11 minutes to read

Boys will be boys. Kids will be kids. Children are not yet adults. And the adults running our country are insane.

[R]esearch has suggested that—for better or worse, and despite laws already prohibiting the practice—the majority of teens have engaged in sexting, though most don’t know it could land them in jail. A 2014 study by Drexel University, for one, found that more than half of undergrads who’d participated in an anonymous online survey admitted to sexting when they were teens, with almost 30% saying they’d included photos, and over 60% revealing they were unaware such acts violated child pornography laws.

Now comes a bill to make it a federal crime, punishable by anywhere from 15 years to life in federal prison. It somehow managed to pass the House of Representatives. Our representatives.

Thankfully, Unicorn Booty is on top of the story.

There is so much wrapped up in this story I almost don’t even know where to start. 

First off, let’s get one potential canard out of the way immediately: this isn’t a “OMG, those fucking Republicans!” story. The House of Representatives, as of April 25, 2017, was comprised of 238 Republicans. And 193 Democrats. As only 53 Democrats voted against the bill, that means that 140 voted in favor of it.’Nuff said on that point.

Well, maybe not.

Too many times, it seems that people think it’s those hard-ass Republican tough-on-crime people who are ruining our country.  But, frankly, it’s not just them. It’s the Democrats, too.

And you. You’re also to blame. Because you don’t write, or call, to inform your representatives what you think about this.


Another canard tucked away in this news story has to do with the whole concept of sex offender registration.

Under the present law, any individual who violates its terms or attempts or conspires to do “shall be fined under this title and imprisoned not less than 15 years nor more than 30 years.” Meaning, as The Stranger’s Dan Savage explained, “It’s not just sexting—actually sending or receiving sexts … Your kid could get 15 years for attempting to send or receive a sext … [or be] forced to take a plea deal offered by an overzealous prosecutor: probation, community service, and having to register as a sex offender for the rest of their life, which will make it impossible for your kid to get an education, find a job, or a place to live.” Savage also reflected that even the latter outcome effectively amounts to “a social death sentence—just the threat of which has prompted more than one teenager to kill themselves.”

Let’s not kid ourselves about sex registration. Despite repeated court rulings, including from the United States Supreme Court, that “sex offender registration is not punishment,” it absolutely is punishment.

The [U.S. Court of Appeals for the 6th Circuit] court added there was no credible evidence that such laws prevent recidivism or really protect the public. Rather, Batchelder wrote, they are “retributive,” marking “registrants as ones who cannot be fully admitted into the community.”

The law “brands registrants as moral lepers solely on the basis of prior conviction,” she wrote, consigning them to “years, if not a lifetime, of existence on the margins, not only of society, but often … from their families, with whom, due to school zone restrictions, they may not even live.”

This point was driven home to me—not that I needed that—not long ago when an allegedly-high-level prosecutor in one of the counties where I practice criminal defense objected to my request for a continuance to gather evidence about my client’s good behavior, and rehabilitative efforts, in a case where he had once been ordered to register as a sex offender. The registration order was reversed by a higher court for technical reasons, and we have an opportunity to re-argue whether the judge should re-issue the order. The prosecutor argued that the judge really had no jurisdiction on the remittitur to do anything (like granting my continuance) but to “sentence” my client to register. She was very clear that she wanted him to be punished. [1]I got the continuance.

“Sentencing” is a term we use for handing down punishment. Arguments to the contrary, including those from the United States Supreme Court, are pure horseshit. There is nothing constitutional about the restriction of the liberties of human beings based on your fear that they might commit future crimes. That’s Minority Report thinking there.

But intellectually-dishonest judges have continued to hold that sex offender registration is not punitive because, as the United States Supreme Court said in 2003,

If the intention was to impose punishment, that ends the inquiry.

In other words, if the intention was to impose punishment, that’s unconstitutional. Can’t do it; it’s all over.

So everyone, including the United States Supreme Court, puts their fingers behind their backs, crossing them, while they utter the magic words,

The intention here is not to punish.

One reason the Court thinks this is okay is because,

First, the regulatory scheme, in its necessary operation, has not been regarded in the Nation’s history and traditions as a punishment. The fact that sex offender registration and notification statutes are of fairly recent origin suggests that the Act was not meant as a punitive measure, or, at least, that it did not involve a traditional means of punishing.

Now there’s a piece of logic for you. Nobody in the history of this nation, which was founded on constitutional principles, ever thought to use sex offender registration as punishment—because it violates the principles of the Constitution—until people began to forget what the Constitution stands for. Then, fairly recently, the government became powerful enough to trounce all over the Constitution, and, the people having forgotten the words of Benjamin Franklin, trounce it did.

But the fact that no one in their right—nor especially their left—mind would have considered using sex offender registration as a punishment doesn’t make it not so. If you’ll forgive the veiled pun, sometimes a cigar is just a cigar. Or maybe, if it walks like a duck, swims like a duck, and quacks like a duck, it’s probably a duck. In the sense that it’s a restriction on liberty, and turns people into social lepers, it’s punishment. In the sense that this touches on society, it’s indeed “civil”—if we were only braver, and slightly more coarse, we’d cage sex offenders, head for Molokai, and push their cages off the side of the boat before arrival, right? We don’t do that, so it’s “civil.”

It’s still punishment. 

Sentencing someone to homelessness, destitution, [2]As an added bonus, sex offender registration can cost money, which sex offenders don’t have. This can result in failure to register, which leads to further imprisonment. and potential target practice for vigilantes, is only said not to be punishment by people who either don’t understand words, or don’t understand what sex offender registration does to a person’s life.

What about what was done to the victims’ lives?

Exactly. That’s what punishment is about. Don’t tell me sex offender registration isn’t punishment. You might think that it’s a just, fair, and fully-deserved punishment. Okay: you and I disagree. But don’t try to tell me it’s not punishment regardless of what the legislatures “intend.”

As for what is allegedly intended—making the world safe from sex offenders—it’s ineffective at doing that.

[T]hough there is an abundance of empirical data about sex offenders and reoffending, our policies are created without reference to the data. Rather, our policies are based on anecdotal information and inaccurate beliefs about sex offenders and reoffending. As a result, current policies do not address the problems they are seeking to correct. In most instances, the policies are ineffective; in many instances, they also create conditions that may increase the risk of reoffense.

Forget the fact that too often people who shouldn’t be on sex offender registries  [3]You really need to read that story. Too bad the poor girl wasn’t a cop. Of course, when it comes to committing sex offenses, cops get all kinds of passes. end up there anyway because of our “tough on crime”—and even tougher on “sex” crimes—attitudes. This includes people who aren’t “abnormal” in terms of sexual desires, or activities. People like the two 17-year-olds about to turn 18, who have sex with each other; or even the person who just turned 18, having sex with their still-17-year-old significant other. Sometimes, it’s people who peed behind a bush, and got caught doing it. Sometimes it’s curious children. [4]When I was a child, this was referred to as “playing doctor,” or “you-show-me-yours-and-I’ll-show-you-mine.” And I knew quite a few kids who did it. One difference between that and the story I just linked: the ones I know all involved kids who were willing participants. There are plenty of other “innocent” ways to end up on the registry.

Even more important, studies have shown that recidivism among sex offenders is increased by sex offender registration requirements.

In other words, making people register as sex offenders can cause them to commit new crimes. This has a destructive effect not just on the lives of registered sex offenders, but by creating new victims: victims who would not have existed, were it not for the existence of punitive sex offender registration requirements.

Notwithstanding this problem—and despite what the United States Supreme Court believes, either out of ignorance, or intellectual dishonesty—those who commit sex crimes have a lower rate of recidivism than those who commit other kinds of crimes. [5]And that article just linked also points out that recidivism rates can be increased by registration policies.

“Oftentimes we’re very fearful of people who commit sexual offenses,” she said. “Unfortunately the policies put in place don’t often evaluate what keeps people from re-offending and what we can put in place that will make it less likely that they will offend.”

Our knee-jerk reactions to “sex offenders” prevents us from considering what would help keep us from putting people into that category who don’t belong there, and also keeps us from doing what would keep us safe from people who might. It leads us to embrace counter-productive mythological thinking.

And now that the United States appears to be in the throes of a full-blown moral panic over (almost) all things sexual, whether on college campuses, or via bogus social-panic-inspired stories of “sex trafficking,” or elsewhere, some want to make things even worse.

As I said at the start of this article, the House of Representatives has passed the ironically-named “Protecting Against Child Exploitation Act of 2017.” The irony of this bill, which would apply equally harshly to an attempt, or a conspiracy, [6]This is a loaded term that requires a whole new blog article to explain its evils. But, as Unicorn Booty notes,

When [Representative] Scott says “an attempt or conspiracy,” he means that if 15-year-old boy just asks their 15-year-old boyfriend or girlfriend to send a picture of their genitals, they’re already guilty of a crime, even before they get a picture. And if the boyfriend or girlfriend sends the picture, they’re guilty of a crime too.

, is self-evident:

Under this law, teenagers who engage in consensual conduct and send photos of a sexual nature to their friends or even to each other may be prosecuted and the judge must sentence them to at least 15 years in prison.

Teenagers, sexting? Fifteen, and potentially more, years in federal prison? Seems a little extreme. But the article goes on to point out just how much little thought went into it all:

Legislators aren’t supposed to be mere puppets for law enforcement agencies. Yet here we are: A bill specifically requested by DOJ was rushed through the House of Representatives with near-universal support from Republicans and also a lot of support from Democrats. Opposition to the bill from a committed group of criminal justice reformers was ignored. And amendments aimed at fixing the most problematic parts of the bill—its reliance on mandatory minimum sentencing schemes and its failure to exclude minors trading photos with other minors from child-porn prosecutions—were both voted down.

And why was it voted down? Because, although the legislation is overbroad, potentially exposing minors trading photos with other minors to child-porn prosecutions, legislators are certain that we can trust the government not to abuse this power. Yeah, that’s what they said, you can trust the government not to abuse its power. Against your children.

Supporters of the legislation said there’s no reason to think that federal prosecutors will use the bill against teen sexters, since they have not done so in the past. But state prosecutors have. And we’re also up against a new federal administration—one that has explicitly endorsed mandatory minimums and other tough-on-crime endeavors. So, no, the FBI probably isn’t about to start rounding up teen sexters in mass. But what will happen the next time ICE finds a racy image on a 17-year-old Mexican immigrant’s phone?

We simply “cannot rely on prospective discretion to protect juveniles under this statute,” said Conyers, “given the new policy of the Attorney General. We are under a new regime here at the federal level, and I can’t depend on relying on the prosecutorial discretion to protect juveniles under this statute.”

But, hey. Nothing is more important than our children, right? And, really, what could go wrong?


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