Sex Crimes and the Constitution

by Alexander Cockburn

The hoofprints of Lucifer are everywhere. And since this is America, eternally at war with the darker forces, the foremost Enemy Within is sex, no quarter given. Here are some bulletins from the battlefront, drawn from a smart essay on “Sex & Empire” in the March issue of The Guide, a Boston-based monthly travel magazine, whose features and editorials have “about the best gay sex politics around”, according to Bill Dobbs of Queerwatch, whom CounterPunch takes as its advisor in these matters.

In February 2000, 18-year old Matthew Limon had oral sex with a 14-year old male schoolmate. A Kansas court sentenced him to 17 years in prison, a punishment upheld by a Federal court in February.

Last July, Ohio sentenced 22-year-old Brian Dalton to seven years in prison because of sex fantasies he wrote in his diary. A woman teacher in Arizona up on trial last month for a relationship with a 17-year-old boy faces 100 years in prison.

Apropos the triumph of identity politics across the last thirty years Bill Andriette, the author of “Sex & Empire”, remarks wittily that “In America, your clout as identity group depends how much of an enhanced sentence someone gets for dissing you” and then observes that “The same PR machinery that produces all these feel-good identities naturally segues into manufacturing demonic ones? indeed, creates a demand for them. The ascription of demonic sexual identities onto people helps drive repression, from attacks on Internet freedom to sex-predator laws. Identity politics works gear-in-gear with a fetishization of children, because the young represent one class of persons free of identity, the last stand of unbranded humanity, precious and rare as virgin prairie.”

This brings us into an Olympian quadruple axel of evil: sexually violent predators (familiarly known as SVPs) preying on minors of the same sex. There’s no quarrelling between prosecutor and judge, jury and governor, Supreme Court and shrinks. Lock’em up and throw away the key.

I went to a Bar Mitzvah in Berkeley the other day, and after listening to passages from the Torah transmitting Yahweh’s extremely rigorous prescriptions for his temple, right down to the use of acacia wood and dolphin skins, listened to Marita Mayer, an attorney in the public defender’s office in Contra Costa county, describe the truly harrowing business of trying to save her clients-SVPs–from indeterminate confinement in Atascadero, the state’s prime psychiatric bin within its prison system.

Among Mayer’s clients are men who pleaded guilty to sex crimes in the mid-1980s, mostly rape of an adult woman, getting a fixed term of anywhere from ten to 15 years. In the good old days, if you worked and behaved yourself, you’d be up for parole after serving half the sentence.

In California, as in many other states, SVP laws kicked in the mid 1990s, crest of the repressive wave by hysteria over child sex abuse and crime generally: mandatory minimum sentences, reduction or elimination of statutes of limitation, erosion of the right to confront witnesses, community notification of released sex offenders, surgical and chemical castration, prohibition of mere possession of certain printed materials, this last an indignity previously only accorded atomic energy secrets.

So California passes its SVP law in January of 1996, decreeing that those falling into the category of SVP have a sickness that requires treatment and cannot be freed, until a jury agrees unanimously that they are no longer a danger to the community. (The adjudicators vary from state to state. Sometimes it’s a jury, or merely a majority of jurors, sometimes a judge, sometimes a panel, sometimes an (unlicensed) “multidisciplinary team”.

Mayer’s clients, serving out their years in Pelican Bay or Vacaville or San Quentin, counting the months down to parole date, suddenly find themselves back to jail in Contra Costa county, told they’ve got a mental disorder and can’t be released till a jury decides they’re no danger to the community. Off to Atascadero they go for a two-year term, at the end of which they get a hearing, and almost always another two-year term.

“Many of them refuse treatment,” Mayer says. “They refuse to sign a piece of paper saying they have a mental disease.” Of course they do. Why sign a document saying that for all practical purposes you may well be beyond reform or redemption, that you are Evil by nature, not just a guy who did something bad and paid the penalty?

It’s the AA model of boozing as sin, having to say you are an alcoholic and will always be in that condition, one lurch away from perdition. Soon everything begins to hinge on someone’s assessment of your state of mind, your future intentions. As with the damnable liberal obsession with hate crime laws, it’s a nosedive into the category of “thought crimes.”

There the SVPs sit in Astasdcadero surrounded by psych techs eager to test all sort of statistical and behavioural models, phallometric devices designed to assist in the persuasion of judge and jury that yes, the prisoner has a more than 50 per cent likelihood of exercising his criminal sexual impulses, should he be released.

Thus, by the circuitous route of “civil commitment” (confining persons deemed to be a danger to themselves or others) we have ended up with a situation that, from the constitutional point of view, is indeed absolutely Evil: held in preventive detention or being locked up twice for the same crime.

“It’s using psychiatry, like religion, to put people away”, Mayer concludes. “Why not hire an astrologer a goat-entrail reader to predict what the person might do? Why not the same for robbers as for rapists? What’s happening is double jeopardy. If we don’t watch it, it will come back to haunt us. People don’t care about child rapists, but the constitution is about protections. I think it’s shredding the constitution. I get into trouble because they say I’m into jury nullification and that’s not allowed.

“Most of my clients tell me it’s worse in Atascadero than in the regular prisons. How do I feel about these guys? When I talk to my clients I don’t presume to think what they’ll do in future. I believe in redemption. I don’t look at them as sexually violent predators, I see them as sad sacks, they have to register. They could be hounded from county to county. Even for a tiny crime they’ll be put away. Their lives are in ruin I pity them.”

But not goat entrails, surely. The animal rights crowd would never stand for it.

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