longread: What counts as a sex crime? It depends.

What counts as a sex crime varies dramatically by time and place. So does what happens to those who cross the line.

1) In 1642 in colonial Massachusetts, Puritan authorities executed Thomas Granger, then 16 or 17 years old, for the crime of “buggery with a mare, a cow, two goats, divers sheepe, two calves, and a turkey.” Before the boy was hanged, the animals in question were slaughtered before his eyes. It was the American colonies’ first execution of what today we’d term a “juvenile.”

2) As of 1880, the age of consent for sex was set at 12 years in nine U.S. states, age ten in 35 other states, and in Delaware, it was seven. By the early 20th centuries, the morals reformers fighting to get youngsters out of the workplace successfully pushed for higher ages of consent. But relics of past standards persist: the New York Times noted in 2017 that many states, especially in the South, set no minimum age for marriage, citing a betrothal in Florida of a girl of 11 to a man of 20. Age of consent laws, in any case, were an age limit only to consensual sexual relations with girls – boys were not seen in any need of protection, until feminists pushed to strip the legal code of gender terms in the 1970s, despite the very different consequences of sex for females versus males. Even if uncovered by age of consent, boys were subject to other laws against male homosexuality. But those laws were often ignored if the acts were willing and kept quiet, as evidenced by thriving homosexual undergrounds in U.S. cities at least from the latter 1800s. However inappropriate today, with the expectation of higher education and longer lifespans, ages of consent for girls set around puberty reflected patterns of courtship and matrimony in the West that had persisted for thousands of years. In Ancient Greece and Rome, girls married around 14 or 15 to men who were fully adult. When Mary gave birth to the infant Jesus, say both scholars and Church fathers, she was 13 or 14.

3) In 1981, New York’s highest court struck down the state’s recently enacted child-pornography statute, ruling that it unconstitutionally banned making or selling books or films that “deal with adolescent sex in a realistic but nonobscene manner.” (Just owning such material was not at issue – a 1969 Supreme Court case established that mere private possession of works deemed obscene was constitutionally protected.) The 1981 New York decision was hailed by free speech activists of the day. Adolescent nudity and eroticism – a major subject of Western art from Greek vases to Shakespeare’s Romeo and Juliet – lived to survive another day. So could “realistic but nonobscene” presentations of young people’s sexuality, such as occurring in acclaimed films of Bernardo Bertolucci or Pier Paolo Pasolini, or the well-known 1970s sex education book Show Me.

These three examples from the past seem shocking today for, variably, their harshness (number 1) and their leniency (numbers 2 and 3). They show how much the rules defining sex offenses can shift dramatically over centuries or decades – indeed, just a few years.

By the mid-20th century, bestiality was more like the punchline to a joke than perceived existential threat to the community. Sex researcher Alfred Kinsey’s mid-20th century surveys finding more than half of farm boys reported such experimentation provoked more titters than outrage.

In the late 19th and early 20th centuries, morals reformers fought for and frequently won higher ages of consent for girls, and in the latter 20th century came another push to raise ages, which today range variably from 16 to 18. An explosion of Federal legislation – and prosecutorial drive – around sex offenses has in the last 40 years has led to a de facto nationwide age of consent of 18 – far older than historical norms and years more than prevails generally in Europe today (where, incidentally, teen pregnancy rates are lower). High U.S. ages of consent are hardly laws mouldering on the books – they’re enforced with vigor. Between 1980 and 1997 alone, one scholar found an 800% increase the number of Americans (both adults and juveniles) incarcerated for consensual underage sex. The most common age at which a male was prosecuted as a sex offender, according the U.S. Justice Department? 14.

As for pornography, in 1982, the U.S. Supreme court overturned the New York court’s ruling from the year before, over objections of free speech proponents such as the American Booksellers Association and librarians. The high court declared sexual depictions of minors – even portrayals of completely legal acts – as totally without First Amendment protection.

That decision unleashed decades of constantly expanding and harshening laws. The Supreme Court declared in 2007 that a 200-year sentence given an Arizona schoolteacher with no prior criminal record for possession of 20 forbidden images was not an unconstitutionally “cruel and unusual” punishment. Child porn laws have been expanded so that they cover images of completely clothed minors engaging in no sexual acts whatsoever, or even the Bible (if it’s put in a wrapper labeled “Kiddie Porn” and someone buys it). Sentences measuring in decades have been imposed for possession of mere cartoon drawings. By 2010, child porn sentences were “surpassing sentence lengths for all other federal crimes except murder and kidnapping,” notes University of Pennsylvania professor Marie Gottschalk. Federal porn prosecutions soared 17-fold between 1993 and 2013. It’s hard to imagine another 20-year interval at whose start doing something perfectly legal could lead to a multiple mandatory life sentences by its end, but that describes the curve of U.S. jurisprudence from 1989 to 2009.

So whether considered at the scale of centuries, decades, or years, the line defining legal pleasure from sex crime has shifted dramatically. Crossing that lines makes one a “sex offender.” But it’s not a single line – rather more like a shimmering set of potential tripwires that depend, like physics experiments involving quantum particles and possible dead cats, on the participant-observer. Despite rhetoric about how “all stand equal” before it, what body of law you face when it comes to sex depends on who you happen to be.

Matthew Limon had just turned 18 in 2001 when he had consensual oral sex with another teenager, age 14, a fellow resident at a Kansas institution for the developmentally disabled. Had the younger boy been a girl, Limon’s actions would have fallen under the state’s “Romeo and Juliet” exemption for teens close in age, and his maximum jail time would have been 12 months. But because the activity was same-sex, Limon was sentenced to 17 years. Higher Kansas courts upheld the discrepancy in punishment between hetero- and same-sex acts. But eventually the U.S. Supreme Court, citing its 2003 Lawrence v. Texas decision striking down sodomy laws, declared the difference unconstitutional, and Limon was released in November 2005.

The biases the Limon case exemplify haven’t gone away, however. There is little appetite for imposing harsh sentences on women who have affairs with underage boys, with “victims” often described in the comments to newspaper stories as “lucky bastards.” And there’s evidence male same-sex offenses lead to significantly more prison time – more than three times as much, according to one survey – compared to men prosecuted for relations with underage girls. Sex offenses are a domain where white, high-status, even super-rich males today enjoy few advantages before the courts – unlike in times past. But it remains that racial biases persist in the prosecutions for sex. “In some states an African-American person is over 16 times more likely to appear on a notification website than a white person,” notes Drexel University law professor Daniel M. Filler.

Under the current U.S. legal regime, “sex offenders” are deemed a class of bogeyman that warrant the state to reproduce the exclusions and exceptions once imposed on black people. In an infamous 2003 ruling, the Supreme Court smeared sex offenders as a group out of control, with “frightening and high” recidivism. The claim’s basis was nothing more than throwaway phraseology in a popular magazine article (Psychology Today), when in fact U.S. Justice Department statistics show those convicted of sex offenses have among the lowest reoffense rates among all tracked categories of lawbreakers. Delimiting a class of persons as a seemingly irrepressible threat to the body politic allowed the Supreme Court to go far beyond its infamous 1896 Plessy v. Ferguson doctrine of “separate but equal” to strip sex offenders of virtually all constitutional protections. So far they have not been declared a group that can be killed with impunity, as, for instance, Romani people were at various times in Europe. But in effect, they have been deprived of all civil rights, with courts going so far as okaying permanent preventative incarceration based on the mere possibility of future illegal acts.

America’s harsh sex-offender regime has become – along with world-beating rates of mass incarceration – its new “peculiar institution” – the epithet once given to American slavery. Throughout U.S. history, race – a term that has essentially no biological reality, just as “sex offenders” are hardly a natural category – was essentialized and then invoked time and again for central economic and political ends. An artificially constructed racial divide between “black” and “white” was invoked as a justification for slavery in the “Land of the Free.” After a cataclysmic Civil War brought slavery’s end, race anchored a regime of class and race domination that was the bone thrown to vanquished Southern whites. Politics is the means by which a society answers “Who gets what, when, and how?” Racial tension kept at the edge of boiling served key “anti-political” purposes, kin to the “Two Minutes Hate” in Orwell’s 1984: Whenever questions about the monopolization of power by a white Southern elite might rear their heads, they could be chased away with the distracting specter of out-of-control black men threatening sacred white Southern maidenhood. Going back to the Greeks and Trojans fighting over Helen, sexual transgression has proven easy to exploit by those wanting to inflame blood-lusts or gain cover for looting. It’s no different today.

Scarlet letter meets database

America’s excesses in punishing sex have gone so far that in the early 2000s, the U.S. came within a hair’s breadth of re-introducing executions like that meted out to teenage Thomas Granger in 1642. There was a push in the early noughts to reinstate the death penalty for “child rape,” and six U.S. states (plus the U.S. military) joined the bandwagon. But the provisions of the laws enacted in states such as Georgia and Oklahoma were so loose that those convicted of consensual statutory crimes on the order of Matthew Limon’s – or of entirely non-contact offenses with non-actual minors (crimes such as propositioning online an undercover cop posing as underage) could face execution. In a narrow 5-to-4 ruling in 2008, the U.S. Supreme Court struck down such laws, extending a ban on capital punishment it had imposed in 1977 in cases of rape of women.

Then-candidate Barack Obama condemned the decision. But in the running to become America’s first African-American president, he should’ve known better. Execution of black men and boys for sex crimes – real or imagined – has been another peculiar American institution. Some 455 men had been executed for rape between 1930 and 1964 – about 90% of them black – and thousands of others were killed in mob lynchings in the century prior. In August 1955, Emmet Till, age 14, visiting small-town Mississippi from Chicago, allegedly whistled at a white woman in the street. Vigilantes abducted the boy from his uncle’s house a few nights later, then beat and shot him to death. Emmet’s later self-admitted killers were found innocent by an all-white jury.

In many ways, today’s sex-offender regime recapitulates the U.S.’s history of racial exclusion, updated for the information age. The clockwork of social life is now so finely geared that someone’s entry in a database rather than the color of his skin is enough to radically delimit his existence. Both regimes create a sub-class of para- or non-citizens administered by starkly different legal standards or simply rule-free arbitrary dicta, who face exclusions about where they can live, where they can work, who they can associate with; they are subject to reign of arbitrary police powers and live under vigilante terror that enjoys the wink-wink of state sanction. Moreover, the sub-status of these Untermenschen is not some off-stage sideshow, but is constantly put up in lights for the majority to take the measure of its own superiority and virtue.

Emmet Till

America’s peculiar sex-offender regime is a diabolically sly retort to Martin Luther King’s call for people to be judged “not by the color of their skin but by the content of their character.” Many sex offenses entail wrongs and harms that no society can ignore punishing and redressing. But many other violations of today’s varied thicket of laws around sex are as victimless as they’d been a few decades ago when the law forbade oral sex, buying condoms, and same-sex liaisons. In between lie cases showing many shades of gray.

Few doubt that two 17-year-olds can manage consensual erotic massage without clothes. What if the affectionate couple whips out smart phones to take nude photos of each other? That’s a life sentence in many jurisdictions. Which is maybe why 16-year-old honor student Corey Walgren threw himself off a parking garage to his death in 2017 when his high school principal threatened him with child porn charges for photos he’d taken with his girlfriend.

Corey Walgren (left, with father) – suicide at 16 from threatened child porn charge in 2017 for images taken with his high school girlfriend

So violating sex laws per se is hardly the measure of character for which it’s become proxy. Consider the comparative leniency with which physical violence or white collar fraud that immiserates millions or deadly drunk driving is treated by prosecutors and courts in comparison to technical violations of sex laws, such as the mandatory life sentence handed down to an African-American Georgia man who at age 19 had consensual sex with his 15-year-old girlfriend, served five years for statutory rape, and then got condemned to life in prison because he couldn’t find a place to live in accordance with the state’s onerous residency requirements. (The Georgia’s state Supreme Court threw out the life sentence, and Bradshaw’s term for “failing to register” was reduced to 20 years). All for an underlying act that wouldn’t be a crime in many other states.

Black families in the Americas teach, especially their sons, to fear and mistrust the police, because the fates of an Emmet Till or Tamir Rice – age 12, shot to death by a Cleveland, Ohio, cop in 2014 moments after seeing him in a park playing with toy gun – reverberate through collective memory. But men charged with sex offenses and those around them have typically grown up in families and communities with no such wariness of authorities, no such suspicion of their motives and power.

Not necessarily Officer Friendly

Sometimes common sense is enough. But in times of extraordinary flare-ups of hateful vengeance, when society veers off the deep end, there are no playbooks. Families and friends of those in prison for sex offenses have to wrestle with false stereotypes and as they try to square the prevailing vindictiveness with their affections, concern, and loyalty to their loved ones. Those of us in this difficult position can play a vital role in watching out for the well-being and basic humanity of these prisoners – and organize to fight an often cynically stoked panic that threatens the rights of all.

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