Sex-Crime & Punishment

At this year’s Sundance Film Festival, Nate Parker’s new feature film, A Birth of a Nation, about the Nat Turner slave rebellion of 1831, won both the audience and jury awards for dramatic feature film.  According to Variety, Fox Searchlight scooped it up for $17.5 million.  At the time, it was expected to outperform Ryan Coogler’s Fruitvale Station which won both awards at Sundance in 2013 and went on to generate $17.4 million in theatrical release – an impressive performance for an indie film.  Today, A Birth of a Nation’s potential performance and Parker’s long-term career are in doubt.

Some 17 years earlier Parker, while a student at Penn State, engaged in a questionable sexual relation with a female student.  According to press reports, he, along with another African-American student, were accused of raping a white woman.  At trial, he insisted that the sex was consensual and a jury cleared him of all charges; the other male student was found guilty of a lesser charge and served prison time before the conviction was overturned.

Two decades ago, Parker engaged in a questionable sexual activity with a female student.  In a classic he-said/she-said standoff, he was acquitted of alleged rape and left Penn for the University of Oklahoma; the female victim dropped out, suffered emotionally throughout the rest of her life and committed suicide four years ago.

Over the last two decades, forced, nonconsensual sex has increasingly been acknowledged as rape, a crime, a violation of another person’s – mostly a woman’s – selfhood.  Violence against women, especially rape and sexual assault in college settings, has come out of the closet.  Even in absurdly adjudicated cases, rape is acknowledged as a crime.

Earlier this year, a Santa Clara, CA, county jury found Brock Turner, a male Stanford University student, guilty of forced sexual assault perpetrated against an unconscious woman outside a fraternity house.  The presiding judge, Superior Court Judge Aaron Persky, gave the convicted felon a lenient sentence – six months in a county jail rather than years in a state prison.  Turner was recently released from jail and is on probation at home in Ohio.

Judge Persky reportedly gave lighter sentences to middleclass, white males convicted of sex-related crimes.  In outrage, more than 1 million people signed a petition to recall Persky; the judge subsequently recused himself from another sex-crime case and requested to be reassigned to the civil division.  Nevertheless, Turner was arrested, charged and convicted of rape – and will be listed on the sex-offenders registry.  Rape was acknowledged as a crime.

Two decades ago, American’s sexual landscape, its moral order, was different.  A wink-and-a-nod morality covered up what was euphemistically dubbed “date rape.”  And colleges were hidden cesspools of sexual abuse.

Today, male hegemony is being contested, most evidently represented by Hillary Clinton’s run for the presidency.  For all the sexism of the 2016 campaign, especially voiced by the Trump forces and the establishment media, a woman has a significant chance of become America’s next president.

The current controversy surrounding Parker’s actions 17 years ago involves two very different issues: (i) at what point is Parker – or another “sexual criminal” – forgiven of his questionable action?; and (ii) no matter whether Parker was or was not a “sex criminal,” should one judge his movie in terms of what took place so many years ago?

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In the U.S., sexual violence is widespread and deeply disturbing.  Perhaps most troubling, most incidents of sexual violence – be it rape, sexual assault or intimate partner violence – is woefully underreported.  No one really knows how widespread sexual violence is in America.

Nevertheless, sexual violence is an all-American indulgence, mostly perpetuated by males against females and children/youths.  Two decades ago, an apparent wave of sexual violence – often against children — led to a series of Congressional legislation that initiated what is best conceived as “the war on sex crimes.”  Not unlike the war on drugs, war on cancer and war on terror, this war was equally overplayed and did little to address the problem it was ostensibly intended to defeat.

The war on sex crimes was launched in 1994 when Pres. Bill Clinton signed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act.  (The bill was named after an 11-year-old boy, Jacob Wetterling, from St. Joseph, MN, kidnapped in 1989 and whose remains were recently discovered.)  Two years later, Congress added the “Megan’s Law” section to the Wetterling Law that required sex offenders to register with local law enforcement officials and gave the public access to previously private sex-offender information, including the person’s name, photograph and address.  (The law was named after Megan Kanka, a 7-year-old raped and murder by her Hamilton Township, NJ, neighbor, Jesse Timmendequas, a known sex offender.)

In 2006, the Adam Walsh Child Protection and Safety Act further toughened the original Wetterling Law, including requiring those registered to periodically visit their local police and adhere to the residence restriction requirements.  (Adam Walsh was a 7-year-old boy abducted from a Hollywood, FL, department store in July 1981 and whose dead body was found two weeks later in a drainage canal.)

According to one group of experts, “the United States has the most draconian sex registration laws in the world.”  Today, some 750,000 people are on the registered sex offenders.

The Wetterling Law – along with the follow-up legislation – is based on two questionable premises.  First, sex offenders were believed to be likely to reoffend; in effect, once a sex offender, always a sex offender. Second, sex offenders, especially those targeting children and young people, were thought to be unknown strangers.  Both premises have been shown to be false.

With regard to the first assumption, researcher at the University in Florida found that the 75 percent of general public believes sex offenders will reoffend.  However, sex offenders have a far lower rate of recidivism than average convicted felons.  According to a recent U.S. government study, “the average sexual recidivism rate found was 13.7 percent and the average overall recidivism rate was 36.9 percent, based on an average followup period of 5 to 6 year.”


With regard to the second assumption, in 2015, the National Sexual Violence Resource Center estimated that rape was widespread.  It found that nine out of 10 (91%) people who have been raped or suffered sexual assault were women and in eight out of 10 cases of rape, the victim knew the assailant, often an intimate partner. This is also the case of rape committed among young people.  A 2014 Bureau of Justice Statistics report found that while rape and sexual assault was slightly higher among nonstudents (7.6 per 1,000) than for students (6.1 per 1,000), four-fifths (80%) of the victims, both student and nonstudent, knew the perpetrator.

Two additional questions about the sex-offender registry pose equally challenging concerns.  First, should children be on a “sex offender” registry?; and, second, how can someone ever get the registry?  Human Rights Watch (HRW) recently reported on the plight of Jacob C., an 11-year-old living in Michigan who was tried in juvenile court for touching, without penetrating, his sister’s genitals. Found guilty of one count of criminal sexual conduct,‪‪‪ Jacob was placed on Michigan’s sex offender registry and prevented by residency restriction laws from living near other children.

HRW warns, “the harm befalling youth sex offenders can be severe.”  It details some of the long-term consequences of being marked with the modern scarlet letters, “SO,” sex offender:

Youth sex offenders on the registry experience severe psychological harm. They are stigmatized, isolated, often depressed. Many consider suicide, and some succeed. They and their families have experienced harassment and physical violence. They are sometimes shot at, beaten, even murdered; many are repeatedly threatened with violence. Some young people have to post signs stating “sex offender lives here” in the windows of their homes; others have to carry drivers’ licenses with “sex offender” printed on them in bright orange capital letters.

Finally, how can a person who once committed a sex crime get off the registry?  It’s really difficulty.  In a detail analysis of the registry removal process, the Roberts Law Group notes: “Offenders do not become eligible to have their information removed until they have been on the registry for a minimum of 10 years. After this period of time, so long as the offender has not received another conviction for an offense requiring registration, the offender then may petition the superior court to have his or her registration terminated.”  All requested are not granted.

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In 1850, Nathaniel Hawthorne published his classic tale of Puritan morality, The Scarlet Letter.  In this famous story, Hester Prynne, a married woman, gives birth to an illegitimate child and refuses to name its father.  For this sin, she must endure the public shame of wearing a scarlet “A” denoting adulterer.

However, in Puritan communities of the 17th century like Boston and Salem, people sentenced for having committed adultery were branded with an “A” letter on their chest (men) or bosom (women).  Branding also marked other crimes.  The punishment of one man caught illegally minting money is illustrative of how serious it could get.  First, the tip of his ear was cut off, placed on his tongue before being reattached to his ear.  This was followed by the use of a hot iron to inscribe a letter brand denoting the crime on his forehead until he could say the words “God save the king.”  In colonial Williamsburg, the letter “T” for thief was branded on a person’s hand.

African-American slaves were regularly branded as a form of property identification and as an act of punishment.  While the face was the favorite site to mark punishment, the back, shoulder and abdomen were regularly branded.  Frederick Douglass, an escaped slave, described branding as follows:

“The process of branding was this — A person was tied to a post, and his back, or such other part as was to be branded, laid bare; the iron was then delivered red hot (sensation), and applied to the quivering flesh, imprinting upon it the name of the monster who claimed the slave.”

The sex-crime registry is a modern form of branding, of identifying the perpetrator of an immoral act.  It is a form of public shaming, a social means by which those who’ve been convicted of committing a sex-related crime can be easily identified and continually punished for their unacceptable behavior.

Over the last two decades, the nation’s sexual morality has profoundly changed.  Today’s new morality is founded on a simple premise: sex must be between consensual and age-appropriate people.  Everything else is a violation of the other person’s self-hood, whether rape, pedophilia, sex trafficking or lust murder.

The mainstreaming of the commercial sex industry that occurred over the last quarter-century engendered this new sexual morality.  Porn, sex toys, prostitution, strip clubs and other adult “consensual” sex practices became a $50 billion industry.  The integration of consensual sex into the market economy took place during an era in which AIDS was contained, the Christian culture war significantly restricted and same-sex marriage legalized by the Supreme Court; however under attack, abortion remains the law of the land.

These developments helped refashion the nation’s moral order.  In this process, much of the traditional moral fictions about sexual desire, especially involving illicit activities, were removed.  This helped further mark rape as a crime and, as with Roger Ailes’ ouster over accusations of sexual harassment, sexual abuse in the workplace.

Which bring the story back to Nate Parker and his new film, A Birth of a Nation.  With regard to the Parker incident, Jeannie Suk Gersen, a Harvard Law professor, observes:  “But we are left wondering about the justice of not letting people who are accused and convicted of a crime move on, let alone those who are accused and acquitted.”

Parker neither admitted to nor was convicted of rape, but seems to have recently acknowledged that the original sexual activities he was involved in 17 years ago were less than mutually consensual.  One can only wonder if his past will not only haunt his present and future, but also the fate of this film?

Some are not wondering.  Parker’s press conference at the upcoming Toronto festival was canceled, as was a screening of his acclaimed film by the American Film Institute (AFI).

Parker’s fate may be similar to the personal and professional fate that befell Woody Allen following his marriage to Soon-Yi Previn in 1997.  At that time, she was the 27-year-old adopted daughter of Mia Farrow and the composer André Previn.  Many felt that there was something illicit about Allen marrying the daughter of his former lover, Farrow.  In 2014, Dylan Farrow, also Farrow’s adopted daughter, accused Allen of sexually assaulting her when she was a child.  For years, many filmgoers, especially women, would not see an Allen movie.

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; check out