Opponents of the death penalty note how it multiplies all the failures and inequities of a criminal justice system. For thousands of prisoners stuck in the US’s system of mass incarceration, the COVID-19 epidemic has turned prison terms into death sentences.
By early February 2021, there were been at least 372,583 cases and 2,359 reported deaths among US prisoners, according to the Marshall Project, which has focused coverage on the issue. As of the end of 2020, more than one-in-five prisoners has been infected. In seven states, more than half of prisoners have been infected. In Nevada, 4.2 out of every 1,000 state prisoners have died.
The underlying problems that make prisons hotbeds for infection – within their walls, and spilling out to their communities – will continue to put millions at risk. The most vulnerable and overlooked inmates face even more peril, and need voices of family and friends outside prison walls to speak up, organize, and apply pressure.
Men incarcerated for sex offenses routinely face some of the longest jail terms handed down, so are often kept locked up into their most medically vulnerable elderly years. As well – uniquely among prisoners – they can be held indefinitely after completing their sentences. For this group, risks from COVID are multiplied yet more.
Some 6,300 men are held in the US in post-sentence “civil commitment” by the 20 states and Washington, DC – along with the feds – that allow lifetime preemptive detention to prevent future sex offenses. Confined in putative “treatment centers,” governments hid behind medical confidentiality laws – so COVID infections and deaths in these internment facilities aren’t even reported in national totals. Knowledge of COVID’s impact among these men is only anecdotal.
Reports by inmates at New York State’s civil commitment facility in Marcy indicate that many have been sickened by COVID and several have died. State-run in-patient psychiatric facilities, such as Marcy, were “one of the hardest hit institutional settings per capita in New York State,” noted one report in April 2020. For months the facility has been kept in lock-down, with inmates confined to their rooms.
In Florida, James Pesci, a civilly committed man at the Florida Civil Commitment Center was one the key organizers of resistance among the some 300 locked up post-sentence with no release date. Pesci published an in-house newsletter on the library printer – Duck Soup – that he went to federal court to fight the administration from silencing.
“A supervisor can order any detainee placed in a secure management cell for the smallest of infractions,” Pesci wrote in a 2003 article. “These cells are filthy and never cleaned and the staff rarely does the required 15-minute security checks…. One detainee, who attempted suicide in one of these cells, splattered his HIV-infected blood over the walls and it remains there to this day.” In December 2020, Pesci, still in locked up for “treatment,” himself died at from COVID.
Minnesota, perhaps surprisingly, is the state with the highest proportion of civilly committed men in the US. Anger was already high among inmates from failure to ever release the men under “treatment” – only 13 have every been unconditionally released in 25; more six times as many died in custody. The failure to address a burgeoning COVID epidemic that claimed three inmates in December 2020 finally provoked resistance. In January 2021, a dozen activist inmates at the facility launched a hunger strike, garnering national publicity. “Several of the men said in interviews that they were prepared to be hospitalized or starve to death if the state did not respond to their demands,” the Minneapolis Star Tribunereported. The strike was called off after two weeks when state officials agreed to meet with inmates’ outside support group, consisting of their family, friends, and other activists.
When, not if
Something like a COVID-19 was in the cards. Infectious, deadly respiratory illnesses recur reliably. Despite the specter raised by SARS (2002) and MERS (2012), no serious pandemic before COVID-19 had emerged since the US started its experiment in mass incarceration in the 1970s. Prisons in the US are characterized by overcrowding and generally woefully inadequate health care in the best of times. The Marshall Project’s reporting shows as well the serious inadequacies systematic failure to take basic precautions to protect inmates and staff.
“Staff ignored or minimized prisoners’ COVID-19 symptoms, and mixed the sick and healthy together in haphazard quarantines,” the Marshall Project notes, discussing the Federal Bureau of Prisons, the US’s largest single jailer. “Thousands of prisoners were shipped around the country in February and early March , taking the virus with them….”
In Texas, a 79-year-old prisoner wrote from a federal medical facility, saying it “is now nothing more than a de facto Death Row for elderly and sick offenders. This facility is literally God’s waiting room.”
Staff at prisons have also been affected. As of early February 2021, there had been 100,377 cases among prison workers, with 175 deaths.
The ongoing rollout of vaccines will help, but the underlying problems that make prisons hotbeds for infection – within their walls, and spilling out to their communities – will continue to put millions at risk. The most vulnerable and overlooked inmates face even more peril, and need voices of family and friends outside prison walls to speak up, organize, and apply pressure on politicians and bureaucrats to fight these injustices.
Some relationships involve sex. Some acts are motivated by desire. When are they good? When are they morally questionable? When should they be illegal? When are they plain wrong?
Answers to these questions can be among the most strongly felt positions held by people – and societies. But when it comes to sex, legal systems vary dramatically in terms of what’s allowed or prohibited. Over time, the variations are huge.
Today almost everywhere, adultery may be considered wrong, but it’s not illegal. Nor are sexual relationships between people with different skin color or of the same gender. But in past times many so accused faced punishments up to execution.
Because feelings about sex can be so charged, it’s possible a society may come to see that it has overpunished those who violate certain norms. Historically, many laws have persecuted people for behavior or interests that are anomalous but also benign. This may be the case even today.
On the other hand, sometimes societies sweep wrongdoing under the rug rather than face unpleasant realities.
Neither situation is good. Keeping an open discussion and dispassionately considering the evidence are the best ways to strike a balance.
Today in the West, sexual feelings adults have for minors – and acts that sometimes follow – are the occasion for outrage and harsh punishments and permanent suspension of civil rights. What are the actual facts that can help us create laws that are effective and just?
For more details click here. For an even deeper dive into these questions, click here.
Attraction can take many forms. How people act – or otherwise deal with – their sexual feelings and desires varies a lot. Erotic bonds can be the glue that starts and sustains the most important relationships in a person’s life. Sexual impulses can also be unruly, motivating hurtful acts and crimes, from stalking to rape to child abuse.
Today in the West, sexual diversity is widely acknowledged and discussed. But one area is strongly taboo – erotic attraction of adults (over 18) to persons younger. Are such desires rare or common? Are they always exploitative or harmful? How do males and females differ when it comes to such feelings?
With attraction to minors a highly charged issue today, the first impulse is now to condemn and punish those who cross the line. Where should the lines be drawn? What evidence matters when it comes to crafting laws and policies that are effective and just?
Read a little more on this topic here. For an even deeper dive, click here.
What counts as a sex crime varies dramatically by time and place. So does what happens to those who cross the line.
In colonial America, Puritan authorities executed a teenage boy for sex with farm animals.
But despite those Puritan beginnings, America has sometimes also been remarkably lax about regulating sex.
In 1880, 35 U.S. states set the age of consent for girls at 10. Boys were not covered by any age of consent generally until the 1970s.
In 1981, New York’s highest court ruled that child porn laws were unconstitutional if they prohibited portraying adolescent sexuality in a “realistic but non-obscene” manner.
Today U.S. sex laws are anything but lax, even if laws against adultery and sodomy, which were almost never used, have been cast aside. Compared to the 1870s or 1970s, America has reversed course, dramatically expanding the scope and the harshness of sex laws in ways that recall the Puritans’ vindictiveness.
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, is 14.
Barack Obama, on the campaign trail, condemned a Supreme Court decision that barred execution for sex with minors, laws written so loosely they covered acts of consensal sex among minors themselves or sex crimes with no actual victims.
A regime of thoughtless and unrelenting harshness leads to needless tragedies. In 2017, 16-year-old honor student Corey Walgren threw himself to his death off a parking garage in Illinois when his high school principal threatened him with child porn charges for photos he’d taken with his girlfriend. His death adds to a sad litany of men and boys who have killed themselves rather than face prison for sexual offenses or be shamed for life as registrants.
The tangle of rules and prohibitions put on people ever convicted of a sex offense has created a new version of Jim Crow. After the U.S. Civil War put an end to slavery, the South imposed on blacks second class status and a reign of vigilante terror. National institutions, such as the Supreme Court, looked the other way or lent their support.
This new Jim Crow regime is also based on knowingly false stereotypes and ill will. People who have a conviction for a sex offense in their past can be barred from living in most places or working in many jobs, or even forced to live away apart from their families or have their children taken away.
US Justice Department statistics show that people convicted of sex offenses have among the lowest redidivism of among past lawbreakers. But in 2003, the U.S. Supreme Court cited a throwaway line in a popular magazine claiming that recidivism for people with sex offenses was “frightening and high”. Based on that falsehood, the U.S. high court has ruled there is virtually no limit to the restrictions – up to and including lifetime “preventative” incarceration after a sentence a fully served – that can be put on people who at any point in the past had a conviction for a sexual offense.
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.
For a longer discussion of these issues, click here.
There’s a huge disconnect between current popular attitudes and professional knowledge of psychiatrists, social scientists, and historians.
Erotic attraction to people under 18 years of age is common and, along the life course, typical. That’s true even today in the West when such feelings are labeled “pedophilia” in mass media and regarded with outrage both in public opinion and harshly punished by the law.
Psychiatry defines pedophilia as primary and persistent attraction to prepubescent girls or boys, generally age 10 or younger — and views such as a mental disorder. But psychiatry recognizes attraction to adolescents as so common as to be completely normal.
For centuries, marriage in societies around the world was most often between a girl 12 to 15 with a male 19 to 21, who had time to establish himself economically.
Male same-sex relationships over time show a similar pattern. Most famous historical figures now celebrated as “gay” were in fact mainly erotically oriented toward youths, such as artist and polymath Leonardo da Vinci, poet Walt Whitman, writer and wit Oscar Wilde, or computer-science pioneer Alan Turing. In societies — from ancient Greece to pre-modern Japan where these relationships were seen as normal, it’s striking that a large proportion of men seem capable of feeling such attraction — together with heterosexual impulses.
These patterns persist, even in America today. Boston University researchers looking at internet search terms for erotic imagery say no request is more popular than “nude girl 16.”
Seeing that male erotic feelings for minors is typical – and almost certainly what males are evolved to feel – does not speak to whether sex involving minors is legal or right for today. But harsh and inaccurate attitudes about the rarity of attraction to minors puts a large proportion of men and boys today at risk of years of imprisonment. Some 40% of U.S. youngsters have “sexted” (broke child porn laws) by age 13. In some U.S. states as high as 30% of prisoners are incarcerated for sex. And federal incarcerations for porn possession rose more than 60-fold from 1996 to 2010. Around one million U.S. citizens are deprived of virtually all civil rights as registrants.
Surely there are ways to foster sexual behavior in line with today’s mores without destroying hundreds of thousands of lives.
If you’ve reached this website, you may already agree that our current justice system is out of control. Not that lawbreakers should be given a pass, but how do we treat those who have committed crimes so as to effectively protect society and rehabilitate offenders? How do we do this in a way that not only helps offenders but helps society as well? Can one person make a difference?
Alone, we usually feel helpless to achieve anything of great significance. But when we look around at all that human beings have accomplished we have to marvel. From skyscrapers and bridges, universities and parliaments, electrical grids and computer networks — all are the products of many individuals combining their singular voices and talents to achieve goals greater than could ever have been achieved alone. Here are a few ways you can contribute and suggestions that will increase your reach and influence:
Support for those in prison, civil commitment, or on the registry. Your friend or relative may have been sentenced for acts that may make you uncomfortable, but that person is still a human being. Loss of liberty is one thing, but ostracism can be a punishment even worse. Try to stay in contact at least by letter, phone, or other means allowed. Prisoners who have outside support are less likely to be abused by prison staff or other prisoners. They are also more likely to be productive once they are free.
Support some of the organizations listed with donations or simply by joining their mailing lists. Legislators are definitely influenced by the size of support behind reform groups.
Call or write your legislators when action is needed. (Calling is likely more effective.) Many lawmakers have websites where you can let your opinions be known. Email addresses can be anonymous should this be a concern. When new laws are proposed to further harshen punishment for those who break sex laws, or further tighten restrictions on when offenders get out, call or write your legislators to let them know your concerns. By joining the mailing list of your local reform group you’ll find out what are the top concerns and talking points.
Try to engage other relatives or friends in the issue. You may feel uncomfortable doing this but there are ways of diplomatically broaching the subject.
Is it shocking for an adult male to be sexually attracted to a person under 18 years of age? Many in the U.S. today answer “Yes, absolutely.” Probably some who would answer that way have a different view privately, or at least are conflicted. Or, especially if they are male, would recognize the possibility of such feelings in themselves. But there’s almost no space in public discourse for admitting that, no space for anything other than absolute condemnation. For family and friends of someone incarcerated for an offense involving such attraction, this silence doesn’t make dealing with the situation any easier.
Making sex involving minors almost unthinkable might be seen as a way of discouraging it. But it’s clear that people don’t wait until their 18th birthday to become sexual. Nearly 40% of U.S. youngsters have sexted before reaching age 13, according to one study – in other words, broke child pornography laws, that nowadays can lead to long prison sentences and permanent forfeiture of civil rights. And plenty of sexual relationships among minors themselves involve age gaps. Even people who concerned about the potential harm of such sex involving persons under 18 recoil at the over-punishments and demonization meted out to offenders – such as the mandatory 10-year sentence handed down in 2005 to a 17-year-old Georgia youth for consensual oral sex with a 15-year-old girl. So it’s a useful effort – not just for those of us connected to a person facing punishment – to peel back some of the layers of unthinkability about attraction to minors.
A taboo around talking about erotic feelings for minors makes it easy to miss how common such feelings are, based on well established research that’s been replicated time and again and approached from different angles. A small degree of sexual response even to young children is common in men.
“Pedophilia” as used by psychiatrists has a distinct and delimited meaning – primary and persistent attraction to prepubescent girls or boys – generally age 10 or younger. Psychiatry considers pedophilia in this sense – not incidental attraction – as a mental disorder (though some experts disagree and consider it simply a variant).
Currently, American psychiatry considers attraction to pubescent young persons (generally, ages 11 to 14) “hebephilia”. Attraction to those around 15 to 18 is defined as “ephebophilia.” Neither hebephilia nor ephebophilia is considered a disorder – such feelings are so common that it would be like calling curly hair a disease.
Some psychiatrists mounted an effort starting in 2008 to get hebephilia (attraction to pubescents) defined as a mental disorder. The attempt failed in 2013, when the board of the American Psychiatric Association rejected the idea. One leading psychiatrist, Dr. Richard Green (Cambridge University, UCLA) summed up the case in a letter to a psychology journal: “Sexual preference for 14-year-olds as a mental disorder: you can’t be serious!!”
There are different ways to measure male attraction. None are perfect, but they offer clues.
One way is to just ask men what kinds of people they’re attracted to. Of course, the answers may not always be truthful. In a 2014 Canadian survey of male college students, 99.1% reported they were not even slightly sexually attracted to pubescents ages 12 to 14.
Given other evidence, that result seems to reflect the opprobrium heaped on such erotic desire today more than their actual feelings.
A 2011 study found that 52% of male students reported at least some sexual arousal to at least 1 of 3 stories involving sexual activity with a child.
In a study from 1980 cataloging various erotic fantasies, 94 adult men were asked if they experienced various fantasies during intercourse or while masturbating. Sixty-six percent of respondents experienced the fantasy “scene where you initiate a young girl,” and it was the 12th most common fantasy scenario out of 46.
Another way to gauge male attraction is to attach a rubber ring that measures an erection in response to different stimuli (pictures, stories). It’s called “phallometry.” If the sample of men tested is representative of men generally, the results of this sort of phallometry could be expected to be more or less valid. It’s a method that potentially bypasses men’s understandable resistance in today’s climate to admit to forbidden desires.
A meta-analysis of seven phallometric studies found that 21.6% of men recruited from the community are more or equally sexually aroused by youngsters up to 13 years of age as by adults. Another researcher summing up the evidence similarly concluded, “Approximately 20% of normal men are determined to be pedophiles based on data from control groups and other non-clinical / non-forensic males.”
British academic Sarah Goode summed up the results of multiple phallometric studies of men recruited from the community or among college students, showing that anywhere from 17% to 58% were capable of sexual arousal in response to prepubescent children of one or the other sex.
These numbers are already high, but in the loose, catch-all way pedophilia is used in popular discourse, the term actually covers the vast majority of males – and represents peaks rather than tails of men’s and boys’ desires. Men in trouble for sexual feelings or acts involving persons in their late teens – 16 or 17 – are routinely called “pedophiles,” even while young people of that age are in most places in the West even today considered capable of giving consent to sex. Former Subway restaurant spokesman Jared Fogle was condemned as a “pedophile” in the media. He had been twice married to women and has two children. At the start of his nearly 16-year sentence in 2015, he was beaten up in prison by an inmate who reportedly “hates child molesters.” But the one charge involving actual sexual contact with a minor for which Fogle was convicted involved non-coerced sex with a 17-year-old woman. It illustrates how “pedophile” has become an epithet thrown with the precision of mud balls, like how “fag” is yelled out in schoolyards. Google returns nearly 200,000 results for “‘Harvey Weinstein’ pedophile,” despite the jailed movie mogul having only been accused of sexual encounters with unwilling fully adult women.
Even with “pedophile” being used wholesale to call out alleged male sexual misbehavior, it remains that the further a man’s interests dips below the age of 18, the greater the condemnation. This is so even though the “age of consent” varies dramatically in the U.S., if it exists at all, for other major decisions young people face, such as joining the military (possible at 17), buying alcohol (21), getting a permit to drive a car (14 in some nine states), or undergoing sex-change therapy (seen by advocates as best begun before puberty, around 12). Some 13 states have no minimum age for youngsters to be prosecuted as adults and incarcerated in adult jails.
But 18 has become a pretty hard line in the U.S. with regard to sex. So is sexual attraction to 16- and 17 year olds completely normal and expectable in males?
Official Western psychiatry, as we’ve seen, consider such attraction normal. So has the law, until recently, and in some small ways sometimes, even now.
A study of a popular free online dating site showed that women of 18 got the most attention from men … with responses falling for every older age … but of course, no younger age was tested. Would an age younger than 18 have been more popular? Pornography showing actors 16 and 17 years of age was not criminalized in the U.S. until 1984. That was the year Traci Lords, then 16 years old, used a fake ID to appear as a model in Penthouse magazine and commercial porn films. One of the films she starred in that year was not just popular – it won the porn industry’s “best movie” prize, porn’s equivalent of the Oscars, and she became one of the highest paid porn performers of her day.
In a 2012 book A Billion Wicked Thoughts: What the Internet Tells Us about Sexual Relationships Boston University researchers looked at a trove of leaked sex-related internet search terms – overwhelmingly males looking for visual imagery. Searchers had all kinds of quarry: photos of women endowed with big breasts or showing off gorgeous thighs … but one search term was more popular than any other: naked girl 16.
These examples suggest that men’s and boys’ attraction to young women of 16 and 17 is not a marginal attraction, but at or near the peak of the bell curve of male erotic response.
What about men’s attractions to those under 16? For centuries throughout the Western world, until the late 19th century, the minimum age of marriage for girls hovered between 10 and 12, usually with a somewhat older male (who had time to establish himself in work enough to support a family).
In the past, male homosexuality often involved an age differential, involving adolescents who had high sex drive but no socially acceptable heterosexual outlet and men who were attracted to them. This older-younger pattern remains evident in the West even to today, in all-male contexts such as prisons and boarding schools, where it arises spontaneously, among inmates who outside of institutional walls would act heterosexually. Most famous historical figures now celebrated as “gay” were in fact mainly erotically oriented toward youths, such as artist and polymath Leonardo da Vinci, poet Walt Whitman, writer and wit Oscar Wilde, or computer-science pioneer Alan Turing. But in societies where these relationships were at least tolerated, it’s striking that a large proportion of men seem capable of feeling such attraction. In Renaissance Florence, upwards of 2/3rds of men were implicated in these kinds of age-structured relationships according to court records. In ancient Greece, these kinds of bonds were celebrated as ideal contexts for mentorship.
This older-younger pattern is dominant in the West, even to today, in all-male contexts such as prisons and boarding schools, where it arises spontaneously, among inmates who outside of institutional walls would act heterosexually.
In the West today, where man-boy bonding today is strongly discouraged for fear of sexual abuse, only those males with a strong predisposition manifest such feelings. They are especially likely in today’s hostile environment to get in trouble.
Seeing how ordinary erotic feelings for minors are among males, how they are almost certainly what males are evolved to feel, does not speak to whether sex involving minors is legal or right for today. Ours is a world where girls’ education is vitally important (instead of child-bearing early and often), where human overpopulation threatens the world’s ecology, and in which girls join boys going to school rather than cultivating mentors. But this backdrop of evidence suggests we’ve overshot in demonizing men and boys who, from a Big Picture perspective, show completely ordinary impulses. Impulses, based on just what we know about internet search terms and youth sexting, put, if not Everyman and Everyboy, at least a large proportion of men and boys today at risk of years of imprisonment. Between 10 and 20% of state prisoners in the U.S. are inside for sex offenses – in some states as high as 30%, notes University of Pennsylvania’s Marie Gottschalk. And federal incarcerations for porn possession rose more than 60-fold from 1996 to 2010. Around one million are deprived of virtually all civil rights as registrants. Those of us with family or friends caught up in this system can legitimately ask why has America chosen to sacrifice so many of its sons. As a disastrous War on Drugs finally seems to be letting up, surely there are ways to foster sexual behavior in line with today’s mores without destroying hundreds of thousands of lives.
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.
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.
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.
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.
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.
Every society has to address wrongdoing. What’s defined as wrongdoing and what kinds excite the most attention – sometimes rising to irrational blood lust – varies widely over time and place.
On a historical scale, it was not that long ago that slavery was not only legal but many otherwise decent people thought it was right and the way God had ordained it. Even in non-slave states where slavery had been eliminated, the “property” rights of Southern slave owners were legally protected by the Fugitive Slave Act of 1850.
Nevertheless many American communities after emancipation made interracial marriages illegal and maintained a Constitutionally protected rigid system of segregation.
In much more recent times, homosexual acts were not only abhorred but illegal as well and punishable with prison sentences. Who would have thought that gay marriage would one day be legal.
The use of marijuana, until very recently a criminal act is now made legal in a number of states and localities for not only medicinal uses but for recreation as well.
There are many laws in other societies whose severity most Americans would be shocked at. For instance, insulting the Prophet or Islam in certain Moslem countries would bring a penalty of death. Yet most citizens there would think it right and proper.
So what are we to make of the inconsistency of human beings to define what should and should not be criminal?
Today in the U.S. no crime is regarded with more outrage than sex offenses involving minors. But does that outrage — while some may feel it cathartic or self-righteous to indulge — lead to grave injustices? Look at the evidence and one can see trials and convictions of people for crimes they didn’t commit, or maybe never happened at all. Or the frequent lack of proportionality between harm caused and the punishment meted out. Millions are now affected by what one lawyer calls the totalitarian regime the U.S. has created for offenders since the 1990s – lifetime parole, pre-emptive incarceration, Apartheid-esque residency restrictions, the state seizing children away from their parents, and tacitly supporting murderous vigilantes.
Those touched by the “sex-offender system” that has emerged in the U.S. since the 1980s should consider what is happening now with terrible waves of cynically cultivated hatred – from the European witch-hunting to the wave of lynchings in 19th and 20th century America to the Europe’s murderous antisemitism or the purges of dissidents and sexual minorities of the U.S. McCarthy era.
“Registering with Dignity: A Practical Guide to Reentry and Life on the Registry”–This PDF was published in 2017 by the New Jersey-based Sex Law and Policy Center, which appears to be currently suspended. But their pamphlet offers essential advice for those having to navigate the registry, and is helpful to friends and family of registrants as well.
Once Fallen An exhaustive set of resources to help registrants navigate the difficult constraints imposed on them. http://oncefallen.com Derek Logue 2211 County Road 400 Tobias NE 68453 email@example.com (513) 238-2873
Just Future Project Focused on the fight to abolish indefinite preventative incarceration, Just Future Project offers info and calls to action around the injustice and immorality of the U.S.’s civil commitment regime. https://ajustfuture.org 703-869-8080
2012 Dutch documentary Are All Men Pedophiles? notes that at the time of issue more than 1/3 of “sex offenders” were themselves under-age – a point underscored by a U.S. Justice Department report noting that the modal age (the age appearing most often) of an arrest in the U.S. for a sex offense is 14.
Servants of the Paracletes helping Catholic priests etc. who have gotten in trouble. Locations – USA: Dittmer, Missouri, and Jemez Springs, New Mexico Fr. David T. Fitzgerald sP, Servant General firstname.lastname@example.org http://www.theservants.org/ 636-274-5226 email@example.com
CURE-SORT https://www.cure-sort.org Sex Offenders Restored through Treatment (SORT), a non-profit advocacy membership organization founded in 1990, is an issue chapter of Citizens United for the Rehabilitation of Errants (National CURE) and is referred to as CURE-SORT. The group works to provide information, resources, contacts, and support to individuals, families, defense attorneys, treatment providers, public media, legislators, law enforcement personnel, and other professionals who work with or are interested in issues of sexual abuse and its prevention.
Sex Offender Research & State News http://sexoffenderresearch.blogspot.com Not for the faint of heart, this site brings home how desperate are the situations of people caught up in the U.S.’s sex-offender system. The state may not be legally able to torture or impose death, but by inaction or deliberately casting a blind eye, it brings about cruel extra-legal punishments.
National Association for Rational Sexual Offense Laws (NARSOL) https://narsol.org/ PO Box 25423, Raleigh, NC 27611 888-997-7765
Arizona – Arizonans for Rational Sex Offenses Laws http://azrsol.org 1880 East Morton Avenue #235, Phoenix, AZ 85020 623-296-2904 firstname.lastname@example.org
https://harvardtothebighouse.com – A blog covering many topical issues, among them, the author’s passage from suburban Maryland high school, to Harvard University, to a career in intelligence, to time in Maryland prison on a sex charge. Important meditations on surviving prison, the waste and irrationality of the U.S. criminal justice system, and the human condition generally!