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The “Sex Offender” Regime is Cruel and Unusual Punishment

If it’s true that all seven of the football players arrested for hazing in the Sayreville, New Jersey, War Memorial High School locker room are students of color, that is one more reason not to prosecute them as sexual felons.

I don’t mean not to prosecute them in adult court. I mean not to prosecute them at all.

If they’re guilty, they should be disciplined by the school, kicked off the Bombers team, and held accountable to their victims by making amends in words and deeds.

But the punishment the state will mete out far outweighs the transgression. For kids who are 15 to 17 years old, it will be life crushing.

Yes, more life-crushing even than being punched, kicked, groped, or subject to an unwanted finger inching into your anus.

The state has charged the boys, variously, with aggravated sexual assault, aggravated criminal sexual contact, conspiracy to commit aggravated sexual contact, criminal restraint, and hazing, involving what the New York Times called “the sexual penetration of one of the juvenile victims.”

The juvenile victim in question describes it as the pressing of a digit or digits against the shallow dent between his clothed buttocks—unpleasant, but hardly the traumatic experience the law, and the press, assume it to be. The other sexual aggressions appear to amount to grabbing of butts and genitals.

Nonconsensual penetration of any orifice constitutes aggravated sexual assault under New Jersey law — in fact, “the depth of insertion [is not] relevant as to the question of commission of the crime.” That’s a first-degree felony, carrying a sentence of 25 years to life.

But even if the boys would serve less time, in adult prison or juvenile detention, or no time at all under a plea deal, a conviction almost definitely will put them on the sex offender registry. New Jersey’s minimum period of registration is 15 years. That 15 years also amounts to a life sentence.

All former felons suffer thousands of state or federally imposed collateral consequences of conviction—from the inability to get a car salesman’s license to permanent denial of the right to vote—condemning them to poverty and social alienation.

But amid the U.S.’s harsh penalties and post-incarceration sanctions, sex offender registry, community notification, and related restrictions—collectively known as Megan’s Laws—stand out for their harshness. Registered offenders must continually apprise the state of their addresses, school enrollment, or jobs. Localities restrict where they can live or drive or walk. Parole officers may enter their homes at will. They cannot join the military. They are ineligible for college loans. They may not work with children or youth, even if their crimes had nothing to do with children or youth. In many cases, they may not live with their own children.

New bills in the New Jersey legislature would require registered offenders to get HIV tests and pay for the GPS devise that tracks them night and day.  In the state that gave us the original Megan’s Law, sex offenders are prohibited from giving out candy on Halloween. The lawmakers would now like to keep them from working on ice cream trucks as well.

Shopping malls and housing projects bar them. Churches close their doors.

Sex offenders are harassed, their homes vandalized. Not a few have been murdered. The public registry practically invites it. South Carolina skinheads who recently murdered a sex offender and his wife got his name and address off the Internet registry.

There are 785,000 Americans on the sex offender registries, all but banished from society. These people may have committed a vicious rape at gunpoint or urinated on a tree. Or chatted online with a federal agent masquerading as a teenage girl.

Or pressed a finger into a clothed anus.

Now we find that a disproportionate number of the people on the registries are also African-American. This is surprising only because the popular image of the sexual “predator” is a “pedophile,” and the pedophile is white.

In fact, whites represent two-thirds of registered offenders—the unique criminal category in which whites show up in proportion to their demographics in the general population. But on the public registries, “blacks appear to be over-represented,” according to an ongoing analysis by University of Washington criminologist Alissa Ackerman and colleagues of over 445,000 sex offenders on public registries in 2010.

Nationally, African-Americans comprised 22 percent of the Ackerman sample, compared with only 13 percent of the U.S. population. Among the states with the greatest mismatch was New Jersey.

Ten years ago, Drexel University law professor Daniel M. Filler also found that “African-Americans are grossly overrepresented on [community] notification rolls. In some states an African-American person is over 16 times more likely to appear on a notification website than a white person.” Overall, a black person’s odds of being subject to notification requirements ranged from 1.35 to 14.4 times those of a white person’s, with a median of 1.91 times, according to Filler.

In other words, the corrections agency psychologists and police deciding who is so sexually dangerous that his presence must be announced to the whole neighborhood, tend to think of black men as more dangerous than white.

The Sayreville high school administrators seem to think the same. The Bombers, who surely did not start hazing new players last month or even last year, are 70 to 80 percent white.

Megan’s Laws were supposed to protect children. But two decades of research show they don’t improve anyone’s safety, least of all children’s.  In fact, it may be minors themselves who are harmed most by the laws put in place to safeguard them.

The age of the greatest number of people involved in the criminal justice system for sex offenses is 14. Thank age-of-consent laws for that. Because the laws deem minors categorically incapable of consenting to sex, any sexual contact with a minor is considered an assault. Indeed, if the victim is a minor, sexual assault becomes “aggravated” sexual assault.  Aggravated does not mean more sadistic or lengthy. It can just mean the “victim” of a touch or chat room conversation was 13.

Fourteen is also the age at which the federal government requires committers of certain sex crimes to be listed on the Internet registries.

And in a nation already overflowing with prisoners both juvenile and adult, the vast majority of them black and brown, do we need to lock up more black and brown kids?

In its 2011 report “Raised on the Registry,” Human Rights Watch detailed the severe and lifelong harms of putting youth on sex offender registries, from chronic unemployment and homelessness to depression and suicide. HRW and other human rights advocates have condemned the incarceration and registration of minors as violations of their human rights.

It’s nasty stuff, what goes on in boys’ locker rooms, dorms, and frat houses. Bigger boys humiliate, beat, and grope smaller, weaker boys.

Masculine rites of passage are not pretty in general. For millennia older males have inflicted torture on younger males to turn them from boys to men, from sissy to macho. Circumcision without anesthesia, flagellation, hanging by hooks through the skin of the chest and shoulders—all had to be endured without flinching or crying. But this for-your-own-good torment is not an artifact of the preindustrial past. If you’re interested in cruel initiations into the higher ranks of manhood, read the memoir of any Englishman who went to a boys’ prep school.

Is anyone really shocked that the Bombers do what they do? Football, after all, is no sport for sissies.

As a feminist, I’m not happy about the equation of masculinity with sexually tinged sadism or the stoicism to withstand it. But answering personal violence with state-sanctioned violence won’t make anyone any less violent.

For kids, it’s just as likely to make them angrier, less empathetic, and stripped of hope.

The sex offender regime is cruel and unusual punishment, excessive even for people who have committed heinous crimes. For these teenagers, whose “sex crimes” were to grab some ass and maybe stick a finger up that ass, it is a massively disproportionate penalty – a life sentence, before their adult lives have begun.

JUDITH LEVINE is the author of Harmful to MinorsMy Enemy, My Love, and, most recently, Not Buying It: My Year Without Shopping. She can be reached at Judith@judithlevine.com

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