Blogs > Liberty and Power > The War on "Sex Offenders"

Mar 4, 2006 10:12 pm

The War on "Sex Offenders"

Readers are familiar with the War on Poverty, the War on Drugs, and the War on Terror, and how the state uses military metaphors to justify spending billions of dollars on failed policies that destroy human liberty. For the past twenty-five years, since before the now discredited satanic cult child sex panic that made headline news in the 1980s, we've witnessed federal and state authorities in the United States waging war on those whom they identify as"sex offenders" and"pedophiles." Truth be told, there's been precious little opposition raised by either self-identified libertarians or civil libertarians. First Amendment stalwarts steer clear of the question of child pornography. And libertarians, who are happy to defend the right to ingest the recreational drug of one's choice, studiously avoid any discussion of the age of consent that has now been effectively federalized at eighteen.

I was therefore delighted finally to read a thoughtful and well-researched essay that addresses these issues in an unapologetic fashion from a civil libertarian perspective. I strongly encourage all who claim to take personal freedoms seriously to read this article and think about the issues raised. Pariah's Scapegoats and Shunning is a telling account of what the author calls"sexual fascism in progressive America" and explains how the Feds and state authorities are waging war on the civil liberties of millions of Americans under the guise of protecting children.

The author concludes as follows:

"One day--perhaps fifty or a hundred years from now--it will appear ludicrous that our society was so consumed with anger at this class of scapegoats that it obliterated its fine traditions of liberty and justice in favor of retribution and vengeance. It will seem odd, that American society was obsessed with concern about sexual acts with teenagers even as it pursued a pointless war that killed thousands of teenagers and others on both sides of that war. People will hopefully someday recoil when told that a person convicted in Federal court of making a photograph of a 17 year old masturbating would receive a mandatory sentence of life in prison, yet a person convicted of the (non sexual) murder of that teen would face far less. It will seem incredible that the focus was on sexual deviance rather than on the astronomical rate of murder and other real violence, or the growing gap between rich and poor, and the indelible mark of real poverty on so many children. Until such a day of greater sanity, this scapegoating and shunning of all sex offenders and "pedophiles" will inevitably lead to less freedom and more insecurity for all who might engender the wrath of puritan preachers or stoke the greed of media outlets and pandering politicians. For now, it seems unlikely that even those who traditionally guard our civil liberties or those who traditionally challenge state repression from the left, will dare speak out, lest they, too, be marginalized and shunned."

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Irfan Khawaja - 8/4/2006

I wasn't taking your recommendation of the article as endorsement of everything in it. I was taking issue with your claim that the article demonstrates that there is a "war" on against sex offenders. I was also taking issue with your claim that it was a well-researched article. And given the flaws I've pointed out in at some (unrebutted) length, I was undercutting the idea that it demonstrated anything of any great significance.

The sum total of your response is to assert, over and over, that no matter what points in the article I rebut, and how much data I amass, I have missed the point of the article. It would therefore appear that the point of the article is not identifiable with any claim that the article actually makes. It seems instead to be some ineffable vapor somehow tenuously associated with the article, but not locatable in the text. There are some handy phrases to describe this argumentative tactic: "special pleading" and "dogmatism" are the two that come to mind.

(You may notice that your two showcase claims (ages of consent and nude photographs) have now vanished from the discussion. Could that be because what I said about them constitutes a rebuttal?)

It is simply bizarre for you to tell me that you don't have the time to address the points I've made in my article, but somehow feel entitled to assert over and over that I haven't rebutted its main point. You can't state what that main point is supposed to be over and above the supposedly subordinate points I've rebutted.

You "suggest" that the war on sex offenders is like the war on drugs. Well, a "suggestion" is not an argument. But there is anyway an obvious disanalogy between the war on drugs and police efforts against sex offenders. Drug use is essentially victimless. Sex offenses are essentially victimizing. So in the drug war, the whole effort is misguided. That is not the case with the sex offense issue: sex offenses are serious rights violations, they take place behind closed doors, and the recidivism rate is high. So a concerted effort at arrest and prosecution is warranted.

To call this effort a "war" on civil liberties is to evade the rights that are protected by it. Pushed to account for this obvious, elementary fact--that what you so cavalierly deride as a "war" actually protects rights--you produce nothing but marginal cases and analogies to police activity that is fundamentally different in character. Pushed to show how the marginal cases constitute a "war" against civil liberties, you plead lack of time. Pushed to deal with actual numbers and facts, you simply dish up a phantom thesis that cannot be reduced to numbers, facts or analysis.

If you now think that the "war" is not reflected by the number of convictions, doesn't it behoove you to produce a figure of the number of non-conviction casualties there have been of the so-called war? Shouldn't it also occur to you that the number of convictions is exceeded by the number of victims of those convicted, and that given underreporting, those convicted probably represent only a fraction of those who are guilty? You don't seem able to integrate either of those blatantly obvious facts into your verdict on the "war on civil liberties."

Irfan Khawaja - 8/4/2006

You obviously have not read any significant part of my "abundant counter-evidence." If you had, you would have realized that (a) the material on underreporting and recidivism cited has nothing specifically to do with New Jersey, and (b) the issues pertaining to New Jersey are generalizable across states that have variants of Megan's Law.

I "scarcely" mention the two categories of act you describe because you scarcely provide an iota of evidence to show that those two categories account for the bulk of prosecutions or civil commitments in the US. Neither does Pariah.

You also fail to mention the fact that while the two categories of act are relatively innocuous considered as general categories, there is no shortage of problematic activity within each category. An 18 year old having sex with a 17 year old is not a big deal. But what about a 19 year old with a 13 year old? What about ten 19 year olds with a 13 year old?

Both you and Pariah group all of these cases together under one rubric to draw plausibility from the unproblematic cases while ignoring the problematic ones. Offering no evidence about relative rates of each sort of act, you somehow mysteriously assert that there is a war going on against the unproblematic cases--insinuating (again without evidence) that these cases constitute the majority of cases. Do they? If so, where is the evidence of that fact?

You employ the same tactic when it comes to nude photographs. Some nude photographs of children are indeed innocuous. Sometimes, innocuous cases are prosecuted. Few would disagree that that is bad. But few would infer from that that a war is on. And few would infer that adults have the inalienable right to photograph children for sexual purposes and profit from their unconsenting nude modeling. Apparently you do. How? On what basis? Neither you nor Pariah deal with this obvious question.

If Pariah's essay is only "about the United States," why does he draw on statutes from other countries to suggest that the US's age of consent is set too high? Obviously, evidence from other countries matters to him for purposes of establishing that a war is in on the US. Judging from your comment, however, comparative evidence only matters when it's convenient for one's thesis. It can be blithely ignored or dismissed when it contradicts that thesis.

As for Pariah's conception of "crime," what he says is that there is a class numbering 2 million of "sex offenders" of whom only .1% are guilty of "extreme harm." Does harm only exist when it is extreme? If not, what is the percentage of the 2 million guilty of less-than-extreme harm? There is no hint at an answer to this question anywhere in what you describe as a "well-researched" article. Why not?

The same author tells us that there have been 4000 civil commitments out of the class of 2 million sex offenders. Inexplicably, the number later becomes "3,493 as of December 2004." It is unclear whether Pariah has figures to show that 507 people have been committed since Dec 04 or has simply decided to round upward because 4000 is a higher figure than 3,493. This ambiguity is evidently the mark of a well-researched article.

In any case, 4000 is .02% of 2 million. That, we are told, is a very high figure indicative of a war against sex offenders as such. Meanwhile the same author tells us that .1% of 2 million is a very low figure when it comes to causation of "extreme" harm. The same author also claims that a 10% recidivism rate is low enough for us to dismiss claims about high recividism in child sex offenders. Is there a principle that unifies these claims in a coherent way—a principle that goes beyond the need to assert, in the face of contrary evidence, that there is a "war" on against sex offenders?

Never mind that 10% is one of the lowest figures cited in the literature on the subject, and that higher figures (available in that archive of material I provided, supposedly only pertinent to Megan's Law in New Jersey) indicate rates anywhere between 10% and 48%.

If a figure of .02% shows that there is a war on against sex offenders, would causation of harm by a full 1% of the sum total of sex offenders show that there is a war on against children by sex offenders? If so, wouldn't a prosecutorial response be in order? If that's so, how could such a response be described as an unjustified "war"?

It would take more time than I have at my disposal to catalogue the nonsensicalities in Pariah's article. But a laundry list would include the following:

1. He has nothing to say about cases of sex offense involving less-than-extreme harm. It is a reasonable inference from what he says that only sex offense causing "extreme harm" should be criminalized.

2. His discussion of recidivism cites the lowest number from the standard range without acknowledging the high end of the range. He acts as though the high range simply does not exist.

3. He doesn't discuss underreporting of sexual crimes.

4. He begins the piece with an apparent denial of free will (paragraph 2), suggesting that choice of sexual proclivity is entirely beyond anyone's control. Unsurprisingly, he offers a defense of pedophilia and date rape that excuses gentle grandfatherly child molesters, ingenuous schoolteachers tricked into having sex with adolescents, geeky men needing "release" with adolescents, and drunken and overzealous frat boys pushing their girlfriends over the line on no basis but that the relevant individuals couldn't help what they did.

Having offered this defense based on stereotypes, he then proceeds to a defense, worthy of Adolph Eichmann, that sex offense can't be wrong because "normal" people do it. It apparently hasn't occurred to the author that "normal" people in that sense can and do crazy things (e.g., commit genocide), and that criminals can commit crimes without sprouting horns and tails and carrying pitchforks.

5. He shows great umbrage that people object to child pornography without evincing either a grasp of why they do or offering a defense of it. He takes offense at the failure to ask questions but apparently has not asked the obvious question: what legitimate purpose is served by inducing children to pose for pornography?

6. Finally, having told us that the only sex offenses worth taking seriously are those that produce "extreme harm," he ends by telling us that a war against sex offenders is on because journalists and others have such terrible things to say about them. The same person who thinks that no rights are violated when children are induced to be photographed nude for profit somehow also manages to think that sensationalist journalism and blowhard blogging is evidence of a "war" against sex offenders.

Thus, no harm is done to a child when he or she is exploited for sexual purposes by adults, but we have evidence of a "war" against sex offenders by virtue of the fact that people say mean things about them.

You said you were "delighted" by Pariah's article. I'd be delighted to see you defend it.

Irfan Khawaja - 8/4/2006

Anyone wanting a bit of balance and perspective on this issue would do well to visit the following website before taking the claims made either in Brady's post or the linked article at face value: The New Jersey Supreme Court case, Doe vs. Poritz, provides a useful contrast to the claims made here. If you want to see how First Amendment rights are brazenly violated in favor of high-tier child sex offenders, read the link provided below, under the heading "Doing the following is inappropriate and may result in prosecution." Of special interest are items 1-3, which (in NJ at least) accompany every notification-flyer regarding the presence of a sex offender in a given neighborhood:

1. Do not share the information in this notification flyer, or the flyer itself, with anyone who is outside of your immediate household.

2. Do not share the information in this notification flyer, or the flyer itself, with the media.

3. Do not post the flyer in a public location, or display it in a place where it is visible to persons who are not members of your household.
What these items tell us is that it is a crime in NJ to promulgate public information about whether one's next-door neighbor is or is not a sex offender--even if he has been convicted of a high-tier sex offense, and even if the police have informed one of his status as a sex offender. In other words, it is a crime to discuss information that is already in the public domain. Why? Because discussing it would violate the "rights" of once-convicted sex offenders not to have their crimes discussed in public. Incidentally, item 3 would be violated by posting the flyer on your refrigerator, since a guest might see it there. The result, which I've seen first-hand, is that families can move into an apartment complex where a high-tier previously-convicted sex offender currently lives. Their children play unattended in the vicinity of the sex offender, but no one is allowed--by penalty of law--to say a word to them until they get official notification from the police department of the sex offender's presence, sometimes weeks after they move in. And I am not referring here to "sex offender" in any ambiguous way, but to convicted child molesters in the ordinary, paradigmatic sense. Incidentally, is one's babysitter a member of one's "household" pursuant to the regulations prohibiting disclosure of the identity of a sex offender? How about the babysitter's parents? Should one invite a babysitter to take care of one's children but not inform her or her parents of the presence of a top-tier sex offender living next door? I leave such casuistic questions to the "civil libertarians" opposed to the "war on sex offenders."

Irfan Khawaja - 8/4/2006

Here, by the way, is one passage from the counter-evidence I cited. I'm very curious to know how it applies only to New Jersey:

Studies describing recidivism by sex offenders indicate the severity of the problem the Legislature addressed in Megan's Law. Studies report that rapists recidivate at a rate of 7 to 35%; offenders who molest young girls, at a rate of 10 to 29%, and offenders who molest young boys, at a rate of 13 to 40%. Further, of those who recidivate, many commit their second crime after a long interval without offense. In cases of sex offenders, as compared to other criminals, the propensity to commit crimes does not decrease over time. . . . [I]n one study, 48% of the recidivist sex offenders repeated during the first five years and 52% during the next 17 years. . . .

As Doe acknowledges, successful treatment of sex offenders appears to be rare. He correctly notes that very few offenders sentenced to ADTC [Adult Diagnostic and Treatment Center] ever meet the dual standards required for parole from ADTC. Indeed, according to Department of Correction's statistics between 1980 and 1994 only 182 inmates were paroled from ADTC. While plaintiff was among the few who were released as "capable of making an acceptable social adjustment in the community," the large majority of ADTC inmates leave only after having served their maximum sentences. During the same time frame, 1980 - 1994, 712 inmates were released from ADTC at expiration of term.

[Response Brief for Attorney General at 6-8 (citations omitted).]

Further information gleaned from similar studies strongly reinforces the foregoing:

Sexual crimes are notoriously underreported. Such data as are available, however, demonstrate that their impact is substantial and widespread. A nationwide sampling of households by the Justice Department for the years 1987 to 1991 indicates that every year nearly 133,000 women in the United States age 12 or older were victims of rape or attempted rape, 44% committed by strangers. Twenty-one percent of the total involved weapons (29% of stranger rapes), and 47% of all victims (60% of victims of strangers) sustained injuries in addition to the rape itself. The Justice Department also estimates from police reports that nationwide about 17,000 girls under age 12 were raped in 1992, 54% by non-family members (acquaintances and strangers). And based solely on incidents reported to the police, a Justice Department study shows that in 1988 as many as 4,600 children of both sexes were abducted or detained by non-family members, nearly always by force (85-87%) and usually with a weapon (75-85%), and more than two-thirds of these children were sexually assaulted.>

Irfan Khawaja - 8/4/2006

My post challenges the absurd thesis that there is a "war" on against sex offenders, which is the basic assumption behind both your post and the linked article. The Megan's Law page to which I linked gives abundant counter-evidence against the idea that there is a war on, as well. And the Doe vs Poritz case I mentioned provides counter-evidence to Pariah's claim about rates of recidivism.

You claim that civil libertarians are silent on the matter of sex offenders. In fact, the ACLU has consistently opposed Megan's Law, and still does, and its lobbying is responsible for the inclusion of the sort of free speech-violating administrative provisions in Megan's Law that I cited. Additionally, since the passage of Megan's Law, contrary to your claim about "precious little opposition" and apart from the ACLU, there's been a loud debate on the subject throughout the US--and from what I read, in Britain as well. The page to which I linked cites several court cases challenging the law or its administration. How are those cases compatible with the "war" you describe or the dearth of opposition you cite?

What the cases provide--and what neither you nor Pariah provide despite your description of his article as "well-researched"--is the argument for the other side. What it also misses is (as I've blogged elsewhere), in places like Pakistan, child molestation cases simply go unreported to the tune of hundreds or thousands a year. Take an international focus, and you see the absurdity of the characterization of a "war on sex offenders."

There are no doubt miscarriages of justice with respect to sex offense cases: a close friend of mine was on the receiving end of one a few years ago. (In fact, I myself have raised objections to the way statutory rape is dealt with on my own blog.) But there are miscarriages of justice with respect to every category of the law. It is tendentious in the extreme to use this commonplace as evidence of a "war" against offenders, and then to put the very idea of an "offender" in scare quotes as though the phenomenon was some sort of confabulation.

What neither you nor Pariah have come to grips with is that the opposition to criminal prosecution of sex offenders is based on some pretty weak arguments (dealt with at length in the cases I cited and in many cases I haven't cited). The only thing that you have going for your case are marginal cases involving legal age restrictions. How do those cases constitute a "war"? If you abolished them all, would you still be left with a war? That's the "wider issue" that neither you nor Pariah have dealt with, but it is the fundamental issue, whether you deal with it or not.

Irfan Khawaja - 8/4/2006

Boy, talk about an evasion--or a series of them. You don't deal with a single argument I've given, but you somehow manage to dismiss them all with the wave of a hand. Sorry, but it won't do.

Frankly, even your dismissive wave turns out to be senseless. You say that a war is on against "millions" of Americans. Where did you get the figure of "millions"? Pariah himself puts the total figure of sex offenders at two million. The word "millions"--in the plural-- would only be appropriate if all two million sex offenders were innocent.

So we reach at last the reductio ad absurdum that structures your view on this topic: you actually seem to believe that all two million of those offenders are innocents. Of course, you also find yourself acknowledging that some of them are guilty. Funny how self-contradiction works, and what it reveals.

Mark Brady - 3/17/2006

I doubt that many (any?) other people are following our exchange but here goes. Pariah raises several important issues that should be of real concern to those who identify as libertarian or civil libertarian. He also provides supporting evidence for his assertions. You do not address many of these arguments. I thought they were straight forward but it seems I'll have to spell some of them out for you.

1. Pariah describes how "sex offenders" are scapegoated as pedophiles and child molesters even though most "sex offenders" were not convicted of offenses involving pre-pubescent children.

2. "This scapegoating also requires public exposure and shunning, even of those who dare defend the civil liberties of pedophiles and sex offenders or challenge attacks on them. In particular, public wrath is displayed against those who would challenge 'age of consent' laws, which are higher in the United States (now effectively 18 in all states due to Federal statutes) than in most other societies. . . . All sex between persons under 18 and those over 18 (or 21) thus becomes 'abuse,' since there is the myth that underage persons are simply not capable of consent.

"Journalists and scientific researchers who challenge this construct—or who defend some relationships between adults and minors as not being abusive—face severe consequences."

3. "Nowhere is censorship and shunning greater than against those who would describe or depict childhood or adolescent sexuality, or mere nudity."

4. "Until the 1980s, the notion that any offender would be forced to register and be tracked—and publicly shamed—for life—went against the American notions of fairness and rehabilitation."

5. "Another feature of recently passed or just introduced sex offender laws is to do away with all statutes of limitation, and to force registration and other restrictions on hundreds of thousands of people not now required to register. . . . Several states have introduced bills to make it a felony for family members and others, with possible punishment of years in prison, to refuse to reveal the whereabouts of sex offenders."

6. "Adding insult to injury, 'children,' that is persons under 18, may also be labeled sex offenders, required to register and sometimes face life-long monitoring and various forms of shunning and shaming. . . . Estimates are that more than thirty-five thousand children and adolescents have been convicted of sex offenses and are required to register."

7. "The worst deprivation of rights comes in the form of life-time civil commitment of sex offenders after incarceration. Seventeen states have some version of this measure, and 21 more states are considering it. . . . As Mark McHarry wrote in his thorough summary in Z Magazine, November, 2001, civil commitment procedures deprive citizens of virtually all their Constitutional rights."

Mark Brady - 3/17/2006

You shouldn't take my recommendation of an article as an endorsement of everything the author writes. Neither is it incumbent on me to defend the author against all criticisms. From time to time I provide a recommendation and link because I believe the article in question is worth reading. I thought, and still think, that Pariah discusses some important issues and raises some real concerns of interest to those who identify as libertarian or civil libertarian. Whatever the merits of your case against particular aspects of his statistical analysis (and I don’t have the time to investigate the matter and write up my opinion), what you wrote fails to address most of the arguments that he makes in his article.

One further thought. The number of people convicted of drug offenses is much smaller than the number of people whose civil liberties are threatened and/or violated by the state in its War on Drugs. I suggest it is a similar story with the War on "Sex Offenders."

Mark Brady - 3/8/2006

I suggest that Pariah’s essay raises several important issues that go way beyond the analysis and data that you offer in your two most recent posts. Nothing you write denies the war that federal and state authorities are waging on the civil liberties of millions of Americans under the guise of protecting children. The now discredited satanic cult child sex panic is but one particularly egregious example of state power run amok.

Mark Brady - 3/6/2006

Your "abundant counter-evidence" refers only to Megan’s Law in New Jersey and does not really address the substance of Pariah’s article. You scarcely mention the consequences of a federalized age of consent at eighteen and the concomitant criminalization of consensual sex involving teenagers. And you do not broach the question of "child pornography," which these days is defined so broadly as to include photographs and other representations, including computerized images, of nude or even clothed adolescents that appear to be under 18. Pariah’s essay is about the United States, not Pakistan, so it is no criticism to say that it misses child molestation cases "in places like Pakistan." Pariah is discussing a war waged on U.S. soil by federal and state police, courts and legislators against the thousands of people who have been labelled "sex offenders" but who, as far as I can tell, have committed no crime as libertarians define that term.

Mark Brady - 3/6/2006

If what you say is correct, it would appear that New Jersey law is open to challenge on First Amendment grounds.

That said, your point doesn't address the wider issues raised in either my post or the article to which I linked.