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The Sex Offender: the 21st Century Witch

by

At the end of May, the Republican-controlled House of Representatives passed H.R.1761, the “Protecting Against Child Exploitation Act of 2017.”  It is intended “to criminalize the knowing consent of the visual depiction, or live transmission, of a minor engaged in sexually explicit conduct.”  Going further, those convicted of such a practice would “be fined and imprisoned not less than 15 years nor more than 30 years, 25 years nor more than 50 if two or more prior offenses and would get 35 years to life, and 30 years to life if a death occurred.”  While broadly targeted at child pornography, it seeks to expand current legislation and make “sexting” — teens texting each other explicit images and words – a federal criminal offense.

The bill was pushed by Rep. Mike Johnson (R-LA) and was backed by the National Fraternal Order of Police and the National District Attorneys Association, among other conservative groups.  Johnson insisted, “The first responsibility of any just government is to defend the defenseless. In Romans 13, Scripture refers to the governing authorities as ‘God’s servants, agents of wrath to bring punishment on the wrongdoer.’ Among the most despicable criminals who deserve the full measure of our wrath are those who sexually abuse innocent children.”

The bill’s passage received little media attention. One report notes that two Republicans — Reps. Justin Amash (MI) and Thomas Massie (KY) – and 53 Democrats voted against it.  Rep. Sheila Jackson Lee (D-TX) warned, “While the bill is well intended, it is overbroad in scope and will punish the very people it indicates it is designed to protect: our children.”  Rep. Bobby Scott (D-VA) cautioned, “Under this law, teenagers who engage in consensual conduct and send photos of a sexual nature to their friends or even to each other may be prosecuted and the judge must sentence them to at least 15 years in prison.”

A week or so after the bill’s passage, on June 6th, Attorney General Jeff Sessions spoke in Atlanta, GA, before the National Law Enforcement Training on Child Exploitation gathering, noting, “It is hard for any of us to believe that child exploitation happens — but it does.”  He went to exclaim, “Almost everyone who works in law enforcement sees bad things. … But few confront evil as terrible as what you face every day.   You stand up to predators who think nothing of destroying the souls of children just to make a buck or fulfill their own twisted fantasies.”

He highlighted the successes of the Internet Crimes Against Children (ICAC), a Department of Justice agency established in 1998.  It consists of a network of 61 coordinated task forces representing “more than 4,500 federal, state, local, and tribal law enforcement and prosecutorial agencies that combat computer-enabled child exploitation.”  In 2016, it led to the arrest of 8,800 people; he singled out a campaign in Alabama and Georgia called “Operation Southern Impact” that led to the arrest of 29 suspects on charges of possession and distribution of child pornography; the seizure of 731 digital devices as evidence; and involved more than 70 federal, state, and local law enforcement agencies.  Over the last two decades, the agency was involved in the arrest of more than 73,000 people suspected of sexually exploiting children.

Sessions pointed an accusing finger at “the tech revolution” as the prime cause of the new sex crisis.  “It has given pedophiles new ways to find and exploit children,” he insisted.  Going further, he asserted, “Because of technology, no place is safe for our kids — not even our homes or schools.   Any child with access to a smartphone or tablet is vulnerable to predators.”  He added, “the proliferation of cheap cameras in phones and other devices has made it easier than ever for pedophiles to produce child pornography and share this filth with countless others.”

***

Americans have never been comfortable with sex.  During the half-century of 1647–1693, New England colonists were subject to a nearly inexhaustible list of sins that fell into two broad categories, sins of character and sins of the flesh. Among the former were pride, anger, envy, malice, lying, discontent, dissatisfaction and self-assertion. Among the latter were adultery, bestiality, fornication, incest, interracial relations, lust, masturbation, polygamy, seduction and sodomy as well as temptations like carnality, drunkenness and licentiousness.  Almost anything could be a punishable sin.

However, the gravest sin was being accused with witchcraft and over 200 people were so charged.  But the most shameful sin was being accused of engaging in the truly unholy deed of having sex with the Devil.  About 30 people, mostly elder women, were convicted of sexual congress with Satan — and executed.

What is a sexual offense?  Who is a sex offender?  The definition of each terms changes over time and seems to differ with every legal jurisdiction in the country.  The FBI’s definition is: “Sex offenses (except forcible rape, prostitution, and commercialized vice)—Offenses against chastity, common decency, morals, and the like.  Incest, indecent exposure, and statutory rape are included.  Attempts are included.”

In New York State, the definition is confusing.  “’Sex offender’ includes any person who is convicted of any of the offenses set forth in subdivision two or three of this section [Sec. §168-a. Definitions].  Convictions that result from or are connected with the same act, or result from offenses committed at the same time, shall be counted for the purpose of this article as one conviction.”  New York law lists between 30-40 sex-related crimes that require the convicted person to be identified under the state’s Sexual Offender Registration Act (SORA).

Broadly conceived, sex offences fall into four categories: (i) child molestation, sexual battery, penetration of the genital or anal region by a foreign object, rape orally, anally and vaginally; (ii) lewd conduct, lewd act with a child and indecent exposure; (iii) possession and distribution of child pornography, possession and distribution of obscene material; and (iv) prostitution, solicitation of prostitution, pimping and pandering.

Unfortunately for all-too-many identified on sex-offender registries, their “crime” is of a questionable nature.  Is urinating in public a form of indecent exposure?  Is mooning or exposure during a joy-ride a felonious offense?  Is the private viewing of a sexually “provocative” image of a girl/boy reputed to be 18 years old or younger a felony?  Is mutual, consensual sex between two age-appropriate young people a crime?  These questions, among others, are at the heart of the current criminal-justice debate regarding the incarceration of sex offenders and the value of sex-offender registries.

In the Reagan-era America of the 1980s, the U.S. took on two domestic wars – a war on drugs and a war on sex.  Both have been failures.  Politicians, law enforcement and people with good intentions, conservative and liberal, including otherwise “progressive” feminist and gay-rights advocates, agreed with the religious right that something had to be done with those who violated sexual consent.

Sensational, headline-grabbing sex crimes do occur, often involving a young person or a woman.  The media often exploit these stories, following the headline-grabbing maxim – if it bleeds, it leads.  These stories are often shocking: No one can image why someone would do something so horrendous.  Media hype has been successful; sex crimes — especially child rape, pedophilia, trafficking and abuse of female college students — have become a postmodern form of an old-time circus freak show.  Like military war-zone reporting fought somewhere else, the sex wars are being fought by everyone else.

Unknown to most Americans, sex crime rose between 2005-2014.  The Bureau of Justice Statistics’ National Criminal Victimization Survey found in 2014 (the last year available) that there were 284,350 reported rapes or sexual assaults of persons 12 years or older, up from 207,760 in ’05.  More than two-thirds (69%) of reported teen sexual assaults occurred in “the residence of the victim, the offender, or another individual.”  It notes that between 1992 to 2010 there was a 56 percent decline in physical abuse and a 62 percent decline in sexual abuse.

In additional to conventional criminal proceedings, sex offenders face harsh prison sentences.  Adding insult to injury, as of 2006, eight states — California, Florida, Georgia, Louisiana, Montana, Oregon, Texas, and Wisconsin — allowed chemical castration; Alabama is considering it.  More worrisome, some 5,000 individuals – often identified as Sexually Violent Predators (SVP) — are placed in indefinite detention with few legal rights of appeal.

Since the introduction of DNA testing and its use as evidence in criminal trials, thousands of innocent people have been exonerated, including for sex-related crimes.  The National Registry of Exonerations reports that 2,044 people have been freed from false imprisonment; between 1989-2012, 305 wrongful sex offender convictions were overturned.  The Innocents Database reports 4,603 exoneration U.S. cases that have taken place between 1989-2017.  The U.S. criminal justice system is a racket, one that punishes and stigmatizes the guilty along with the innocent – and it also generates big buck.

***

Who is a sex offender?  Where is the line drawn between the sexually acceptable and the immoral, let alone the illegal?  Is it a boundary not fixed, but a terrain of social struggle that shifts over time?

A “sex offense” is sometimes real, involving an innocent person being sexually – physically and psychologically — harmed by an offender.  Too often the victim is a loved-one or a young person.  Sometimes the offense is imaginary, the cyber fiction of an online experience, including “unacceptable” – if faked — pornography like rape and pedophile phantasies.  And sometimes it a misunderstanding or mix-message, a failure in communications that leaves one participant a grieved person.

Spurred by the Innocence Project and its successful efforts reversing unjust convictions of falsely-convicted people, including sex offenders, organizations have emerged across the country contesting specific aspects of criminal injustice, including regarding sex offenses.  One such group is Texas Voices for Reason and Justice.

Another group is Women Against Registry founded in 2011 by Vicki Henry of Arnold, MO., following the old adage, “grieve, then organize!”  She co-founded the group in response to the arrest and conviction of her then-21-year-old son.  In 2007, he was serving in the U.S. military, stationed in California and was arrested by Naval Criminal Investigative Service (NCIS) for possession and distribution of child pornography.

He was held in the brig for 9 days before permitted to communicate with his family, signed a confession and then held for another year-and-a-day before his court-martial where he took a 48-month plea deal.  Living in a SORNA — Sex Offender Registration and Notification Act – compliant state, he must register every 90-days for the rest of his life.

Henry seeks to counter the dominant public and legislative attitude which, she notes, is based on a questionable moral assumption: “we don’t care how much a sex offender suffers or how they are treated because of their offense; they are of no concern to us!”  She believes that women can “challenge, beat the pavement and demand that their family be treated as human beings with the same rights, protections and civil liberties as every other American.”

She is deeply troubled by sex-offender registries, arguing that that “the public registry gives a false sense of security to the small percentage of those who actually use it.”  Further, she notes that “the registry was designed to monitor the violent repeat rapist and molesters which is now a runaway train.”  It’s become a catch-all for any-and-all unacceptable sex practices, including among age-appropriate young people.

Since the days of the Puritans, those in authority have embraced a criminal justice system based on a belief in punitive retribution – those found guilt were to be punished harshly, sometimes executed.  Henry embraces a restorative justice approach, insisting, “If we truly want to protect children — and I know we do — then we have to get in front of the issue by funding and promoting child sexual-abuse prevention training programs such as ‘Stop It Now’ in schools, PTOs and organizations where children and teens are vulnerable.”  She adds, “Handling situations within the family are addressed there too.”

However, she is pessimistic as to how the Trump administration will treat sex offenders.  “The House’s passage of H.R. 1761 is outlandish and ill thought-out.”  Looking specifically at young people accused of a sex crime, she warns: “There is a myriad of studies that clearly indicate a young person’s brain is NOT fully developed until they are in their mid-twenties. The concept of ruining lives because you have that power is deplorable and irresponsible.”

Henry, along with many others, worries that things will get worse for sex offenders. “When you take into consideration the investment in the private prison industry by those of notable status in our society, it becomes apparent the poor and indigent will suffer at the expense of the rich and famous,” she warns.  “Regardless,” she will persist in her campaign, “we will continue to educate the public to dispel its misguided fear of sex-offender families. … When does redemption begin?”

***

The war on drugs has proven a failure.  In the three decades since first lady Nancy Reagan spoke the words “Just Say No” to launch the war on drugs, the drug crisis has only gotten worse.

The Centers for Disease Control and Prevention reports that, between 1999-2015, more than 183,000 have died from drug overdoses.  These deaths are related to so-called “natural,” “semi-synthetic” and “synthetic” opioids like morphine, oxycodone and methadone.  However, between 2010 and 2015, the percentage of fatal overdoses involving heroin tripled.  In 2010,3,036 (8%) of overdose-related deaths were due to heroin, but in 2015 the total jumped to 12,989 (24.3%) of all overdose-involved fatalities.

Since Mrs. Reagan days, drug users have shifted from poor, inner-city African-America “predators,” a term made notorious as “superpredators” by Hillary Clinton in 1996, to white Americans, often poor, rural and veterans.  The shift in the demographics of drug use took place as the cost of maintaining the prison-industry complex mounted.  In January 2017, the Prison Policy Initiative estimated annual cost of maintain the integrated public (i.e., local, state and federal) and private (e.g., Corrections Corp. and Geo Group) infrastructure of punitive retribution at $182 billion annually.

These factors led numerous state governments and the Obama administration to rethink mass incarceration, particularly the “crimes” committed by low-level drug offenders.  The rise in heroin and opioid additions and deaths among poor, rural and small-town whites has led to a change in criminal-justice prosecution and sentencing policies.  Until Donald Trump’s election, a rethinking of illegal drug use was underway; it was being reconceived as a medical problem, addiction, and less as a criminal offense.  AG Sessions has vowed to reverse these reformist efforts and return to the good-old-days of lock-um-up and throw-away-the-keys.

In this climate, the sex offender is a perfect target for moral – and political — outrage.  He (mostly) is someone, not unlike the old-woman witch of the Puritan days, who crossed a moral line and committed an unpardonable offense.  If he cannot be executed for his affront to the norms of civil and religious decency – hey, this is the 21st century – than at least he can be put in prison, listed on a sex-offender’s registry or placed in indefinite detention with few legal rights.

Once upon a time, priests and those in civil authority could point an accusing finger at a socially-unacceptable elderly woman and claim she was a witch, possessed by the Devil.  Today, there is an ever-growing number of competing – and often contradictory — theories to explain the causality or etiology of a sex-offender’s action.  These theories include: (i) evolutionary and biological/genetic attributes, (ii) cognitive, personality tendencies and learned behavior, (iii) preconditioning and (iv) a host of multi-causal factors.  One theory proposes that watching too much porn shrinks a person’s brain.  Prosecutors regularly draw upon such hypotheses to shame an accused sex offender.

For those convicted of a sex offense, there are a variety of treatment options available, both in prisons and community-based.  A 2008 survey found that 1,307 sex-offender treatment programs were operating in the 50 states and the District of Columbia.  Four-fifths (80%) were community-based and provided therapeutic services to more than 53,811 individuals who had committed sex crimes.  Often unacknowledged, the sex offender has the lowest rate of re-arrest, recidivism, among all those convicted of a major crime.

Like the war on drugs, the war on sex has proven a failure.  And, like the Trump regime’s effort to impose ever-more punitive law-enforcement measures on convicted drug users, one can expect the same – if not worse – treatment of sex offenders.  They have become 21st century witches.

David Rosen can be reached at drosennyc@verizon.net; check out www.DavidRosenWrites.com.

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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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