If I read the signs right, I believe that the hysteria revolving around the so-called “sex offenders”—which hysteria has not only affected society in general, but even the courts—is finally beginning to slowly abate, if some legal cases in Texas are any indication. See Green v. State, 350 S.W.3d 617 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); Lape v. State, 893 S.W.2d 949 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d); Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013); Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012). Consequently, I think it is high time to discuss the matter rationally and coherently (for a change), at least in print.
Since my position will undoubtedly be misrepresented, either mistakenly or deliberately, let me begin by stating the very obvious: Rape and the (deliberate) sexual molestation of children should both be punished and punished harshly.
Having said that, let me also proceed by making several assertions, which will be the topic of this brief article and which will probably be resisted by many—to wit, that: (1) the term “sex offender” is a misnomer; (2) there are persons who have been convicted as “sex offenders” but who are nothing of the sort and do not fit the above descriptions, although they are treated as such by the legal bureaucracies; (3) many persons—too many in fact—have been falsely accused and even convicted of a sexual offense due to a climate of hysteria that has lasted for decades, fostered by a spirit of “lynch journalism” in the media and by special-interest groups; (4) state bureaucracies have seized on the hysteria as an opportunity to render null and void various constitutional rights, the bureaucrats defending their actions in a self-righteous posture; (5) many of the “sex offender” treatment programs mandated by the courts are a shameful farce, sometimes carried out by opportunistic and unethical therapists; and (6) sex offender registries have served as a vehicle for additional legal punishments and extra-legal harassment and can be attacked from different angles than have been done heretofore.
I will now treat these topics in this brief essay in no particular order, but first a little background may be in order, which may be unpleasant to the reader. And that is: Modern-day teenagers think about sex and engage in sex. A lot. Some are very sexually active and start as young as 12 (and if the reader does not believe this, then he is seriously out of touch with reality).
Historically, a person was considered to be an adult the moment that he/she entered puberty—which even though one may not agree with the idea does have a certain logic to it. They could marry and males could also do military service. However, in the late 1800s, western societies started to prolong childhood further and further; for one thing, child labor laws were passed. This concept of prolonging childhood as long as possible can be seen today with college “kids” continuing school into their late twenties. But more relevant to the matter at hand is the uncomfortable fact that the age of consent varies from state to state and with it, the feeling of indignation and the idea of what constitutes a “sexual predator.”
And as tragic as is the act of being falsely accused of being a sex offender, what is equally tragic is being falsely accused of being a victim. In regards to consensual sex, a sexual encounter that would ordinarily be considered pleasant or memorable or regrettable becomes in retrospect highly traumatic once one of the persons is labeled as A Victim, for no other reason than the other partner is a few years past the designated boundary. As such, teenagers then truly become psychologically scarred when told they have been traumatized, and the event turns into a life-altering experience that will forever haunt The Victim.
But to return directly to the matter at hand.
First, the term “sex offender” is a misnomer because it implies that the person so labeled is presently actively engaged in sexual perversions. Why is this important? Because if a person has been convicted in the past of an offense, it took place in the past. As such, the hysterics in the media are implying that these individuals who paid their debt to society are still actively engaged in perversions, whereas in reality, and contrary to popular belief, “sex offenders” have statistically the lowest recidivism rate. Worse, if one of these individuals is indicted under the onerous registrations laws, he is presented to the jury by the prosecutor as a “sex offender”—that is, that he is actively engaged in perversions and a conviction is sure to follow, regardless of the evidence. Or lack of it. This is similar to the important distinction that Hayakawa once pointed out—namely that it is different in being called a thief and being described as having once been convicted of theft.
And this brings me to another matter. There are many people who have been falsely accused and even convicted of a sexual crime (e.g., Richardson, Darrell, The Effects of a False Allegation of Child Sexual Abuse on an Intact Middle Class Family. IPT, 2, 4–9 (1990)). I simply refer the reader to the following books documenting the overabundance of false accusations of rape and sexual molestation: The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse by E. Loftus; Satan’s Silence: Ritual Abuse and the Making of a Modern American Witch Hunt by D. Nathan and M. Snedeker; The Child Abuse Industry: Outrageous Facts About Child Abuse & Everyday Rebellions Against a System That Threatens Every North American Family by M. Pride; Victims of Memory: Sex Abuse Accusations and Shattered Lives by M. Pendergrast; and The Day Care Ritual Abuse Moral Panic by M. De Young.
Recently, an article in Rolling Stone detailed a terrible case of gang rape in a fraternity. It was a lie. When the deception was revealed, was there an outcry against false accusations? No. Instead, the almost universal reaction in the media was the agonizing hand-wringing that this episode would inhibit “other” rape victims from “stepping forward with their stories.” So the hysteria goes on.*
But what about the following individuals (all true cases): a) a 19-year-old boy who has been dating his 16-year-old girlfriend for months engages in consensual sex, is arrested and convicted, and subsequently marries his “victim”; b) a man has been camping near a river for days and goes to the river to bathe—just as a couple of girls canoe past and report him; c) at a party in college where the alcohol has been abundantly flowing, a drunken student “gooses” a coed, the coed decides that she has been sexually assaulted and at the urging of others, files rape charges; and d) parents who photograph their naked toddler as he is sleeping on his tummy and develops the photograph at the local store get reported by the store clerk and are arrested for child pornography.
I submit that contrary to the vociferation of some people, none of these individuals are rapists, child molesters, “sexual predators,” or “sex offenders.” But I leave it up the reader to decide.
I would now like to point out how the constitutionally protected rights have been nullified in regards to “sex offenders,” but let me once again digress.
Having an interest and one of my degrees in history, I often racked my brain trying to understand how it was possible that once in power, the Bolsheviks could have taken control of a country so vast as Russia when they were a small political party devoid of a strong presence outside of a half-dozen Russian cities. Later, when the Soviet Union imploded, the bureaucrats did not launch a resistance to democracy, but instantly went along with the new order, and when subsequently the government under Putin became autocratic, the bureaucrats went along. Likewise, how could the Nazis gain total control of arguably the most civilized country in Europe so quickly? The answer to both questions, I realized much later, was through bureaucracies and the nature of bureaucrats, particularly state bureaucracies. One of the psychological characteristics of bureaucrats is that they will instantly adopt, embrace, and energetically enforce whatever new policies become official from above—no matter how bizarre. I thought, however, that something like that might be likely in European and Asiatic countries with their long history of authoritarianism, but it was not going to happen in America, where liberties are ingrained in every individual. The case of “sex offenders” has completely disillusioned me. Consider the following:
In the Great State of Texas—and Texas is not an anomaly—persons who have been labeled as “sex offenders” and who are under the thumb of the parole and probation bureaucracies are prohibited from expressing their religion. They cannot put up decorations during religious holidays. Supposedly, children and teenagers who see a sign during Christmas stating “Peace on Earth,” or a sign in Easter exclaiming “Christ has risen,” or “Happy Thanksgiving” during Thanksgiving will be irresistibly compelled to go towards the door or window that exhibits the sign. There, they are sure to be molested by the “sex offender” living at that location. And, if one has an ankle monitor and is under super intensive supervision status—say, for having moved residences three weeks before notifying the authorities—that person cannot even attend religious worship on Sundays since he has a weekend lockdown. So much for freedom of religion.
Next comes freedom of speech and press. Many such individuals are prohibited from attending concerts, plays, jazz festivals, stage plays, and movies. They are also prohibited from owning a computer that has no access to the internet and from using a library’s computer. Why this particular rationale? Well, they might access porn websites—on a computer that has no internet connection, or on a public library computer with safeguards against accessing porn sites. In the (admittedly rare) instances of a “sex offender” doing any kind of pro se research, legal or otherwise, that activity is hobbled as a result of that prohibition.
“Sex offenders” are also prohibited from being in places where children might be found, a ridiculously broad prohibition since children are found practically anywhere. In fact, the only places where they cannot be found are—ironically—porn shops and strip joints! That is how the mind of a bureaucrat works. (Incidentally, the bottomless arrogance of a parole or probation bureaucrat in Texas has to be experienced firsthand to be believed; I have talked with some of them who have insisted that they are independent of the courts and do not have to obey them, while others have maintained that the individuals whom they supervise have forfeited any constitutional rights because of their crimes. I am not exaggerating.)
What is next? Well, how about freedom from self-incrimination? Here, the authorities have been truly creative in mandating yearly polygraphs as . . . “therapy.” And only those therapists who agree to administer polygraphs to their clients and give the results to the legal authorities are given a nice, fat contract. And do I need to say that those results have been used to prosecute sex offenders (Marcum v. Texas, 983 S.W.2d 762 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d), even though polygraphs have for decades been otherwise excluded from being used in courts of law for any other matter? The long-standing tradition of confidentiality between client and therapist, one that is constantly emphasized in their training, has been eagerly thrown out the window as sex offender therapists have embraced the role of being snitches through the transparent, ridiculous sophistry that the state is the client. Incidentally, if a client maintains his innocence of the original charge and the polygraph concludes that he is telling the truth, the therapist will point out that the instrument is flawed and unreliable. If he fails the polygraph, however, the results are valid and he is lying.
The profession has also traditionally emphasized empathy and support for clients, but this outlook has been likewise turned on its head. Enter some therapists’ offices and the hatred is instantly palpable, from the receptionist to the therapist. Any personal problems or stress that the client is experiencing is brushed off as the therapy of choice consists of encouraging constant self-flagellation, with occasional screaming. Most of the so-called therapies being used are a travesty and consist of constant recriminations.
To my knowledge, and as odd as it may seem, the above blatantly anti-constitutional restrictions do not appear to have been challenged in the courts. However, the sex offender registries have been taken up all the way to the Supreme Court under the basis that the registries are ex post facto (Carr v. United States, 560 U.S. 438, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010); Reynolds v. United States, ___U.S.___, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012); United States v. Kebodeaux, ___U.S.___, 133 S.Ct. 2496, 186 L.Ed.2d 540 (2013); Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003)). Unfortunately, the Supreme Court ruled, with a pretzel-like logic, that since the intent of the registries was not punitive, the argument did not apply even though the detrimental aspect of registries (vigilantism, restrictions on residence, lack of privacy) has been thoroughly documented—which is like saying that since the thalidomide birth defects were not intentional, they did not exist. Even the Supreme Court is not immune from the hysteria.
In decades past, the violation of civil rights of certain groups of people was widespread, most famously being with African Americans, Native Americans, Asian immigrants, and Mexican Americans. The same is occurring now. An objection will be raised that there is no comparison between those ethnic groups and “sex offenders” since the former had not engaged in illegal activities, whereas the latter, ipso facto, most certainly have. This is most certainly true, although all members of those ethnic groups were once wrongly considered to be probably engaging in illegal, if not immoral, activities. However, since that time it has been widely recognized that Constitutional rights must be applied to everyone.
Consequently, I believe that the sex offender registries can be attacked in the courts through a different angle, or I should say angles. The first, and most obvious, is that anyone who is accused of a violation of the registries and takes it to trial can argue very convincingly that it is impossible for a person to have due process and get a fair trial and, therefore, violates the 5th, 6th and 14th amendments to the United States Constitution guaranteeing a fair trial for all citizens. After all, is there anyone so obtuse as to believe that a person can get a fair trial when the first words that fall out of a prosecutor’s mouth are, “The defendant is a convicted sex offender”? As such, the sex offender registry law is clearly unconstitutional. Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002).
The second, and somewhat more obscure, angle is that the law is, for all intents and purposes, a bill of attainder. True, it does not zero in on one particular individual, but rather a group of individuals, but the number is irrelevant. That the law has had detrimental effects on “sex offenders” is undeniable and well documented. See Levenson, Jill, & Cotter, Leo, “The Impact of Sex Offender Residence Restrictions: 1,000 Feet from Danger or One Step from Absurd?” International Journal of Offender Therapy and Comparative Criminology, 49, 168–178 (2005); Levenson, Jill, & Hern, Andrea, “Sex Offender Residence Restrictions: Unintended Consequences and Community Reentry.” Justice Research and Policy, 9, 59–73 (2007); Levenson, Jill, & Tewksbury, Richard, “Collateral Damage: Family Members of Registered Sex Offenders.” American Journal of Criminal Justice, 34, 54–68 (2009). Local municipalities have, furthermore, used the registries as a peg on which to hang additional punitive laws prohibiting “sex offenders” from entering public libraries, swimming pools, and parks and have additionally restricted where they can live, all of which rely on identification through the registries. The words of Justice Douglas (dissenting) in Fleming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960), are apt:
By smiting a man day after day with slanderous words, by taking away his opportunity to earn a living, you can drain the blood from his veins without even scratching his skin. Today’s bill of attainder is broader than the classic form, and not so tall and sharp. There is mental in place of physical torture and confiscation of tomorrow’s bread and butter instead of yesterday’s land and gold. What is perfectly clear is that hate, fear and prejudice play the same role today, in the destruction of human rights in America that they did in England when a frenzied mob of lords, judges, bishops and shoemakers turned the Titus Oates blacklist into a hangman’s record.
Something else that should be considered is that if the law is not harmful, then why is it that a Texas statute (103.001) that was passed offering compensation to persons wrongfully convicted of any offense has a special clause allowing additional compensation for those who had to be listed in the sex offender registries?
Perhaps I am being optimistic, but I believe that the time is coming when we can look at the various “sex offender” laws and restrictions in a rational manner and can go back to applying the constitutional freedoms again—to all individuals. The hysterics in the media will resist this, of course, but the courts will decide in the end.
* Admittedly, this may not be an instance of hysteria but of a different type of mindset. Something similar happened with the recent massacre in Paris of the staff of a satirical paper by Muslim fanatics. Some in the media (e.g., The New York Times), instead of insisting that immigration from Muslim countries be curtailed, thus preventing the influx of fanatics and thereby averting future massacres, bemoaned the fact that the reaction to the mass murder could lead to restriction of further immigration. Similarly, when Muslim illegal immigrants in the Mediterranean threw overboard other immigrants who were Christians, the media glossed over the incident and increased the number of stories on “the plight of the immigrants.” Perhaps fanaticism and hysteria are linked.