fell in love with and married a pupil, 13 years his junior, Chaya (Ida) Kaufman, whom he later nicknamed "Ariel".
She met her future husband, Will Durant, while a student at Ferrer Modern School in New York. Will was a teacher at the school at the time, but resigned his post in order to marry Ariel. She was fifteen at the time of the wedding.
We should definitely lock up those dangerous sexual predators based on age discrepancy. (Adopts Eliot Stabler voice) Yeah, ya creep, it's off to the slammer for you Willie.
It is rather ironic that such an illegal liaison produced a marriage that lasted until their deaths 70 years later within 2 weeks of each other.
Thank you for pointing out something that I'd been meaning to: just because someone wants a relationship with someone much younger, doesn't mean they are evil pedos. Maybe they're just in love.
Kaufmann was 13? I don't know what the laws were at the time. It's my understanding that in cases of statutory rape exceptions were made for marriage. Generally child brides have been less and less common in the West. Would you like to legalize taking child brides? (I don't think that's your point, but I can't quite be sure.) Is there any age that you feel is too young for a person to legally consent to sex?
Certainly. I would say puberty is an absolute limit, and after that I say it depends on the maturity of the individual.
In a case say, like Roman Polanski, where the defendent claims a young teenager consented (or did not strenuously object), that standard essentially puts the alleged victime on trial rather than the defendent. That cannot be the result you desire.
...except that Roman Polanski also drugged the younger woman.
As for the Sargent case, I only have this source which came up from a quick google: Sex Offender? No thanks.
My opinion that it was rape is based on the law; in Maine 14-year-old children cannot consent to sex with men over 19. It seems to me that you might be arguing that the law could define rape better than it does, or "sexual abuse of a minor" if you prefer, and yet some of your objections seem pretty vague so as to leave doubt that when push comes to shove you would indeed endorse a legal definition of an age of consent.
I would try to pin you down. You say some people are too young to consent to sex. 15 is iffy. Is there an age that is clearly too young? If the people agree that 13 is too young, and an adult has sex with a child on the eve of their fourteenth birthday, should the adult be excused for his crime? I say if you start making excuses in that instance, you're effectively arguing that 13 should be the age of consent instead of 14. So what's your hard limit? Is seven a hard limit?
On taking into account individual differences in emotional and mental maturity: that seems reasonable on the grounds that we all know people are different, and yet it is unreasonable in the sense that it provides us with no common measure. In the absence of a legal standard, who's to say when a child is old enough to consent to sex? The child? The child's sexual partner? A bureaucratic committee? If we allow inconsistency here, I suspect that the rich and the powerful would be able to sexually exploit children as they see fit, while the indigent and those of low status would be punished. Justice would best be served if every adult knew what age a child must reach in order to be able to consent to sex.
"A side note, how does teenage romance make it better? Does love automatically erase the original offense? Does love even have a place in any legal code?"
Thank you for the intellectual discussion. For the side in favor of lowering ages of consent, or allowing exceptions amongst teenagers, I suppose their case would be less persuasive if they came out in favor young teen gang bangs, for example, or hate fucks. People are sympathetic to teenage lovers, so the idea of "Romeo and Juliet" laws is a winning one. I think it would be very weird if you had a different legal standard age of consent for BDSM than for making love. I wouldn't want to defend any such legal distinction. On the other hand, I can imagine some pretty extreme, horrible sex acts, so if we're going to open up the age of consent to debate, sadomasochism should probably be on the table, just so everybody knows what we're talking about.
As for the place of love in the law, I would interpret love very broadly and argue that there can be no just law in the absence of love. As far as I can tell, that is not a libertarian view.
There is a profound difference between breaking the law as an act of civil disobedience and breaking the law because you simply don't respect the law. Championing people who broke the law out of disrespect or careless disregard is a weak form of criticism, and probably not any more rational in the final analysis than mechanically supporting those who enforce laws simply because they like the application of force.
Let's come up with a compromise everyone (but socons, maybe) will hate: 25 as aoc.
You seem to still be missing part of the point. A large number of these laws wouldn't even exist as laws if it wasn't for some parent who went screaming to their representatives. Once the reps got their hands on it they turned it into something that only vaguely has anything to do with stopping actual violent rapists from committing violent acts of rape.
As for age of consent, why is it even being discussed as if children have no parents? Shouldn't there be some level of parental responsibility here?
If someone sends you a picture of a kid being sexually abused and you look at it, you go to jail. Seems fair.
Bobster0, presumably you don't mean to represent the kiddie porn caucus, but I have to say, you do make an impression.
I will stipulate that there may possibly be unjust laws with regard to the distribution of kiddie porn. The issue I took up, however, is the age of consent for having sex. If one provision for protecting children from sexual exploitation is unjust, it doesn't follow that all such provisions are unjust. I'm going to go out on a limb here: If you object to simple measures for protecting children from having sex with adults, you wouldn't be the person to look to for a defense of children from exploitation at the hands of pornographers. Thanks for raising this disqualification, I guess.
The government is not here to arbitrarily ruin people's lives based on incorrect and wrongful standards -- which is a perfect description of age of consent. The government is here to support and protect the population.
The obvious way to do that in the case where consent to the act is alleged by both parties but the state thinks, for some reason, that it might have an interest in protecting someone, is to determine both individual's ability to consent by inquiring into their state of mind and their breadth of knowledge.
For example: Do you understand what sex is? Do you understand what contraception is? What are the short- and long-term consequences of having a child? Did you perform any act that could result in pregnancy? Do you understand what an abortion is? What consequences may arise from an abortion? Do you understand what STDs are? Do you know how to take precautions against them? Did you? Why or why not? What consequences can arise from contracting an STD? --- and so on, probably for quite a while. It's not like this is actually a difficult thing to determine, if the attempt is actually made.
"Too difficult" and/or "too expensive" aren't adequate excuses to punt, either; otherwise you're saying the same thing as "there was a crime here, we're going to jail everyone within X distance of the crime because we don't want to spend the effort to find out who is actually guilty."
The kind of sex crime being discussed here can only be legitimately said to exist if there is true lack of consent; yes, that can absolutely derive from being clueless, and yes, that can mean someone was taking advantage of someone else, but the *fact* is, such a crime could actually be a knowledgeable 16-year old taking advantage of a 22-year old who is broadly uninformed; it also simply does not exist at all when both parties are knowledgeable and do consent.
Your whole line in the sand idea errs hugely in both directions: By design, it lets people walk who are criminal abusers in the upwards age direction, and it criminalizes and punishes people who are in no way hurting anyone in the downward age direction.
Your ideas -- and current law -- are both wrong. Go off somewhere, have some coffee, and *think* until you understand that the only sensible determination of legitimate consent involves mental process and capacity, not a count of birthdays. Stop supporting bad law; you are helping absolutely no one by doing so.
Wow, that standard would certainly ban some 30 year olds from practicing sex.
"Another word for nonconsensual sex is "rape." It is not a victimless crime."
It was NOT nonconsensual, you fucking idiot.
Age of consent laws are an abomination; no libertarian should support them.
"Age of consent laws are an abomination; no libertarian should support them."
I commend you for stating that opinion openly.
I also note your outrage.
"Age of consent laws are an abomination; no libertarian should support them"
Oh, so an adult could fuck a 12-year old or a 9-year old or get him or her to perform sex acts and it would be A-OK?
I consider myself a libertarian, but I'm not stupid enough to claim that children are just as capable of making decisions as adults. This is prima facie false. Unless you afford children (however you define them) all the rights and responsibilities of adults in contractual activities (explicit or implicit), you need to have a definition of what a child is to limit their rights and obligations. Again, age is the easiest.
Age is the easiest... but how correct is it? You know what would be easiest in the case of a complaint by you about a poorly mown lawn next to your house? Shooting all the homeowners involved, most definitely, including you. Cost to the state: a few bullets, easily recouped by taking possession of your homes and reselling them. Problem solved: there will be no more complaints from you, nor offenses by your neighbor. Bonus: next people to move in aren't likely to complain either. But if they do, easy fix, baby.
Oh, wait. Perhaps "easiest" is actually a really stupid metric, eh? One that doesn't recognize either the situation or confer any level of inherent appropriateness.
How about one that strives for accuracy and fairness, not to mention justice? You know... one that determines actual *ability* to consent, rather something that merely nods to the fact that someone has managed not to step in front of a train for X years?
Age of consent laws are *STUPID*.
Yes, it's completely OK for adults to have (consensual) sex with children. If it's not consensual (in fact, not according to some politicians' diktats) then it's not OK.
Sometimes I have trouble getting the diaper off before I cum.
Does that mean no libertarian should support a minimum age for contract signing, the juvenile justice system, etc?
No sensible person should use age as a metric for anything. There are far better metrics readily available, and they would doubtless address every reasonable concern a sensible person might have.
You missed the point of the article entierly. It did not argue that statutory rape should or should not be a crime. It argued that the proported jsutification of the registry requirements is the risk of re-ofending. A 16 year old who wants to sleep with 14 year olds will almost always become out as a 25 year old who wants to sleep with 23 year olds. Not 14 year olds. For such an extreem extra-judisal punishment to have even a veneer of morality, there has to be an iorn clad public safety jsutification. For statuatory, public urination, exposure, etc crimes there is none.
I don't think I did miss the point, ember, but perhaps you missed mine. Sullum characterized Elliot as "nonviolent" and as "posing no risk." The people who pressed charges against him didn't feel that way. Apparently the question of whether statutory rape is a violent or nonviolent offense is a matter of some dispute. In my opinion it is violent. Sullum didn't need to engage in this argument to make the point you would like take from his article.
I'm not completely sympathetic to 19-year-olds who seduce 15-year-olds, but I understand that many people don't want to criminalize that behavior.
It seems that part of the complaint in Elliot's case is addressed by subsequent legislation, the so-called "Romeo and Juliet" provision for a five-year age-gap. That's why it's so instructive to look at the arguments in defense of Sargent, which attack the sex registry, even though the age-gap in that case is more than the five-years allowed by statute. Maine has changed its law to be forgiving of people like Elliot, but the arguments against the sex registry persist.
I will ask you a hypothetical: Is it reasonable to put a 37-year-old who has sex with an eleven-year-old on a registry of sex offenders? If you think that it is reasonable to draw a line somewhere, I submit to you that Maine drew a clear line and Elliot crossed it; Maine drafted an exception for teenagers in love, but kept a sharp line which Sargent crossed. Well, if you don't support any kind of line being drawn, I don't see how you can claim to support age of consent laws at all. That's my point.
without these age of consent laws, every 40 year old man would leave their wife to fuck 2 year olds. YEAH! SOMALIA!
Because Elliot broke this iron clad law that shows he definitely committed violence, he deserved to be marked for life and hunted down by hysterical vigilantes.
Sullum isn't necessarily arguing that Elliot is innocent. He's arguing that he shouldn't be marked for life for having sex with a girl less than 4 years younger than him, and grouped in with people who use drugs and weapons to coerce sex. But subtlety and nuance doesn't seem to be your thing.
I in no way supported vigilantism. Quite the contrary. (If you are worried about vigilantism, you should care that the law is effective at punishing offenses and at protecting society from offenders.) It's rather unreasonable of you to make the leap you did.
I won't speak to my appreciation of subtly and nuance, because if I'm stupid as you imply I am, and my reasoning is superior to yours, then I'd be effectively calling you names, and I don't want to stoop to that. I will speak to what Sullum actually wrote. He said Elliot was "nonviolent" and that he posed no risk. If you consider the point of view of the parents of his victim, which may or may not speak to nuance, that assessment is flawed.
So because the parents disagree with Sullum, they're automatically right that it was violent? What's your argument here?
I saw a man once help my son up after he tripped. I decided it was violent and had him arrested; since I'm the parent I have ultimate authority over declaring things to be violence as regards my children.
Furthermore, yes age of consent laws are ridiculous. If the courts can determine standards for mental illness based on actual medical/psychiatric science, they can determine standards for ability to give consent. It may not be perfect, but I'd much rather have that than your arbitrary "it's the law so it's forcible rape" rule.
"So because the parents disagree with Sullum, they're automatically right that it was violent? What's your argument here?"
My argument from the beginning is that Sullum is doing more than reason requires to make a critique of sex offender registries. His assertion that statutory rape is nonviolent is controversial. His assertion that it puts nobody at risk is risible.
My premises are that children are harmed when adults have sex with them, that such acts deserve to be called rape, and that they are a kind of violence.
What I'm saying with reference to the parents is twofold: (1) I support my view that some parties are harmed by statutory rape; (2) I suggest that Sullum was neither nuanced nor subtle in his use of Elliot's case to make his argument.
I don't think you care, but I'll throw the question out there. Does the fact that Maine introduced a "Romeo and Juliet" exception in any way change your opinion about the force of Sullum's argument against sex offender registries? In my view, it renders the Elliot case moot. Nobody today is being added to sex offender registries in Maine based on sex between a 15-year-old and a 19-year-old. It's kind of like complaining that governments used to put women on trial for witchcraft. It's good to know, and relevant to some arguments against government abuses of power, but it would be misleading if, by omission, one implied that laws haven't changed since the days of the Salem witch trials. If the question then is now moot, then why is it part of Sullum's argument?
In any case, it's illogical to read from what I wrote that the premise that Elliot's crime had victims automatically leads to the conclusion that it was violent. The idea that statutory rape is violent is my view, which I have acknowledged is controversial. I don't quarrel with Sullum for disagreeing, but I rather doubt this is the argument he wants to have. He's on much surer ground when he argues that urinating in public is relatively harmless and shouldn't stigmatize one for life. Attesting to Elliot's harmlessness wasn't necessary. I raised the question of whether it wasn't a surreptitious way of ginning up support for the position that laws aren't needed to protect children from adults who want to have sex with them. I'm glad I did, because the truth seems to be seeping out.
"age of consent laws are ridiculous."
I understand that you're not at the point of saying that it's okay for adults to rape children, but I think you're argument is weak, and you are in fact perilously close to failing to support practical, judicious measures to protect children from harm.
Having an age standard is preferable to impaneling a group of psychological and medical experts to determine whether a child is ready to have sex. I agree that age is a crude measure of maturity; it has the advantage, though, of being something that under normal circumstances isn't assigned by a bureaucratic agency. Furthermore, our laws use age to confer all sorts of rights and responsibilities. It is completely consistent to treat sex the same way. It may seem unfair to precocious youngsters who want to drink, smoke, go to war, vote and so on, but it's hard to make the case to adults that such laws are grossly unfair. The thought of having a judicial process for every teenager at every step on the road to adulthood is ridiculous. Is that seriously what you're advocating?
Perhaps you're only imagining a case that's been brought to trial? Logically, though, in that case you would have to have a pre-existing standard that would warrant some kind of sexual consent hearing; you wouldn't have any legal issue at all in the matter of sex between consenting adults; so at what age does the presumption of consent become questionable? Or, other than age, what universally understood sign of adulthood would you have us use?
Think about this from the position of the citizen who wants to have sex with young adults but not children. Would you rather have a law that clearly told you the difference between children and adults, as imperfect as that was, or would you rather take your chances with a judge, a doctor and some psychologists? Justice is served by having a clear standard everybody can easily look to, even if some people disagree with it.
"And if you can't take the hits, don't step into the ring nancy."
Is name-calling an example of subtlety or nuance? (I don't want to be vicious, but you make it hard to resist.)
"I in no way supported vigilantism. Quite the contrary. (If you are worried about vigilantism, you should care that the law is effective at punishing offenses and at protecting society from offenders.) "
The guy who killed Elliot clearly thought all sexual predators deserved death. I doubt that if he served 5, 10, 15, etc... more years that would have made him innocent in his eyes. Sentences and laws should be decided by logical and dispassionate moral deliberation, not by the fact that if we don't punish x offenders y number of years, z amount of people will become mad with us. The legal system should be about protecting society (ALL aspects - law abiders, cons, and ex-cons) and rehabilitation, not satisfying peoples' moral outrage.
"I don't think you care, but I'll throw the question out there. Does the fact that Maine introduced a "Romeo and Juliet" exception in any way change your opinion about the force of Sullum's argument against sex offender registries? In my view, it renders the Elliot case moot. Nobody today is being added to sex offender registries in Maine based on sex between a 15-year-old and a 19-year-old. "
The Salem witch trials were several hundred years ago and unrelated to sex crime laws in modern America. The Maine case happened within the last decade. And as you saw in the article, in places like Texas 10 year olds are having to register for youthful indiscretion with 5 year old relatives. It's important to show the Maine example because it shows that people came to their senses that these laws can set dangerous precedents.
Below this post, you basically condemn Elliot, only allowing him a small amount of sympathy because he broke the law, when now in fact that law has been changed, and he would have been scott-free if it happened today. You appeal to authority to deride him, now you appeal to authority to show how he's harmless. Choose one.
"In any case, it's illogical to read from what I wrote that the premise that Elliot's crime had victims automatically leads to the conclusion that it was violent. The idea that statutory rape is violent is my view, which I have acknowledged is controversial. I don't quarrel with Sullum for disagreeing, but I rather doubt this is the argument he wants to have. He's on much surer ground when he argues that urinating in public is relatively harmless and shouldn't stigmatize one for life. Attesting to Elliot's harmlessness wasn't necessary. I raised the question of whether it wasn't a surreptitious way of ginning up support for the position that laws aren't needed to protect children from adults who want to have sex with them. I'm glad I did, because the truth seems to be seeping out."
Laws are of course needed to protect children and humans of any age from violence and coercion. I don't view the fact that adults and "children" having sex is automatically violence, as you've noticed. You've failed to provide proof that what Elliot did harmed the 15.75 year old. As stated above by yourself, Elliot's "crime" doesn't exist anymore. This is the point I and others have been trying to make: Using an arbitrary line to decide that people are violent monsters or not, bereft of any... wait for it... SUBTLETY OR NUANCE!
"Think about this from the position of the citizen who wants to have sex with young adults but not children. Would you rather have a law that clearly told you the difference between children and adults, as imperfect as that was, or would you rather take your chances with a judge, a doctor and some psychologists? Justice is served by having a clear standard everybody can easily look to, even if some people disagree with it."
How about: An age where any and all can legally give consent, and below that age, the team of doctors, shrinks, and judges. Once again, you keep saying it's this ridiculous expansion of bureaucracy, but it's how the mental fitness evaluation currently works. And as you saw in the newspaper article above, sometimes older men and young adults have 70+ marriages. I'm sure that guy today would rather take his chances with shrinks and judges.
"Furthermore, our laws use age to confer all sorts of rights and responsibilities. It is completely consistent to treat sex the same way. It may seem unfair to precocious youngsters who want to drink, smoke, go to war, vote and so on, but it's hard to make the case to adults that such laws are grossly unfair."
I don't agree with drinking, smoking, or porn-buying minimum age laws, so we've settled that. As for voting rights vs. sex rights, sex is directly related to the most fundamental and profound civil right of all - the right over ones own physical body. This is the most basic and sacrosanct of civil rights. The right to access to political process merely derives from these. And hey, if someone below 18 can pass the basic citizenship test, I say let them vote (not they will anyway - surely you've seen the numbers for young voter turnout). After 18, the voting rights act takes it from there.
Mine and DK's suggestion of individual evaluation may give leeway to a bunch of bureaucrats in the vein of doctors, judges, shrinks, sociologists, other unsavory characters - but I would rather privilege those than a system which privileges prosecutors, police officers, child protective services, and other agencies that have a state-sanctioned monopoly on violence. Your assertion that without age of consent laws the US will turn into some rapetocracy of child abuse is as absurd as those who suggest libertarianism will turn the US into some oligarchical robber-baron nightmare.
"Is name-calling an example of subtlety or nuance? (I don't want to be vicious, but you make it hard to resist.)"
Justice is best served when insults are clearly stated and known.
"It's important to show the Maine example because it shows that people came to their senses"
Who showed you that the Maine laws were an example of people coming to their senses?
"You appeal to authority to deride him, now you appeal to authority to show how he's harmless. Choose one."
Your premises are bogus, and you don't know how to properly spot and argue against improper appeals to authority. The argument that one should follow the laws where one abides comes most famously from Socrates--that citation constitutes an appeal to authority, and it's a very fine one, though if you are familiar with the dialogues and their interpretation, you will know that scholars have noted a contradiction between Crito and the Apology on this very question, and much debate has ensued. Anyway, I did not "appeal to authority" as that term is defined in classical rhetoric. I took the position that one should obey the laws, which is quite a different matter. Secondly, I did not deride Elliot. I pointed to the apparently rather uncomfortable legal fact that he had harmed somebody. That's quite different from derision. Thirdly, I am not convinced that he was harmless, so I certainly did not argue that he was. I simply pointed to the legal fact that whatever harm a man in those circumstances might cause today, he would not be regarded as a criminal under the law. Many harmful things are not criminalized, for better or for worse. Your premises are thus thoroughly bogus. I reject them, and I suggest that if you wish to debate me, you begin by honing your reading skills.
And, finally, if you make do make a brief study of rhetorical fallacies, be sure to take a look at false dilemmas. If your premises weren't bogus, you'd still be presenting a false dilemma.
"This is the point I and others have been trying to make: Using an arbitrary line to decide that people are violent monsters or not, bereft of any... wait for it... SUBTLETY OR NUANCE!"
It's very amusing that you use an incoherent sentence to lead up to an exclamation of "subtlety and nuance!" in capital letters. If you tell me that you went to crappy schools and were too poor to go to college, or that you're too young to have had much chance to better yourself, then I might refrain from laughing at your attempts to berate me. Here's a hint: it's better to attack the argument being presented than to attack the person making it. When you argue from the presumption that you're smarter than your opponent, if that turns out to be true, then any point your opponent scores makes you look pretty stupid by comparison; if it's not true, you look stupid for having made the presumption to be the more intelligent debater. Do you understand now that you've made a mistake and that you keep repeating it? One doesn't beat one's chest and scream about subtlety and nuance without raising a few eyebrows.
"How about: An age where any and all can legally give consent, and below that age, the team of doctors, shrinks, and judges."
So you do agree that there should be an age of consent? It was logically inherent in your position. At this juncture I'm pointing this out for your sake, as well as a kind of lackadaisical intellectual curiosity. I think you would be happier if you knew what you really believed.
"I don't agree with drinking, smoking, or porn-buying minimum age laws."
I strongly urge you to consider whether you actually care at all about protecting children from harm. I sense you're a little conflicted, but when you get worked up you seem to be leaning in the direction of not really caring.
Since other people do care about protecting children from harm, and we do have laws in this country that prevent children from drinking, smoking and buying pornography, I wonder whether you feel it's acceptable for citizens to disobey those laws. Generally, if you hold the position that some laws ought not be obeyed, how does one decide which laws to obey and which to violate?
Thanks fyngyrz - you have nailed it, and in the above post "anonymous" has fully put out his SoCon puritan credentials. Starting from the bottom up:
-There is expansive literature on this site and many others to the uselessness and capriciousness of drinking/smoking/porn buying age laws. My support of getting rid of these laws shows that I care about protecting children much more than you, sir.
"So you do agree that there should be an age of consent? It was logically inherent in your position. At this juncture I'm pointing this out for your sake, as well as a kind of lackadaisical intellectual curiosity. I think you would be happier if you knew what you really believed."
-Nice try: I believe I stated "age of consent laws are ridiculous", not "age of consent laws should be repealed completely". I want more allowance for S&N, and the admission that age is a very crude indicator; and that "breaking" the line in the sand does not make one a violent pedophile out to harm children.
"I took the position that one should obey the laws, which is quite a different matter. Secondly, I did not deride Elliot. I pointed to the apparently rather uncomfortable legal fact that he had harmed somebody. That's quite different from derision. Thirdly, I am not convinced that he was harmless, so I certainly did not argue that he was. I simply pointed to the legal fact that whatever harm a man in those circumstances might cause today, he would not be regarded as a criminal under the law. Many harmful things are not criminalized, for better or for worse. Your premises are thus thoroughly bogus. I reject them, and I suggest that if you wish to debate me, you begin by honing your reading skills."
-Spare me the classics 101 lesson professor numbnuts (but goodcall on my misuse of a logical fallacy - congrats, you're understanding how things work around here!). The bottom line is that you and the state of Maine are merely using age limits to define "violence", not any sort of, you know, actual measure. Arbitrary, capricious, etc... Elliot violated a law which no longer exists; this shows that maybe, just maybe, the law itself was ethically in the wrong? And therefore... maybe, JUST MAYBE, people who violated it... WEREN'T VIOLENT CRIMINALS!?
";It's important to show the Maine example because it shows that people came to their senses'
Who showed you that the Maine laws were an example of people coming to their senses?"
-It shows that people (voters and legislators) realized that teenagers having sex wasn't a dangerous and violent crime.
Then again, here I am I am arguing with a paleocon/socon. I lose automatically :-(
"My premises are that children are harmed when adults have sex with them, that such acts deserve to be called rape, and that they are a kind of violence."
As long as you continue to abuse the term "children" to include sexually active and informed teenagers by hewing to the clueless "age of consent" concept, your premise is wholly invalid, and your arguments specious.
And if you can't take the hits, don't step into the ring nancy.
Do you believe that Elliot poses a future risk to children? Yes or no?
And if no, what is the justification for putting him on this list?
Possibly, yes. I don't know enough about the case to speculate as to what possessed Elliot to break the law. When I was his age I knew the expression "jail bait" and I kept away from 15-year-olds. However, I wouldn't insist that everybody abide my standards. It's enough to abide by the law. If there is a reasoned complaint about the way the law was written when Elliot broke it, then the current law in Maine has rectified that situation. A guy who did what Elliot did today wouldn't be put on such a list. Therefore, reducing the question to one of whether Elliot got a fair shake is moot.
There is no such thing as jail-bait. Jail-bait implies that she is sexually attractive which is impossible since she is a child. to admit that she is jail-bait means that you are a pedophile at heart and thus should be locked up to prevent you from inevitably acting on your predisposition to child-rape.
I have a feeling you're responding to a discourse that's not been at the center of my concerns. I'm not in favor of criminalizing thought. I am in favor of criminalizing adults having sex with children.
I'll continue with another fishing metaphor. When you catch a trout that's too small, you throw it back. The law doesn't penalize you for getting it on your hook and reeling it in. It will penalize you for keeping it. A lot of tackle boxes contain rulers for just this reason. Here today my argument is all about using rulers to measure whether or not you get to keep that fish you caught, because there are indeed those who are against even that basic regulation of the sport.
Speaking of fishing, did you know that it's now a felony in Texas to modify your fish caught in a tournament by adding weights? I mention this not because it isn't a bad thing to do. It is. But it gets back to one of the points the article was trying to make. Legislators have a tendency to go off half-cocked in responding to bad things. Megan's law and many others were poorly thought-out knee-jerk reactions that have had many unintended consequences over the years.
"It's enough to abide by the law."
Oh, is it? So you would be in favor of slavery if the law still supported it?
Your ability to think clearly is not in evidence.
Sometimes the law is simply wrong, and therefore, simple obedience is also wrong.
A 15 year old is reasonably in the social circle of a 17 year old. Reasonable people can argue about whether this should be a crime, but it does not imply a life long pathalogical problem. It is not reasonable to argue that such a 17 year old should be expelled from the human race. A 37 year old after 11 year olds is much more likely to be pathalogical. This is not tha same situation at all. Even with that case though, if we think as a society they are too dangerous to be released, then we should set the prison sentancing that way. To force them into a half existance on the edges of society is immoral, no matter what the crime.
Indeed, teenagers socially mix with teenagers of different ages. I think "Romeo and Juliet" exceptions are necessary to accommodate this, so in a small way I feel like Elliot got a raw deal. On the other hand, he wasn't 17 but 19, an adult, and he should have known the law as it stood when he broke it.
I'm happy to know that you think some cases are pathological. Once you acknowledge that, I think it's incumbent upon you to support some kind of legal standard that would protect children from sexual predators. In Maine right now they have a clearly defined law with a "Romeo and Juliet" exception that some people still run afoul of. Some people are clearly less bothered by the rape of a child than they are by the prospect of seeing the perpetrator's name placed on a list of sex offenders. I find that remarkable.
Ostracism and exile are unpleasant. Dehumanization sounds awful. I don't support it. Nevertheless, since we're just talking, let's consider some extremes. At one extreme society allows children to be raped, abused and exploited. At another extreme society allows parents to avenge the rape of their children in whatever way they see fit. I think if you're going to wade into this debate, it's better to acknowledge up front that children are indeed harmed by sexual abuse, that parents are rightly angry when their children are sexually abused, and that as harsh as the law seems in some cases, in general it is nowhere near as harsh as the kinds of revenge scenarios that would truly begin to satisfy aggrieved parents. In the grand scheme of things, asking that child molesters be kept away from places where children congregate is rather civilized.
I will listen to a case for reforming current sex offender registration laws, but not if it comes at the expense of respect for the law, or respect for the young victims of sexual abuse.
On the other hand, he wasn't 17 but 19, an adult, and he should have known the law as it stood when he broke it.
From a legal angle, you have a point. However, to imply that he "might be a threat" is an injustice. You don't know how him. I don't know him. You know only the facts of the case. The facts of the case are that two similar situated (in age) teenagers had sex which they regarded as consensual. This is not a 19 year old on a 13 year old, but rather a girl in spitting distance of the legal age of consent. Furthermore, the "threat" he posed to young teens and children generally is a separate issue. You're ignoring the fact that his actions were taken in the context of a pre-existing relationship with the girl. There is no evidence that he had a lolita complex.
"It is not reasonable to argue that such a 17 year old should be expelled from the human race. A 37 year old after 11 year olds is much more likely to be pathological. This is not tha same situation at all. Even with that case though, if we think as a society they are too dangerous to be released, then we should set the prison sentencing that way. To force them into a half existence on the edges of society is immoral, no matter what the crime."
With the recidivism rate of less-that 5%, over a period of 3 years for first time offenders, and a less-than 3% rate over a period of 10 years for those who receive treatment, ALL of these blooming laws do is burden the tax payers, and does little towards the stated goal "No More Victims", when 90% of the new cases are by people known to the victim, and not someone on a list. Ergo, who is zooming who here? And, why? I would like to know how the money flows into these registries, and if states are being financially rewarded by the feds on a per-head basis. If so, then the best that can be said is that we traffic profitably in human misery. Isn't that a form of rape?
There are 5 forms of abuse, not just one. Intellectual, emotional, physical, sexual and spiritual. Let me toss this out, "Abuse" is a misdemeanor term. "Rape" is a felony level abuse. Why can't we say that one who financially robs the country of a trillion dollars is guilty of rape? Lives were/are wrecked emotionally, and later physically, when someone's retirement account went up in smoke, due to unregulated banking practices. Or, someone beating another with an ax handle into a bloody meat sack, is that attack not a physical rape? It would be, if physical abuse was taken to the felonious stage. Some idiot pastor telling his congregation that God just told him to tell them to sell all of their possessions to await the rapture, isn't that spiritual rape? Methinks we need to broaden the discussion to include all forms of one enforcing their will on another, as an assault, and even a rape, if taken to the felony level. Something to put in your pipe to smoke on. Oh yeah, include all of these new rapists on the registries, too.
Arguments for lax or arbitrary enforcement of laws are troubling if they are accompanied by the claim that nobody will be victimized under such a regime. If you want to argue for lax enforcement, you might as well admit that you're not especially bothered by the sexual exploitation of children.
As a Christian, I say that what you call "lax enforcement," the Church calls the application of the virtue of mercy. The virtue of mercy is coexistent with the virtue of justice. Were the judge a decent man, he would have displayed the virtue of mercy in throwing out the charges on the ground that they were nearly a technicality.
I am bothered by the sexual exploitation of children. I also don't believe that a ~16 year old girl is a child. The Church recognizes mentally competent ~16 year olds as being completely accountable for their sins before God. What they did was fornication, not rape.
"Either you support age of consent laws or you don't."
I don't.
Youth Rights, motherfucker!
Great article. You shredded it, Sullum. Shredded. It.
nobody actually thinks that the ability to consent actually happens all of a sudden after a certain age. This is another bullshit strawman you fucking idiots came up with. But what all the normies get is that if you're going to use law to punish people, there has to be some cutoff point and/or parameters in general. At the very least the law should be knowable. But you idiots would leave everything to your thought-avoiding default "courts" "solution" that you parrot so much. That is, you'd leave such serious decisions to the whims of men, who are easily swayed. Any manipulative father could get a conviction with a sob story for his daughter if he didn't like her boyfriend, and then someone who was actually not able to consent and suffered srious damage as a result of a relationship might not be able to get a conviction if they suck at convincing a jury. People can be fickle, and juries are no different.
But the objectivity of the law doesn't matter to you idiots. If I get sent to rape-stabby-land (prison), it's a-ok with you guys as long as there was no explicitly written legislation that caused it, regardless of whether I could actually know whether what I did would end up being effectictively illegal.
Also, get your fucking facts straight. It isn't always a simple cut off point. In New Jersey, the law is 14-16 can be with no older than 4 years older, 17 with anyone, but both groups barred from anyone who is "in a position of power or inflkuence" or something like that and 18 is full sex-age choice allowed.
It's easy to argue against laws if you misrepresent them. Though, you're not misrepresenting them, you guys are actually just that fucking stupid and yet still run yourt mouths when you know noner of the facts about a subject.
"But what all the normies get is that if you're going to use law to punish people, there has to be some cutoff point and/or parameters in general."
Rule of creepyness. I've seen it defined, though I don't remember the exact formula. I think it was that the minimum age of person you could have sex with without it being creepy was (your age/2) + 7. Something like that, at least.
Minors should be exempt from statutory rape punishments, as otherwise we're dealing with a paradox where we consider them responsible for their actions in order to punish them, yet consider them unable to be responsible in order to have a crime to punish.
"I think it was that the minimum age of person you could have sex with without it being creepy was (your age/2) + 7."
((your age/2) + 7) x 0
And the whims of Concerned and Outraged Mothers aren't "easily swayed"? Give me a fucking break.
Courts aren't the deus ex machina you think we think they are. They need a lot of work. But under ideal circumstances (which are about as similar to ours as a supernova is to a cabbage), courts could be relied upon to objectively enforce objective, rational laws.
So the courts can be easily swayed by men, but the legislatures that draft your beloved arbitrary lines-in-the-sand are paragons of objectivity and iron-clad rationality?
"That is, you'd leave such serious decisions to the whims of men, who are easily swayed."
Men cannot decide what is right and wrong. Therefore, we need laws made by men to decide what is right and wrong.
This gives me an excellent idea. What we need is:
Robojudge™ will be programmed with all applicable laws for whatever jurisdiction it presides over. When a decision is needed, all of the facts will be fed into Robojudge™ and a verdict will be reached based on the letter of the law. When it comes time for sentencing, Robojudge™ will use a highly sophisticated random number generator to calculate any ranged numerical values. Robojudge™ feels no pity. Robojudge™ shows no mercy. Robojudge™, acquire one for your municipality today.
I knew a guy once who claimed that we needed robots to administer communism, because humans couldn't do it.
that's the comsymp's usual excuse.
"well, the problem wasn't that communism doesn't work, it's that THESE communists did it wrong"
repeat for all instances of communism
they used bullets instead of hoes, that's what they did wrong!
no retard, we need people or the representatives to vote on an objective standard, as opposed to letting the law be unpredictable via courts making those decisions. Try reading what I wrote, like where I wrote:
"Any manipulative father could get a conviction with a sob story for his daughter if he didn't like her boyfriend, and then someone who was actually not able to consent and suffered srious damage as a result of a relationship might not be able to get a conviction if they suck at convincing a jury."
You fucking fuck fuck fuck morons think you have a "GOTCHA!" when I talk about the whims of men and the judicial system vs. legislated law, but any fucking idiot knows the difference. Once a law is written, it's what dictates what is illegal and legal, and the court enforces that. Otherwise, the court essentially has to write it's own law, and in a very un-democratic fashion I might add. Aren't YOU guys the ones who bitch about "legislating from the bench"? What did you think that phrase means?
Retards. Try learning a little fucking something about our legal and court system before you start running your fucking stupid mouths. You dumb fuck fuckedy fuck fuck fucks.
You fucking fuck fuck fuck morons think you have a "GOTCHA!" when I talk about the whims of men and the judicial system vs. legislated law, but any fucking idiot knows the difference.
If you're the definition of a "normie" then you might as well just call yourself a "crass, boorish ass" instead of making up a new word.
Those kinds of manipulations can happen even with "objective laws". There are court-enforced standards for mental competence, there can easily be court-enforced standards for ability to consent (indeed, in many cases these are one and the same).
So the answer to men (or women) setting sentences for sex offenders could be answered by mandatory sentences.
Just remember that mandatory sentences are written into the criminal law, which is drafted into law by people who get elected by the public, and signed by another man (or woman), the elected chief executive.
Everything we do to one another is pretty much done by humans unless it's an act of God or nature.
Yes, I'm that fucking stupid, but at least I know how to hide it.
And I can spell.
If I get sent to rape-stabby-land (prison), it's a-ok with you guys as long as there was no explicitly written legislation that caused it, regardless of whether I could actually know whether what I did would end up being effectictively illegal.
You win this round, sir.
Having sex with your sister, consensual or not, OUGHT to mark you for life. There are no extenuating circumstances for such conduct.
Yeah, it should mark you as a weird and creepy person, by those who know. My fucking taxes shouldn't contribute 1 cent to that though.
But what if she's reeeeeeeally hot?
My sister was reeeeeeeally hot - when she was 7. Back in the days when I appreciated older women.
why? because it grosses you out?
why? because it grosses you out?
You can say that again!
Half-brother and -sister were separated at a young age and fell in love later not realizing the relationship
'Don't do it Arthur, don't do it! She's your..... crap... too late.... sister.'
Merlin 6th C Britain
Bill, under the circumstances, I think the most compassionate, intelligent approach to those kids would have been to get them immediate psychological help. Yes, their behavior raises huge red flags, but for them and their well-being, not for the rest of us.
None of us are in danger from their behavior, although they are and that this is the only solace they were able to find is a warning to us all about the people who get lost in the system or fall through the cracks. My heart breaks for them.
She held me down. What was I supposed to do? She is free, I go to prison. Makes sense?
These laws should be seen for what they really are - anti-male bigotry.
The problem is mission creep. The registry was meant to list those who did X. Then they added A, B, C, D...
It's born of the same frame of mind that thinks suspending a high school girl for having Midol is OK.
The entire idea of a registry is stupid. If someone truly presents a danger to the community, keep them in prison. Otherwise let them be.
I'd be curious to see a study of the effect of registries. It wouldn't shock me if it made people more, not less, likely to reoffend.
The studies show little to no difference towards recidivism of the same crime, but those on the registry do get locked up again for other offenses, like failing to register, or other probation infractions that have nothing to do with the original crime. In other words, since someone has to do the paperwork, there might be the chance that being on the registry has more than the usual amount of opportunity to re-punish the offender, especially by an officer inclined to do so.
That is scary stuff. Way too much power and authority vested into people not traditionally accountable for their prejudices, nor responsible for the well-being of those in their charge. That is the "bad parent" rule. Power and Authority where Responsibility is absent.
I agree that we need to find a way to differentiate teenage lovers from predatory sex offenders.
However, you seem to be using the same statistics and technicalities in order to support your argument that sex offenders aren't as likely to re-offend as we think. Those statistics include the same categories of offenders you (and I) would remove from the registry.
Also, re: child porn. I'm sorry, but every decent man and woman needs to get the message out that this kind of behavior will not be tolerated. When someone downloads or purchases that sort of image, they support the industry that created the image and add to the demand for those sorts of images, thereby endangering more children. You can't pretend your innocent of a "real" crime when you add to the commission of such crimes by buying the proceeds of them. Sorry. I'm real hard-line on the real sex offenses, and the entire child porn industry falls into that category. EVERYONE who benefits from the child porn industry, either materially or via physical gratification, is a violent, predatory sex offender. No ifs, ands or buts there.
You open an email that has an attachment. You look at it. It's child porn! You sick animal! Go live under a bridge!
Nope. That's not the same thing as actively seeking out and/or purchasing such images, and this sort of history can be traced by law enforcement incredibly easily these days.
There's plenty of hysteria to go around, it would seem. The hysterics who want every infraction of every law, regardless of the circumstances, categorized as the same, and the hysterics who want the procurement of child pornography off the list completely -- or worse, who want to "normalize" sexual relationships between children and adults (by which I mean dirty old men and dirty old women and little children, not an 18 year old/16 year old bf/gf couple).
"by which I mean dirty old men and dirty old women and little children"
So... is a physically mature, sexually active, thoroughly informed person in the set of "little children" according to your statement?
Or are you actually talking about innocents who cannot consent, and you simply used the term "little children" in error?
If you draw your line only using age, you realize you're leaving out all older innocents, don't you? What about them? Too bad? It's ok to take advantage of them because they managed not to step in front of a bus for X years?
Some person -- a predator in the classic sense, really -- can go hunting the simple-minded and/or uninformed, drill them blind, walk off whistling, and that's perfectly ok with you?
And of course, what about those younger folks who are sexually active and well informed? Are they... "little children"? If they're not, and they decide they want a romp with a 30-, 40- or 90- year old for whatever reason, what's your objection?
If they *are* "little children" in your view, I'm sorry to inform you that your view is wholly dysfunctional, and abusive to older persons, and you really shouldn't be having sex until you are better informed.
Also... why would sexual behavior or acts -- or the individuals themselves -- between consenting, informed, capable individuals necessarily be "dirty"? Also, if both parties want (cough) "dirty" sex, what is your problem with that? I think you must misunderstand how informed, consensual sex is normally pursued.
Just wondering, Nora. Your statements are expressed in such a righteous manner, clearly you are convinced of their correctness, yet your points are *very* poorly expressed and consequently the worth of your reasoning is presently in grave doubt. I have serious concerns about your competence, which I hope you will address with a brilliantly written clarification of these points.
So having read a few of you posts now, it seems clear that you are rationalizing. You are seeing people who are clearly talking about actual child rape and you are trying to lump it in with a 17 year old taking naked picture.
No. I'm most definitely not talking just about 17 year olds. Nor am I "rationalizing." I'm thinking. And you should be too.
This subject demands precision; a great deal of the rhetoric is broad-handed and sloppy (and in many cases, simply wrong.)
A huge amount of the injustice done in this area is because people are sloppy about their thinking, their reasoning, and their speech -- and it quite predictably ends up being sloppy, unreasonable law.
I suggest you read again. If you have a specific issue to take up with me vs. the positions I've laid out, such as age of consent, or the ability of naive adults to consent, or the legitimacy of large age gaps, I will engage you. Vague accusations of "rationalizing" don't cut it.
sounds like you have your defense already mapped out.
'Biologically, a child (plural: children) is generally a human between the stages of birth and puberty'
I think most of the arguments are dealing with the shadier realm of adolescence: sexually mature but psychologically not.
Virtually no one *buys* child porn. Congress has claimed it's a 20 billion dollar per year industry - bigger than Hollywood *and* adult porn combined. Mr X, an insider familiar with the most successful child erotica website ever (legal at the time and jurisdiction) claimed it maxed out at about $1m of income in one year. (This in a wikileaks document.) Long time ago, FBI agent Lanning asked the question: why are the children in child pornography always smiling and laughing? The answer was that they just didn't understand how badly they were being victimized. I think - maybe they knew more than the bluenoses.
we wouldn't even be having this discussion if attorney generals and prosecutors didn't squeeze every bit of publicity they can out of any case that is even mildly salacious since it gets them free airtime for their next re-election campaign. Kinda like watching SVU...but it's on the six and eleven o'clock news.
But hey...what better way to suspend due process and the Constitution by proclaiming first that it's "all for the best interest of the child?"
Elliot's crime: When he was 19, he had sex with his girlfriend, who was three weeks shy of 16, the age of consent in Maine.
Bullshit. He had to go and do something for the little bitch to run her mouth. How did they find out or prove it?
All of my friends growing up fucked younger girls... who doesn't? If you're 21 and you fuck a girl that is 16, it's completely normal... None of them went to jail...
There's gotta be more to this than just being with young girls
Likely as not, her daddy found out and hit the ceiling.
I can see breaking justice into criminal vs. military law since one is a personal action and the other absolves the person from state-sanctioned mayhem, but making sexual or terrorist criminals into yet further new branches with their own distinct rules is just 'breaking the peace into pieces' to paraphrase the 13th C Icelander who kept that country from tearing itself to pieces in a religious war.
This will lead to no good.
This country is so fucked -- God save the Republic
I agree that not all S.O.'s are the same, but you absolutely lost me on "Looking vs. Touching." Child porn cannot involve consent, and watching a child be raped is collusion with the rapist. If the viewer is a grown victim, visualizing himself as the child, he can continue to do so in his own mind, without being a link in the chain of creating new victims. I also question the method behind the low recidivism stats, but I'm too furious now to talk numbers. I'll never be back to this site if I can help it. Thanks for the read.
"Child porn cannot involve consent, and watching a child be raped is collusion with the rapist."
What you have to realize is that (a) "child porn" doesn't always involve children by any rational definition of the word, (b) also doesn't always involve individuals who have not willingly and in an informed manner, consented, (c) also doesn't always involve anyone other than the subject of the image, who again may not be, in any reasonable sense of the word, either a child or non-consenting.
To steamroller every image of a naked person under some age line into the same bucket of senseless hate is to act the idiot.
All that being said, what is your opinion of laws against actual non-consensual child porn.
Non-consensual sex imposed on anyone -- with or without photos or videos of the event(s) -- should result in some form of reasonable punishment for the perpetrator, and this should be the case regardless if the victim is a child, or not. I would like to see a grown person protected by such law no less than I would a child. Physical injuries should add additional criminal charges. Appropriate laws already exist to address the latter.
There are two key types of harm incorporated in forcing a sexual performance; by far the most important one is the forcing itself, the criminal bending of another's body to illegitimate ends, along with any concomitant physical injury; the other varies, depending on the mindset of the victim and whether the resulting records are distributed: the degree of public exposure of the victim. In some cases, existing legal mechanisms actually create the exposure, which I think should be forbidden, as should any rhetoric directed at the victim telling them they are "ruined", etc.
My opinion of most laws of this nature is that they should exist, but are very poorly formulated and in many cases define a legal climate of reaction that exacerbates the situation rather than ameliorates it. Rehabilitation is called for, not ostracism to the point where people end up living under bridges, unemployable and with no hope.
In particular, any law that uses age as a line in the sand to invalidate a participant's proffered consent is badly formulated law, certain to do great harm that otherwise would not have occurred at all. Consent is a matter of capacity; capacity can be reasonably determined, rather than arbitrarily legislated -- and it should be, because when it isn't, innocent people are ensnared by the legal system, often doing significant damage to their life, family, etc.
With regard to those laws that retroactively inflict anything at all post-sentencing, these laws are constitutionally forbidden as they are by definition ex post facto, and they do not deserve to exist; they are an outright violation of the oath of office by both congress and the judiciary. I am in complete agreement with the intent of the constitution to forbid this type of second-guessing by the legal system.
I have no confidence at all that offender registries serve enough of a useful purpose to offset the harm they do.
I am also strongly in favor of the idea that once a criminal's sentence has been served, they should be free to attempt to re-integrate with society, records sealed -- said records only being re-opened should they come in contact with the legal system again.
In short, creating a permanent unemployable class seems to me to quite obviously be a fertile breeding ground for both great resentment and future criminal activity -- I think it is both self-destructive for society, and comprises actions against the public interest on the part of lawmakers.
Any questions?
Over 9000 internets to you, sir.
Some people get arrested for "child porn" when they take pictures of their 16 or 17-year old girlfriends (legal to have sex with!). What about them?
You said:
"Registration only rarely leads to murder, but it routinely ruins relationships, triggers ostracism and harassment, and impedes education and employment."
Which is somewhat true, but murder, beatings and vigilantism happen a lot.
See the following links for more info:
I don't approve of vigilanteism in any form, and I personally believe the registries are ineffective anyway -- it's not the offender you know who's the problem, it's the one you DON'T know who's a real danger -- but I don't like the notion that we should prioritize the overall well-being of the offender over the safety of the community.
We need better sentencing and we need better tracking and follow-up for these offenders. Until then, the registries are one tool that may prevent further violation of children.
Also, everyone gets all het up about this stuff in theory, but if their own child was raped by a repeat-offender the communtiy WASN'T warned about, they'd be up in arms, too.
I agree. I would not oppose a registry that was accessible only to police, combined with community notification as to the specifics of the case, in cases where a person has been found guilty of *forcible* rape of a child.
In any other case, the likelihood of the registry being abusive is greater than the likelihood of the offender being abusive.
"it's not the offender you know who's the problem, it's the one you DON'T know who's a real danger"
Sure you got that right? 90% of all new sex offenses are committed by someone you know and trust personally. Not by someone on the registry.
There HAS to be some age limit.
Sorry, but there just HAS to be one. Otherwise, a conversation like this could take place:
"Say, Jim, your daughter sure is cute. What grade is she in?"
"Just started kindergarten."
"Cool. Mind if I fuck her?"
"If she says yes, sure. Lemme know how that turns out."
No. An age limit is a very harmful metric. It should be replaced, rather than thoughtlessly eliminated, and what it should be replaced *by* is a reasonable test for the ability to consent that incorporates the obvious aspects of physical maturity as well as the details, knowledge-wise, that one should understand before involving one's self in such activity.
Such a test would, without any doubt and quite easily, remove actual children from any possibility of providing consent, because the issues involved are considerably over their heads; likewise very young teenagers would almost never be able to surpass such a barrier.
The end result is in fact that actual children cannot give consent: but that truly informed, consenting individuals are not penalized for legitimate acts they knowingly consented to participate in.
In addition, this extends legal protection to older people who have, for whatever reason, not developed the capacity to offer informed consent.
I would, frankly, like to see something on the order of a legal token of competence; there are issues there, but I am wholly confident that they would be altogether less troublesome than the huge direct harm being done by the current use of age of consent in law.
This is a very well written article. Speaking of Foley, he stated he should not have been arrested on the Hannity show.
An article in 1996, which I was granted permission to post on my website, chasllenges Kanka's claim she had no idea there was a sex offender living close to her:
PS -- fitting name for the article, naming it for the extremist vigilante group that helped propagate even more fear.
The biggest problem is the treating of all "sex offenders" the same. Not only does it mean low risk offenders get a far harsher treatment, it means that the very dangerous individuals get to hide among the growing number of non-violent people being added to the list.
A man who abducts and rapes a 7 year old, a female teacher who has sex with her teenage students, a man who abuses his 11 year old step-daughter, and a 20-something who has sex with a teenager all did what they did for completely different reasons, and as such, pose very different risks to the community later on.
This is my problem with the recidivism rates that are thrown around. sure, on average, the whole spectrum of sex offenders don't re-offend as much as other criminals, but within that spectrum, I'm sure the range is a very wide one.
And that's where these laws fall short. Yes, there should be an age of consent, and yes, violators should be charged. But every case should be judged on its own merits, and registration or restriction on where someone can go or live should be decided by the court. Unfortunately, they're not given that power. Instead, the legislature has sidestepped due process and claimed the power to add punishment to an entire group of people (and let's be honest, it is punishment, despite what they try to claim when challenged), with the ability to change things on a whim and add new punishment to people who were previously convicted without any kind of hearing. And it's all A-OKAY because we're protecting the children.
We have a perfectly good system in place already. If a court looks at all the facts and decides that someone is a danger, they should go to prison for a long time. If we want to let them out but keep an eye on them, there's this handy thing called "parole". Sure, Bill O'reily has the public convinced that every judge is a dopey liberal ready to give every child molester he meets a medal instead of sentence, but the shocker cases are rare and those judges tend not to last very long on the bench when they pull that kind of crap.
To me, these laws are just another power grab by our government, and once they have people convinced that "Well, that's within the government's power to do" they'll take some more.
I'm not going to read all the comments, so I don't know if this has been pointed out already, but in some jurisdictions, if a minor takes a nude pic of themselves and sends it to someone, that minor can be arrested for producing and distributing child porn.
thank you for this piece of investigative reporting jacob sullum. as i write this a friend of mine is serving a 7.5 yr prison term for the taboo of possessing child porn. if i know anything at all, it is that he does not deserve to be in prison...
Jacob, you have been found to be Unmutual and Disharmonious. You will now be sent for Social Conversion.
But don't worry, once we have decided that you are cured, you will be allowed to return to society. However, since your offense involves computers, you will not be permitted to live within 2000 feet of electricity.
Since your mind and body work on electricity, we will thus have to kill you. But once this has been done, you will quickly be released.
Jacob, you have been found to be Unmutual and Disharmonious. You will now be sent for Social Conversion.
But don't worry, once we have decided that you are cured, you will be allowed to return to society. However, since your offense involves computers, you will not be permitted to live within 2000 feet of electricity.
Since your mind and body work on electricity, we will thus have to kill you. But once this has been done, you will quickly be released.
"included self-report data (drawn from treatment sessions and polygraph examinations),"
Polygraph examinations are useless.
We can only look at the data after we throw those out.
is good
thank u
thank u
OK this is a way too harsh sentence but Reason dropped the ball. The main argument against child porn is that people who pay for it or contribute to the producers' ad revenue contribute to a market for it and that leads to more child being molested for profit.
I know someone who has to register as a sex offender. When he was 22, he was drinking at a party, had sex with a 17 year old who said she was 18. He admits what he did was wrong and regrets what happened. He is now married and has 3 children of his own. Most people don't even know he is a sex offender. It is sad when people find out they automatically assume sex offender = child molester. It is hard for him to find a job that actually helps suport his family. It is hard to find a decent place to live. His family is left without the option of many state benefits, that would help his family.
Again, he knows what he did was wrong and he just wants to move on with his life. However, it is almost impossible. When someone is convicted of a sex crime, they have to be evaulated. They are labeled level 1 - 4, with 4 being the worst. My friend is classified as a level 1. Even though he is consider very unlikely to commit another sex crime, he will always have the sex offender.
In our state, 15 years after the crime was committed, he will no longer have to register. That doesn't drop the sex offender title tho. He will never pass a ground check. He will always have numerous restrictions, many that effect his family as well. I know I might be a little biased, but I feel that is completely unfair. He served his time, did his probation, and has continued to register when he is suppose to. He will always be the same thing as someone who raped and kill a five year old.
I feel there needs to be broader group than just "sex offender." I also feel that each person should be looked at case by case. I don't see why some who urinates in public needs to register as a sex offender at all. I think the sex offenders laws need to be closely examined and revised.
*I know there are more than likely a lot of error in this, but I'm on a phone and don't really want to take the time to edit everything. It has already took a bit of time to type what I had to say.*
Is there a method to our madness?
The whole idea of sex offender registries is a terrible one. There is no evidence they make anyone safer. They prevent people from moving on with their lives after they have served their sentence. They are filled with people who pose no danger to anyone else. But because these laws are named after children who were victims of terrible crimes, no legislator has the spine to even ask questions.