When Is A Cigar Just A Cigar?
Were Sigmund Freud alive and well, he’d despair over the state of criminal justice in Connecticut. We’ve criminalized desire to such an extent that many of us are now criminals at some point or another. And rather than put the brakes on a system run amok, lawmakers are finding more and more ways to lock people up. Is the only business booming amid the recession the prison-industrial complex?
A story in last week’s Hartford Courant reported that a couple of dozen folks were arrested as part of a dawn sweep of convicted sex offenders. Many of those arrested were charged with the felony of failing to provide a correct address to the good folks managing the sex offender registry. Others, no doubt, were arrested for being too close to children; perhaps even for living with their own offspring.
When Freud started analyzing patients, he noticed that many young hysterics reported childhood sexual molestation. He was stunned. Was sexual abuse ubiquitous? In time, Freud realized that many, if not most, of the claims of childhood abuse were fantasies. Human sexuality is dynamite. We learn to chart our libidinal courses with difficulty. We err, most often hurting ourselves, sometimes hurting others.
Connecticut’s newfound Victorian attitude toward sexuality seems firmly rooted in a sort of pre-critical sensibility. Suddenly, we see sex everywhere. A child makes a complaint, and there is a presumption that the complaint is true. The alleged victim is whisked off to a so-called forensic interview where he or she is encouraged to "disclose" all the gory details. Children incompetent as a matter of law to form a contract are suddenly, and too often, coddled into becoming the star witnesses in criminal cases in which the sole evidence against a defendant is the child’s uncorroborated testimony.
Question: If I cannot buy a used car from a child why is he or she permitted to offer testimony that will send my client to prison for decades?
Don’t get me wrong. I am not running for president of the Republic of Pedophilia. I simply note the irony, and I am troubled what seems to be a surge in these sorts of prosecutions. Surely, the Nutmeg State did not awaken to the new millennium inspired by little more than sexual deviance. Are we akin to the early Freud, so fascinated by the reports of perversion that we are inclined to believe each report?
Assume for the moment there is some social utility in prosecuting each uncorroborated complaint of unlawful touching. I suspect each year innocent men are sent to prison due to the fantasy of a child who has displaced all of the frustration and anxiety of growing up in a chaotic home into, literally, the lap of an unwitting bystander. The risk of convicting an innocent person might in some minds be balanced by the need to protect innocent and vulnerable members of our society.
But let’s be candid about this risk and not resort to the sort of mass hysteria that yielded the Salem witchcraft trials or the overwrought imagings of Freud and his early patients.
We have now criminalized adolescent curiosity. Statutory rape law permit the prosecution of young men engaged in consensual sexual activity with girls old enough to be given in marriage in earlier eras. Mere possession of images of child pornography is a crime. Both offenses require prison sentences. And then the offender must register on a public list, and his liberty is hemmed about with requirements that make it all but impossible to live.
This post-conviction libidinal plantation is supervised by probation officers armed with the moral sensibilities, and assessment skills, of Carrie Nation and her band of prohibitionists. The result is a criminal justice system clogged with cases at great expense and little social utility.
Judges, prosecutors and defense counsel all talk about how the system is broken as regards sexual offenses. But no one acts. That’s because to act risks scorn. Who speaks on behalf of errant desire?
Wise lawmakers would commission a study of sex offenses and the consequences of conviction. Let’s take a look at the mayhem we call justice. Perhaps once the analysis is complete we will, like Freud, conclude that sometimes a cigar is just a cigar.
Reprinted courtesy of the Connecticut Law Tribune.