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21st Century Public Shaming

On February 8th, Pres. Obama signed the “International Megan’s Law to Prevent Demand for Child Sex Trafficking” (H.R. 515), but made no formal public statement to go along with the signing.

The White House issued a press release accompanying the signing of the new law arguing that it accomplishes two goals.  First, it empowers the Department of Homeland Security’s “Angel Watch Center” and the Department of Justice’s “National Sex Offender Targeting Center” to monitor the international travel of registered sex offenders.  Second, it requires the Department of State to include a unique identifier – the 21st century scarlet “A” — on passports issued to registered sex offenders.

Some are calling it “the international Scarlet Letter law,” recalling Nathaniel Hawthorne’s 1850 classic tale.  In the novel, the Massachusetts Puritans of the 1640s force a local woman, Hester Prynne, to wear a scarlet “A” on her dress, thus publicly displaying her shame for having engaged in adultery (with the local pastor) and having an out-of-wedlock child.

The International Megan’s Law is the first law in U.S. history in which a special symbol will be placed on a citizen’s form of personal identification, a passport, to denote that the individual was convicted of a sex crime.  Nearly four centuries after the witch trials, in which women were hung for having sex with the devil, those in authority continue to publicly shame people convicted of engaging in unacceptable sexual practices.

* * *

The original “Megan’s Law” was named for Megan Kanka, a 7-year-old girl who was sexually assaulted and murdered in 1994.  She was abused and killed by a young man who lived across the street from the family in Hamilton Township, NJ; he had been convicted in two prior cases of child molestation and spent six years in prison — and nobody in the neighborhood knew of his past.

The New Jersey legislature hurriedly passed the law in 1994 and, in 1996, Pres. Clinton signed a federal version, requiring all states to warn the public of sex offenders or lose federal funding.  Today, all 50 states and the District of Columbia enforce a version of the law.

Rep. Chris Smith (R-NJ), the Congressmen from Megan’s district, promoted the original law as well as the international version.  Under the original law, state governments were required to notify communities when a convicted sex sinsexsuboffender moved into a neighborhood.  The new version extends notification to foreign countries by monitoring – and sometimes preventing — the international travel of a convicted sex offender.  It also requests foreign countries report if any of their convicted sex offenders travel to the U.S.  A 2010 Government Accountability Office (GAO) report found that in fiscal year 2008 at least 4,500 registered sex offenders received a U.S. passport.

Sex offender registration preceded Megan’s Law.  Karne Newburn, in a detailed legal analysis, “The Prospect of an International Sex Offender Registry,” carefully lays out the history of such regulation.  She points out that the same year New Jersey passed the original Megan’s law, 1994, the U.S. Congress passed a law named after Jacob Wetterling, an 11-year-old abducted in St. Joseph, MN, that called for states to voluntarily register convicted sex offenders.

In ’96, the Congress enacted the “Pam Lychner Sexual Offender Tracking and Identification Act” requiring the U.S. Attorney General to establish the National Sex Offender Registry and required lifetime registration for certain types of sex offenders.  In ‘98, it extended the legislation to include sexually violent offenders; in 2000, it passed the “Campus Sex Crimes Prevention Act”; and, in 2006, it passed the “Adam Walsh Act” that increased the number of specified sex-crime offenses required for registration.

Newburn details what is involved in “registration.”  The convicted offender “must provide their names, social security numbers, the name and address of their employers, the name and address of places where they attend school, and the license plate number and description of vehicles they own or operate.”  The offender’s criminal record is also made public, including the dates of any prior arrests, convictions or outstanding warrants as well as parole, probation and supervisory release status.  The registration includes a physical description, a current photograph, set of fingerprints, palm prints and a DNA sample.

* * *

In 2014, there were 796,598 people on the national sex offender registry.  Unfortunately, while the popular media promotes the image of an isolated male sex predictor ready to strike everywhere at anytime, most sex offenses against children are incestuous acts that take place in a child-care setting, too often the home.

Civil liberties advocates have raised serious reservations about the new law.

Human Rights Watch argues that U.S. “registration laws are overbroad in scope and very long in duration.”  Chrysanthi Leon, a professor of gender studies at the University of Delaware, argues that registrants are unlikely to commit new sex crimes.  More so, she warns, such monitoring could harm members of family who will be blocked from travel.

David Post, writing in The Washington Post, took offense at the new legal designation comparing it to the Nazi use of “yellow star” identifying Jews.  He sternly insists that this is the first time in U.S. history that a special designation will appear on a citizen’s passports.  The definition of a sex offender includes anyone previously convicted, at any point in his/her life, of a sex offense.

Janice Bellucci, a civil rights attorney and president of the advocacy group, California Reform Sex Offender Laws, rhetorically argued, “Who is going to have a unique identifier added to their passport next? Is it going to be Muslims? Is it going to be gays?”  The group filed a lawsuit in the U.S. District Court in San Francisco challenging the new law.

The true number of people trafficked in the sex trade, especially children and young girls, is difficult to determine.  In a 2015 assessment of sex trafficking, “Sex Trafficking of Children in the United States,” the Congressional Research Service (CRS) reported that “the exact number of child victims of sex trafficking in the United States is unknown because of challenges in defining the population and varying methodologies used to arrive at estimates.”

In 2012, David Finkelhor and Lisa Jones, with the University of New Hampshire’s Crimes Against Children Research Center, released an influential study, “Have Sexual Abuse and Physical Abuse Declined Since the 1990s?,” noted: “There was a 56% decline in physical abuse and a 62% decline in sexual abuse from 1992 to 2010.”

In 2009, Finkelhor, Richard Ormrod and Mark Chaffin found, in a Justice Department study, “Juveniles Who Commit Sex Offenses Against Minors,” that more than one-quarter (25.8 percent) of all sex offenders and more than one-third (35.6 percent) of sex offenders against juvenile victims were other juveniles; most of these offenders (93%) were boys between 12 and 14 years of age.  These youths are likely registered as sex offenders and swept up by the new law.

Unfortunately, child sexual abuse is widespread.  According to one study, in the U.S., 1 in 5 girls and 1 in 20 boys is a victim of child sexual abuse.  Some self-reporting studies claim that 20 percent of adult females and 5-10 percent of adult males recall a childhood sexual assault or sexual abuse incident.

The U.S. has come a long way from the Puritan world depicted by Hawthorne in The Scarlet Letter.  Four centuries ago, violation of the social order was conceived of as a “sin,” a moral failing; today, a violation is considered a “crime,” a civil offense.  Violations include rape, pedophilia, child porn, sex trafficking, infecting with an STD/AIDS and lust murder.  Today’s moral order is based on a belief in the equality of each participant, no matter which gender, but whether they are rational (i.e., capable of saying No!) and age-appropriate.

Today, those who violate mutual consent are considered immoral, pathological or criminal.  And the worst — the most socially stigmatized segment of those who violate sexual consent — is the man (or, far less often, woman) who perpetrates a child sex crime.  These crimes include harming the young person through sexual abuse, prostitution, pornography and lust murder.

The International Megan’s Law, like the original Megan’s Law, is not an act of legal punishment.  While the Eighth Amendment bans cruel and unusual punishment, public shaming has deep roots in the American legal system and, according to a 2015 report in Prison Legal News, seems to on the increase.  Public shaming is form of dehumanization, of stigmatizing the offender with a scarlet “A” or “yellow star” or passport symbol.  The ostensible goal is to prevent the offender from committing another sex crime.  However, it’s unclear how effective such shaming is in terms of 21st century law enforcement and moral values.

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David Rosen is the author of Sex, Sin & Subversion:  The Transformation of 1950s New York’s Forbidden into America’s New Normal (Skyhorse, 2015).  He can be reached at drosennyc@verizon.net; check out www.DavidRosenWrites.com.

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