Let's face it, we are a sexophrenic culture. On the one hand, we celebrate and market sexuality: Turn on the television, look at a magazine advertisement, walk down a street: Sex sells everything from toothpaste to automobiles. We manipulate and cultivate desire.
Yet at the same time that we do this we also criminalize desire. We register sex offenders, charge folks with crimes for engaging in sometimes consensual behavior and fail to draw a line between fantasy and reality. Looking at the wrong photographs can land you in prison. Being mistaken about the age of a consenting partner can land you in prison. Engaging in the wrong kind of chat on line can land you in prison.
We're sexophrenic to the core.
A significant portion of my law practice is devoted to the defense of so-called sex crimes. Sometimes it is obvious that the behavior alleged should be a crime. There is nothing about a violent rape that does not offend. But often the conduct is more subtle: A 19 year-old man responds to a fifteen year old girl's overtures. It is a crime likely to land the man in prison.
How did we become sexophrenic? What impulse leads us to punish the very thing we encourage? I don't have many answers, but I have seen many lives undone in ways that defy reason and sound social policy. This page is dedicated to the defense of folks charged with sex crimes; it is not an endorsement of sex crimes.
Last week, I read a new book on sex crimes and offenders, entitled Reconsidering Sex Crimes and Offenders: Prosecution or Persecution? (Praeger, 2009)by Zilney and Zilney. The book confirmed many things I already knew. "Currenbtly," the authors write, "everything is related to sex: advertisers use sex to sell virtually every productm and society is inundated with sexual images and connotations on a daily basis." Lawmakers reacting to this sexual saturation often act in reponse to isolated harms, creating overbroad legislation that reaches far more broadly than the harm inspiring the new law.
Legislative momentum for enhanced sex offender registration. Thus, the 1994 rape and murder Megan Kanka helped inspire sex offender registries. Adam Walsh's murder helped strengthen registration requirements. But is the public protected from harm when folks engaged in consensual activity are required to register? Is public urination a sex offense? The media whips up moral panic when a stranger commits an act of sexual violence, yet most sex offenses are intrafamilial affairs. Does it make sense to criminalize errant desire in every form?
Zilney and Zilney argue persuasively that increased registration and stigmatization of sex offenders may actually frustrate efforts to rehabilitate folks who make mistakes. While recidivism rates for sex offenders are lower than rates for all criminal offenses, there is persuasive evidence that isolating exclusion of sex offenders from normal society and from employment opportunities increases the very stressors that encourage re-offending.
Of course, labeling a person a sex offender is the kiss of death. No one wants to come to the aid of a "pervert." So lawmakers pass ever more inclusive and resitrictive legislation, drawing more and more people in what amounts to virtual planatations. We fail to distinhuish serious crimes from petty crimes. In the rush to create a one-size-fits-all system, we tax overburdened services to the breaking point: is it any wonder that dangerous folks slip through the cracks?
I encourage folks to send me stories and anecdotes about our sexophrenic criminal justice system. Perhaps by focusing on failures in the form of over-reaching we will be able to learn enough to make intelligent requests for reform of the legal system.