In a comprehensive, well-researched article, UCLA Professor Catherine L. Carpenter, details the world of injustice into which all those with the misfortune of being labeled as “sex offender” must now endure. The article, “Blanket Exclusions, Animus, and the False Policies They Promote,” deals primarily with the sex offender registries but also exposes a myriad other aspects and abuses of sex offender laws, an area that has preoccupied Carpenter for more than two decades.
Carpenter believed that a substantive due process challenge was on the horizon in 2012. However, she asserts, “It turns out I was wrong.” With momentum from two U.S. Supreme Court decisions in 2003 (Smith v. Doe, 538 U.S. 84 (2003), and Conn. Dept. of Public Safety v. Doe, 538 U.S. 1 (2003)), registration and notification laws continue to flourish, and civil regulatory measures continue to expand exponentially with virtually no checks and balances. The Scarlet Letter is alive and well in modern day America.
These statutory acts, based largely on public fear and hysteria, were promulgated by the criminal justice system, then propagated and sensationalized by the media. In recent years, they serve to create consensus in a bi-partisan society as a need has grown to find a new “public enemy number one.” With the legalization of marijuana, and drug addiction viewed as a behavioral disease, now receiving more sympathy than reprisal, the nation has grown ripe for a new “bogeyman,” an enemy that we may all “love to hate.”
Of course, violent, hands-on sex offenses are egregious and should be addressed appropriately, and there is no greater cause than that of safeguarding our children, but the “moral panic” has taken our laws and punitive measures far beyond this category of criminality – it has destroyed the lives of many non-violent individuals whose “thought crime” was comprised of little more than a preoccupation or fantasy.
Sex offenders of every ilk have become the nation’s perfect scapegoat because fear justifies greater enforcement, and enforcement justifies the need for more power and control – a never-ending cycle of social dominance. The narrative has driven a hatred toward any and all sex offenses regardless of the crime, and it has done so with equal opportunity. The disgust that sex offenses generate cuts across all party and ideological lines and serves to bring rival factions to the bargaining table for additional legislation and increased funding – much of it premised upon fear-mongering that is often exaggerated or patently untrue.
The term “sex offender” became a catch-all phrase for a vast group of individuals with varying degrees of culpability, from the most innocuous (urinating in public, skinny dipping in a lake, or making an obscene or inappropriate gesture) to the most heinous (sexual violence against another without their consent). Unfortunately, the line between these extremes is not merely blurred; it is virtually non-existent. Possession of illicit pornography that might depict an image of a teen will often receive a nearly identical term of imprisonment to that of a violent and heinous sexual molestation crime levied against an infant or toddler. And following incarceration, each of these felons will be placed side-by-side on a public registry with very little information to discern the difference in their conviction. The registries have simply become a “one-size-fits-all” database for the entire world to view. Replace the term “sex offender” with any other category of persons or cultural group and imagine the repercussions from people decrying inequality, discrimination, and injustice.
It is estimated that as many as 26% of the nation’s newly minted “sex offenders” are under the age of 18 – and minors, due predominantly to social media access and “sexting,” are now the fastest growing segment to enter the sex offender registry. The youngest, a 9-year-old boy, has been fated to enter the registration for life after authorities determined that he was guilty of “playing doctor” with his 4-year-old sister.
“Moral panic,” as Carpenter points out, is nothing new. There were similar social spasms against homosexuality, which, until only a few decades ago, was illegal and prosecutable. There were backlashes against those with the HIV/AIDS virus as well as juveniles who peddled drugs in the inner cities. But, “Unlike the others, [the moral panic generated by sex offenses] is not fleeting, but seems to gain ferocity with the passage of time.” Keri Burchfield, Lisa Sample, and Richard Lytle, Public Interest in Sex Offenders: A Perpetual Panic?.
As the court wrote in Millard v. Rankin, 265 F.Supp.3d 1211, 1214-17 (D. Colo. 2017), “The fear that pervades the public reaction to sex offenses – particularly as to children – generates reactions that are cruel and in disregard of any objective assessment of the individual’s actual proclivity to commit new sex offenses.” It is precisely this objective assessment that is at stake. There currently exists no empirical data to show that the viewing of illicit pornography or other “fantasy crimes” qualifies as a “gateway” to “hands-on” victimization. The court goes on to explain, “[Registrants] face a known, real, and serious threat of retaliation, violence, ostracism, shaming, and other unfair and irrational treatment from the public.”
Recent psychological studies, undertaken in Canada, Switzerland, and the U.S. (through the Sentencing Commission), concluded that on average only 4% to 6% of “sex offenders” ever go on to commit new sex offenses. That number drops considerably to averages between 1% and 3% with those over age 50, a result of “aging out” of the offensive behavior. Yet, the label with which they’ve been tagged, and which is based on junk science from the 1980s, promulgates false conclusions from previously flawed studies such as the infamous FMC Butner study that has been proven to be flawed. Nevertheless, the outsized influence of these flawed studies persists and contributes to pervasive societal animus toward offenders that dooms them to perpetual guilt and unproven assumption that there is a high likelihood they will reoffend. Whether it is ridicule or abuse at the hands of prison guards, fellow prisoners, or the public, sex offenders become trapped in a constant shaming cycle from which they cannot extricate themselves.
The social obsession with keeping track of a person with non-mainstream sexual proclivities or paraphilias may have begun as early as 1947 when California instituted a registry for homosexuals, an attempt to criminalize the behavior of gay men. Back then, such registries were not made public and were only accessed by law enforcement. As Carpenter explains, “[that] registry, with eleven registrable offenses and no public notification is a far cry from the breadth and scope of ... registration schemes today, which are complex and mammoth, often including forty registrable offenses, residency and presence restrictions, GPS satellite monitoring, and frequent in-person registration.”
But, the unbearable and arguably unconstitutional burden of the sex offender registries, which the Supreme Court ruled not to be punitive, and which are as some have maintained, an unjustified extension of carceral punishment and a violation of due process, is not the only obliterative consequence incurred by the “sex offender” label. Smith v. Doe as well as Department of Safety v. Doe each “‘green lighted’ the ensuing wave of increased governmental burdens and prohibitions protected by the label of civil registration.” This wave eventually rippled out and across the entire legal system. Basically, as far as the courts and law enforcement are concerned, it is “open season” on sex offenders.
Internet child pornography offenders who are considered the “low-hanging fruit” by many law enforcement agencies, and easy pickings for federal cyber task forces acting under the authority of the FBI, ICE, and even NCIS, have become the boon for arrest and conviction quotas. As cheap and facile prosecutions, they provide a publicly supported harvest – a turkey-shoot fodder for the criminal and carceral system.
Today, sex offenders comprise the largest growing criminal category of prisoners in the federal prison system. They make up a little over 10% of the Bureau of Prisons’ incarcerated population. Only drug offenders and illegal immigrants are convicted at higher rates, but that divide is rapidly closing. Currently, of the nearly 16,000 sex offenders in federal custody, nearly all face exclusions from every single program of reform Congress has implemented, including the Second Chance Act of 2007, the First Step Act of 2018, and most recently, the CARES Act of 2020. Basically, sex offenders are ineligible for every type of sentence reduction in state and federal prison systems.
The data show that a large majority of sex offender cases demonstrate no actual violence or hands-on exploitation. Of these across-the-board exclusions, as Professor Carpenter explains, “not one demonstrates a rational relationship between the blanket exclusion and the state’s goal to protect the safety of the community. Instead, each law described [here] suffers from an important failing: each is wildly over inclusive and untethered to public safety concerns.” As Carpenter points out: “the term ‘non-violent’ [which applies to great numbers of those classified as “sex offenders,” particularly those with pornography or enticement classes] is in the eye of the beholder.”
The exclusion of sex offenders from post-incarceration housing and welfare programs is not the only set of exclusionary fates these offenders will face over their lifetime. Along with denial of good-time credits and consideration for parole in states where that system is still available, those labeled as “sex offenders” are also shut out of all government assistance programs. In Oxnard, California, where a deadly boat fire killed 35 people, “a registrant who lost family members ... was statutorily ineligible for recovery from the Victim’s Compensation Fund only because he had been convicted of a sex offense.”
In the wake of COVID-19, and specifically those facing tremendous risk within a congregate setting like prison, nearly every sex offender applying for compassionate release from the courts has been denied under the auspices of “danger to the community,” regardless of their category of crime, their criminal history, their conduct while incarcerated, or most concerning, regardless of their age, health, and level of vulnerability. In other words, sex offenders have ostensibly been given a “death sentence.” Granted, the courts have a duty and obligation to evaluate societal threat should they release a violent and unstable offender into society, but non-victim sex offenders are criminally categorized with the likes of terrorists, murders, kidnappers, and arsonists despite any evidence of violence in their evidentiary profile.
Professor Carpenter concludes that the measures taken against sex offenders throughout the system – before, during, and after incarceration, and in particular, as registrants, are saddled by a growing and vitriolic social animus. The system has propagated an irrational, growing, and socially destructive disdain or disgust for all who fit within this category as “moral outcast.” Carpenter describes the U.S. as “suffering from what sociologists describe as a ‘moral panic.’ It is a societal reaction that is wildly out of proportion to its factual predicate but is nonetheless stoked by elected officials, affirmed by courts and relayed by the media.”
This underlying idea was expressed far more succinctly by a woman who defended the actions she and her neighbors took when they spotted a man named Haskett, a registered sex offender, who innocently fell asleep in his car in front of his girlfriend’s home because he had arrived too early to pick her up. The neighborhood “busybodies” promptly got on the phone and called police and the FBI. “Don’t mess with suburbia,” the women later proudly proclaimed, “because we will chew you up and spit you out.” Carpenter points out “a disturbing takeaway from this event is that imagined threats take precedence over discerning the truth.”
As to the source of moral panic that generates this profound animus toward persons saddled with the sex offender label, it is a powerful stream running under American society and overflowing from a multitude of “morally righteous” tributaries. One of these tributaries was the fierce militant feminism movement of the late 1970s, championed by the likes of Andrea Dworkin. Her contributions to the movement inspired a rash of anti-pornography laws.
Another wellspring feeding the anti-pornography narrative has flowed from the evangelical ideology, the roots of which go back to colonial America – to the Quakers and the Puritans. It has been this group’s dim view of sexual instincts or all matters sexual as unclean and sinful but tolerated only as a necessary aspect of the human condition. There is a tributary that leads back to the 1980s, viz., the “Satanic panic” kicked off by the infamous McMartin Daycare scandal, which rocked America and propelled the ideas of lurking Satanic pedophiles and the concept of planting false memories within the alleged victims. In that case, a nation was shaken despite the fact that none of the McMartin defendants were ever found guilty.
There was, in those seminal years, a backlash against the freewheeling amorality of the 1960s with its sex and drugs and wild times. None of this should condone the proliferation of child pornography, but the act of viewing illicit material should be given the same behavioral considerations to that of drug addiction, alcohol abuse, gambling, or an eating disorder. Long prison sentences and lifetime registration only exacerbates this psychological maladaptation.
Through the 1980s and 1990s, American society generated a kind of superficial neo-Victorianism, politically correct ideology that became irrationally obsessed with public safety by creating a fear factor that would become known as “stranger danger.” Mainstream hungered for a new and improved “bogeyman” in whom the masses might find common disdain. From this ideological shift, society began to bear a strange new fruit – a Kafkaesque-style initiative toward sex offender legislation that would be expressed in 19th century language. That legislation would be supported by a series of draconian sentences designed to prosecute thought crimes with decades of imprisonment.
As a society, we feed off of conspiracy theories such as the likes of the current QAnon. This contrived entity exists in the minds of conspiracy theorists as a cabal of satanic pedophiles destined to take control of the nation from their lair. In this same light, prostitution has been rebranded as “sex trafficking” – a term that titillates the imagination and is designed to further vilify and castigate. Other strange occurrences have arisen out of the “moral panic.” Incidents like “Pizzagate” bubble up from the cauldrons of a bored, but easily influenced imagination, and all with the intent to encourage individual vigilantes to take the law into their own hands by shooting up an actual pizza shop in an effort to free the nonexistent child sex slaves being held in an imaginary basement.
This may sound like an anomaly, but the fact is, a far greater number of violent crimes transpire at the hands of vigilante neighbors lashing out against a neighborhood sex offender registrant than that of documented violence from registrant re-offenders themselves. Sex offender homes are fire-bombed, offenders are assaulted in their driveway, and offender families often receive death threats. The fact is, sex and sexual repression are at the center of this animus, a desire to stamp out all that is “impure” and “exploitative” and to extol and protect a mythical sense of victimization, even where there is none.
A prime example of the propaganda machine rests within one of the nation’s leading criminal justice organizations, a nonprofit known as the National Center for Missing and Exploited Children (“NCMEC”). The organization, originally guided in the 1980s by a group known as “Team Adam,” a steering committee named after the murdered son of John Walsh, one of the organization’s founders, was developed to maintain a database of missing and exploited children and to work side by side with law enforcement in an effort to identify and recover victims of violent crimes. Ostensibly, this cause is both noble and significant; however, much of the data generated to further its cause and funding have proven rather deceiving.
According to author, Roger N. Lancaster, in his blockbuster book, Sex Panic And The Punitive State, NCMEC proclaims that more than 750,000 children are reported missing or abducted in this nation every year – a shocking phenomenon that, even at first glance, simply does not add up. This number of missing and exploited children would suggest that Amber Alerts would be blaring every few minutes on street corners across the country, and every broadcast news show in the nation would be dominated by reports of hundreds of neighborhood children being snatched in broad daylight from parks and malls.
According to Lancaster, the actual number of real-life, stranger-danger abductions across the nation is likely fewer than 150 per year, a far cry from the panic-inducing 750,000 figure. This hyper-inflated number, it turns out, includes every call made to law enforcement by a worried parent when a child stays over at a friend’s without notice or a non-custodial parent fails to return a child to the custodial parent by 5 p.m. on Sunday. It includes every child who decides to run away from home for a few hours, and it even includes panic reporting when a child or teen simply fails to answer their smartphone. Granted, NCMEC is a needed and worthy organization, but its data reporting, like many other agencies, is seemingly designed to alarm the public rather than genuinely inform it.Ultimately, what motivates the animus against sex offenses is a deep and abiding paranoia in American society, not just about sex, but about all crime, about anything that is perceived as an existential threat to public safety. As evidenced by the commercial success of television programming dealing with crime or those documentaries that rehash brutal murders and mayhem from decades past, American audiences are morbidly fascinated with crime, obsessed with it, mesmerized, even though statistics fail to support any evidence that we live in a dangerous world. We begin to believe in a reality that suggests our real-life dangers need to be neutralized, promptly and viciously quelled, even when the stories and programs we consume are merely designed to entertain. Some explain this obsession with crime drama and reality TV, particularly when it deals with sex crimes, as a thirst in the public for a sense of resolution and closure. In these programs the perpetrators are patiently tracked down, caught and prosecuted, or at times, given a good beating by the good guys. But this explanation does not completely justify our salacious and vicious need for punishment and reprisal. Digging deeper, one finds disturbing associations between crime shows and their viewing audience, a vicarious lust to be part of the events, to experience the criminal act, the sleuthing, the hunt, the capture, and the takedown.
Despite what ill-informed pundits and media propaganda declare, statistics continue to affirm that sex offenders show relatively low rates of recidivism (3% for those viewing child pornography and 1.5% for those over age 50). New York state confirmed a 2.1% recidivism rate overall in relation to prosecuted sex offenders. Yet, courts and prosecutors continue to cling to the notion that sex offenders recidivate at rates that are “frightening and high” despite the utter lack of empirical data to support such a provocative claim. What is becoming clearer as we enter the third decade in this 21st century is that “sex offenders are not a homogeneous unit.” Grouping internet-viewing crimes with hands-on violent crimes in a “one-size-fits-all” uniformity produces misleading results on just how dangerous any one criminal proclivity may be compared to another. The practice of one uniform grouping actually desensitizes the public to the severity of heinous acts associated with violent crimes like rape or child molestation.
Challenge to Registries
Carpenter advocates a challenge to sex offender registries under the Fourteenth Amendment. The registries, which many critics assail as ineffective legal tools, serve only a skewed punitive purpose. Along with the exaggerated incarceration penalties faced by people labeled as sex offenders, such laws fulfill no rational legal purpose. She goes on to suggest, “blanket exclusions [and sanctions] are a denial of substantive due process because of arbitrary and capricious governmental action that is perpetrated only by full-throated animus.” Still, Carpenter acknowledges that such challenges are an uphill battle and are met in the courts with what she describes as a “stony silence.” Laws that fulfill no rational legal purpose are unconstitutional, Carpenter says. And yet, the prosecution and persecution of “sex offenders” continues unchecked. The media continue to fuel the “full-throated” animus with rallying cries of “stranger danger” alerts. It has long been a known fact that most child victims of physical sex offenses are at the hands of a family member or close friend. Sex offenders in general have become the latest social scapegoats, the pariahs, those with the scarlet letter regardless of their rehabilitation or contribution to their community.
Carpenter goes on to examine In re Taylor, 343 P.3d 867 (Cal. 2015) (overturning residency restrictions in San Diego County based on a substantive due process challenge). In that case, the California Supreme Court concluded, “[The law] thus has infringed their liberty and privacy interests, however limited, while bearing no rational relationship to advancing the state’s legitimate goal of protecting children from sexual predators, and has violated their basic constitutional right to be free of unreasonable, arbitrary and oppressive official action.” Unfortunately for most of our nation’s displaced citizens on the registry, Taylor is the exception and not the norm.
“Legitimizing private animus should not be condoned,” states Carpenter. “It raises the question to what extent moral panic targeting [sex offenders] has morphed a community’s private animus into legislative enactments.”
Unfortunately, this “private animus” is not so private. A large swath of the population which includes judges, prosecutors, juries, attorneys, and most of the American legal establishment, has very publicly and exultingly fallen under its irresistible and irrational spell. Courts refuse to look at the particulars of a sex offense and instead choose to define every case with broad strokes and boilerplate legalese. People are labeled as “sex offenders” by the thousands each year, and new cases continue to fill our courtrooms, our prisons, and our registries. One report estimates that the FBI has identified more than three million personal computers throughout the U.S. that contain some form of an illicit image (child pornography), but it suggests that the Department of Justice simply does not have the manpower or wherewithal to arrest and convict them all. Sex offender convictions have now become a matter of bed space and quotas.
A Blind Eye to Data
Granted, these are individuals who may have exercised poor judgment, who may have broken societal laws, and who certainly require redirection and rehabilitation. Like any addictive condition, the proclivity or preoccupation with fantasy crimes, even the most distasteful, qualify as a behavioral condition first and should be treated as such. This is the approach taken by developed countries such as the Netherlands, Germany, Switzerland, and Norway where sex offender incarceration is almost non-existent, recidivism rates are extremely low, and counseling initiatives are commensurate to the severity of the victimization. The American justice system simply refuses to consider the empirical data at its disposal and turns a blind eye to the success of other advanced nations.
Reform initiatives in the U.S., though bravely and audaciously sought by many like Professor Carpenter, are still sadly nowhere in sight.
About the author: Michael Fortino is an acclaimed author and keynote speaker on Leadership and Change, having spoken before audiences as large as 14,000. Over his career, he appeared on the front page of the Wall Street Journal, USA Today, and in other publications. Fortino was featured on Good Morning America and the Tonight Show. See justiceinitiativeUSA.com.
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