Courts Succumb to Sexophrenia

A future historian might one day write the following of our time:

“Despite a generally permissive culture in which sexually suggestive photographs were used to advertise products ranging from toothpaste to cars, 21st century Americans nonetheless harbored draconian and puritanical laws involving sexual misconduct. It is almost as though they were afraid of the very desire they relied upon to entertain and to titillate themselves.”

We’re a little goofy about sex offenses, in my view, a sign of a state of mind I call “sexophrenia.” Here are several examples of how the law expresses this malady.

Our courts have created special rules of evidence and procedure for dealing with allegations of sexual misconduct.

In most cases, the prosecution is confined to proving only the offense charged. Evidence that a defendant had previously committed some other offense is generally not admissible. The theory is that a defendant is entitled to a fair trial. Putting on evidence of an accused’s bad character might make it easier to convict him. What, the courts say, has a prior bank robbery conviction to do with a charge of drug possession or rape? The answer is almost always nothing.

The bar on bad character evidence, also called propensity evidence, is relaxed in sex cases. The courts permit prior acts evidence to show a defendant’s involvement in a sex crime. That’s not to say that the evidentiary doors are flung wide open: I cannot imagine a judge permitting evidence of a bank robbery to prove a claim of child molestation — the offenses are simply too dissimilar.

But in areas showing a propensity, or tendency, to engage in sexual misconduct, the state Supreme Court has made it clear that trial judges should be more liberal in the admission of bad acts evidence than they might be in a case not involving sex. Why? Sex is different. The court holds that these offenses are typically furtive and compulsive in character, and this further element of proof is permitted.

Criminal defense lawyers generally detest this sort of reasoning by the court. Why do we need boutique rules of evidence targeted at specific crimes?

We’re crazy about sex, I say — even judges get seduced.

Another way in which the law treats sex offenses as different is with regard to the statute of limitations for making a claim of sexual misconduct.

Statutes of limitations require a party making a complaint, whether a civil plaintiff or the state, to bring their claims within a given period of time. A claim brought after the limitation has expired, or run, cannot be brought at all. Thus, as with most intentional torts in Connecticut, a person must file their civil suit within three years of the date of the bad act.

Except in sex offenses. Lawmakers permit a claim to be raised, in many cases, within 30 years of a complainant’s 18th birthday. Thus you can be accused of misconduct 30 or more years after the accuser alleges you have acted.

Why the special rule in sex cases? You know the mantra by now — sex cases are different. The acts are furtive, their secretive and shocking nature often means it takes years for a “victim” to come forward.

But try defending someone against a claim that 30 years ago on a given night they did something inappropriate. Alibi? Who can recall where they were two years ago on a given night, much less 30 years ago?

Not all offenses have a statute of limitations. Murder, for example, can be charged at any time. So can Class A felonies and certain especially serious sex crimes. We recognize that some offenses are so serious, so heinous, that the public interest demands that a crime be prosecuted regardless of how much time passes between the alleged commission of the crime and the time a defendant is arrested.

But some child sex cases proceed to trial with virtually no evidence other than the word of a complaining witness. A man or woman well into middle age can come forward and alleged that wicked Uncle Ernie fiddled about decades ago.

When cases emerge in which there is a delayed disclosure, the law then shows its sexophrenic tastes once again: The courts permit experts to testify that the lengthy delay in reporting is consistent with sexual abuse. Why? The theory is called incremental disclosure. Because of the trauma of the events the “victim” endured, delay in reporting is to be expected. The complainant must work through issues of shame and denial before coming forward, especially in the accused is a loved one or family member.

What’s more, even if the accuser’s testimony at trial is inconsistent with what they said earlier, the experts are permitted to explain the inconsistency away on a theory of incremental disclosure: Abuse victims often relay only part of their trauma when they first come forward, or so the theory goes.

Defense lawyers around the state often joke that these experts have an explanation for anything a complaining witness might say. No scientific evidence supports the reliability of this gibberish, yet the courts permit it. The evidence is necessary to punish sex offenders, by golly.

Finally, the law reflects its sexophrenia by its over-inclusiveness. Did you know in some states merely urinating in public is a sex offense? Get caught doing so, and you can be required to register as a sex offender. It’s small wonder that lawmen across the nation are beginning to push back. We’ve so many people on the nation’s various sex offender registries that it is hard to distinguish legitimate threats from the folks who are no threat at all.

The irony is all this is that our draconian efforts to criminalize sexual misconduct are largely unnecessary. According to data generated by the United States Justice Department, the recidivism rate for sex offenders is very low — fewer than 5 percent of offenders are re-arrested for similar offenses after release from prison.

There are violent sexual predators in the world who do present a danger. There always have been. But the law’s grand hysteria about sex has less to do with threats to public order than with our disordered views of desire. For some reason, we love to hate the very things we love. We’re sexophrenic to the core, I say.

Also listed under: Journal Register Columns


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