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Of Sex Abusers and Sex Offenders

Photo by Devon Buchanan | CC BY 2.0

The New York Times recently published a list of 25 men “accused of sexual misconduct” since the Harvey Weinstein revelations first came out in early October. The list is a who’s-who of “players” in the entertainment, political, media and corporate worlds.  Even scandalous stories about Bush-the-elder are finally coming out after decades of suppression.  In being outed, many of the male predators have lost their jobs or contracts, some of their marriages ended, high-priced defense lawyers have been retained and a few say they are seeking professional counseling.

Many of those identified as being or having been a sexual aggressor are being subject to public shaming.  For a while, their lives might be miserable, under a public magnifying glass as to how he could have done what he is “accused” of doing and, therefore, who really is this man?  However, for some, the price to be paid may be far harsher, including an arrest, trial and (if found guilty) jail as a sex offender.  Prosecutors in New York, Los Angeles and London are sharpening their legalistic claws as they seek criminal indictments against Weinstein.  Who will be the next player to fall?

While the domestic sex-assault scandal mounted, Pres. Donald Trump was safely tucked away on a diplomatic tour of Asia.  After 10 days of jet-hopping, pontificating, schmoozing and gobbling down mouthfuls of local cuisine, the distractor-in-chief is returning to the scene of the crime.  Remarkable, while he never misses a chance to proclaim something “fantastic” to capture media attention, whether at a live event, press conference, interview or Tweet, Trump has been noticeably restrained in statements, let alone condemnation, of those so far identified for sexual misconduct.  Trump is the master showman, a living spectacle of the three-card-Monti game of self-promotion, the slight-of-hand scam that effectively sucks the life out of critical political discourse.  When he refuses to comment might be more revealing than when he does.

Trump is returning to the U.S. at a sex-assault scandal is gaining force. Courageous testimonials by women once abused and – long overdue – aggressive media reporting has dragged sexual abusers out from the shadows into the public spotlight, upsetting the political and culture-industry status quo.  In addition, some two-dozen women have publicly declared that they were groped or otherwise sexually assaulted by the nation’s 45th president.  Summer Zervos, a former contestant on “The Apprentice,” is the latest and is suing Trump and the Trump campaign for emails and other documentation about his conduct.

Who could have expected that a campaign against misogyny (i.e., male sexual abuse) would emerge during Trump’s first year in office?  Trump’s return could be a perfect storm to focus public attention on male sexual assault of women that is rampant – and endemic! — in the U.S.  It is most vividly revealed in the current round of sex scandals drawing much media attention.  However, incidents involving the sex politics of the workplace, where male tyranny is formally structured in organizational practices, have yet been exposed.  Sadly, domestic violence is an all-to-common condition of family life.

Since the nation’s founding, sex scandals have served as morality tales to shame and/or punish the perpetrator.  They are rituals setting the boundaries of acceptable sexual practice.  During the colonial period, especially among Puritans, the “outing” of someone who committed an unacceptable sexual act often led to a religious-civil hearing and severe punishment.  Punishment often included a public admission in a church or town square, corporal punishment such as branding, whipping or hanging and social humiliation like that made famous by Nathaniel Hawthorne in his 1850 novel, The Scarlet Letter.

Centuries later, the nature of shaming rituals associated with sex scandals has changed. Corporal punishment has been replaced by the spectacle of nonstop media hounding.  Shaming has become a form of entertainment, meant to distract or fascinate the public – a 21st century gladiator sport with the camera replacing the lion.  Nevertheless, public shaming, especially directed toward political and cultural figures, has been a powerful force used to change the nation’s moral order and sexual culture.

The U.S. is a nation that believes in the power of the carrot, rewards, and the stick, punishment.  For sex offenders, shaming is one stick.  Incarceration is another.

***

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. The gravest sin was being accused of 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.  Such people were the worst sex offenders of their day and about 30 people, mostly elder women, were convicted of sexual congress with Satan — and executed.

As of January 2017, an estimated 265,000 (11%) of the nation’s 2.3 million prisoner population were sex offenders and being held, as one source put it, “under supervision of a corrections agencies.” The Bureau of Justice Statistics (BLS) reports that between 2005-2014 incidents of sex crimes (i.e., rapes or sexual assaults of persons 12 years or older) rose by 37 percent, to 284,350 from 207,760.  It also found that more than two-third (69%) of reported teen sexual assaults occurred in “the residence of the victim, the offender, or another individual.”  It is estimated that 861,000 convicted sex offenders — men, women and children (as young as 8 and 10 years of age in some states) — are listed on public sex-offender registries in effect in all U.S. states and territories.

On June 6, 2017, Attorney General Jeff Sessions spoke in Atlanta, GA, before the National Law Enforcement Training on Child Exploitation gathering and 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.”

A week before Sessions speech, the House passed the “Protecting Against Child Exploitation Act of 2017” (H.R. 1761).  The bill seeks “to criminalize the knowing consent of the visual depiction, or live transmission, of a minor engaged in sexually explicit conduct.”  Going further, anyone – no matter what age – convicted under H.R. 1761 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.

However, two weeks after Sessions’ speech, the Supreme Court ruled in Packingham vNorth Carolina (2017) that state statutes baring convicted sex offender from accessing online websites like Facebook, Amazon and WebMD violated the First Amendment.  A state statute made it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” The law assumed that ex-offenders were recidivists and would use online sites to gather “information about minors on the Internet” and make inappropriate or unlawful contact with them.

“To foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights,” Justice Anthony Kennedy wrote. “Even convicted criminals — and in some instances, especially convicted criminals — might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.”  All the other Justices agreed that the statute was not sufficiently “narrowly tailored” to serve that purpose.

Much of the confusion about sex-offender recidivism derives from an observation made by Justice Kennedy a decade-and-a-half ago, McKune v. Lile (2002).  “The rate of recidivism of untreated offenders has been estimated to be as high as 80 percent,” he wrote in his opinion.  In a review of the Packingham decision, the New York Times noted that the 80 percent estimate came from an off-hand comment from psychologists published in Psychology Today who ran a counseling program.  It pointed out that, without evidence or elaboration, “they made a statement that could be good for business.”

The Times drew on a 2014 report from the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART), a group established by the Adam Walsh Child Protection and Safety Act of 2006.  The report noted that sex offenders generally have low overall recidivism rates.  It found that “people convicted of sex crimes committed new sex offenses at rates of 1.7 percent to 5.7 percent in time periods ranging from three to 10 years.”  In concluding, noting, “the risk of new sex offenses by convicted sex offenders rises over time, reaching 27 percent over 20 years.”  It is estimated that there are close to 900,000 people listed on public sex-offender registries in effect in all U.S. states and territories.  They include men, women and, in some states, children as young as 8 and 10 years of age.

***

Sensational, headline-grabbing sex scandals, like the current ones involving male players assaulting women, capture nonstop media attention.  Everyone loves a good scandal and the current round are being effectively exploited to raise awareness and to capture advertising dollars. Behind the stories of scandals, however, something more fundamental is going on. It involves a series of court cases challenging current legal policies regarding sex offenders.  Earlier this year, the Supreme Court ruled in Packingham decision that even sex offenders had Constitutionally-protected rights.  A series of lower-court federal and state court decisions have added to a likely showdown about sex offenders and the renewed culture wars.

Earlier in November, the Pennsylvania Superior Court ruled a part of the state’s sex offense registration law violates both the state and federal constitution.  This follows a July ruling by the Pennsylvania Supreme Court, Pennsylvania v. Muniz, that found the state’s sex-offender registry was punitive and could not be applied retroactively. The state has approximately 4,500 offenders and the court found its registry law a violation of the Constitution’s ex post facto clause by Article I, Section 10.  The court ruled that state authorities cannot increase punishment for a crime after the fact, i.e., before the enactment of the law.

In September, a senior U.S. Judge for the District of Colorado declared the state’s Sex Offender Registration Act unconstitutional.  The judged ruled the “effect of publication of the information required to be provided by registration is to expose the registrants to punishments inflicted not by the state but by their fellow citizens.”

The state law follows what is known as Megan’s Laws, a subsection of the 1994 Violent Crime Control and Law Enforcement Act, requiring convicted sex offenders provide a host of personal information to local law enforcement.  The information includes: current photos; home, school and work addresses; vehicle identification information; e-mail or Internet identifiers; and descriptions of identifying body marks, such as scars, tattoos or beards.  Reporting is required at least annually, although some states require it every 90 days; regular updates are also required if there’s a change in residence or workplace, the growth of a beard or a new tattoo.  This information is published on public websites even after the perpetrator’s term of sentence has been fulfilled.

In June 2017, an 8th Circuit panel overturned a federal judge’s ruling and found Minnesota’s sex-offender civil-commitment statute constitutional; it does not violate a plaintiff’s due-process rights.  The case, Karsjens v. Piper, challenged the state’s 1994 Sex Offender Program (MSOP) law. About 20 states and the federal government permit the indefinite confinement of convicted sex offenders; an estimated 700 people in Minnesota and people 5,000 people nationally are held in civil commitment facilities.

However, in August 2016, the U.S. 6th Circuit Court of Appeals ruled in Snyder v. Doe that Michigan’s Sex Offender Registration Act (SORA) is a form of punishment and that cannot be applied retrospectively.  The ruling implicitly challenges 1999 Supreme Court decision, Smith v. Doe, that held that the sex-offender registries and public notification requirements were not forms of punishment because they were “regulatory” provisions and not “punitive” practices.

***

Since the Reagan-era of the 1980s, the U.S. has engaged in two domestic wars – a war on drugs and a war on sex.  Both have roots dating from the 1920s Prohibition campaign; both rejected the 1960s-70s countercultural insurgency. Both have been played out at federal and local levels — and both are failures!

The country’s drug-addiction “epidemic” has shifted from black to while, from the inner-city or urban ghettos to the suburbs and rural heartland.  Throughout the country, low-level drug offenses are being decriminalized, criminal penalties are being lessened and the traditional ethos of harsh punishment is being undercut by calls for restorative justice.

When launched, the war on sex drew politicians, law enforcement and people of good intentions, conservative and liberal (including anti-porn feminist and gay-rights advocates), into alignment with the religious right.  They joined forces in a campaign to forcefully suppress what was broadly conceived as a domestic security threat, violation of the sexually acceptable.

The sex offender was – and remains — a perfect target for moral outrage.  He (mostly) is someone who crossed a moral line and committed an unpardonable offense.  If he cannot be executed for his affront to civil and religious decency than, at least, he can be shamed or stigmatized, imprisoned, placed in indefinite detention and listed on a sex-offender’s registry.

The 25 men identified by the Times are “players” in the entertainment, political, media and corporate worlds.  Others will surely be added to the list.  Their outing is a friction point in the seismic shift in American social values now underway.  Those so far identified come from the celebrate sector, not most people everyday life. Unfortunately, misogyny is endemic to American life, but gets little local media or public attention until it becomes a media spectacle like what’s happening today.  Its all-to-often considered a private matter, rather than a social practice.

Within the limits of a highly-structure class system, gender relations are fundamentally changing.  Most attention is focused on female actors and political figures.  Unfortunately, the same abuse is being perpetrated against female assembly-line workers, retail clerks and nannies.  Hopefully, the celebrities will empower working women to point an accusing finger and say “No!” to sexual abuse.

The once mythic male as the family bread-winner that defined the post-WW-II society of the “American Dream” is giving way to the two-income household, but with women still most often pulling most of the domestic chores (e.g., running the household, raising the family, socializing).  The male sex-abuse scandals are a symptom of the transformation of gender power relations.  It’s time to change the way the legal system deals with sex offenders.

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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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