You know our laws regarding sexual misconduct have gone haywire when they make the front page of Britain's Economist. The weekly news magazine's beat is the world. It is highbrow, sophisticated, and targeted toward policymakers with clout. Think Time magazine for Mensa members.
The front page of the August 8-14 edition carries the following headline: "America's unjust sex laws." What follows are four of the most sensible pages of prose written on what I refer to as the New Prudery.
Yes, it was horrible that Megan Kanka was abducted and killed by a man who twice before had been convicted of sex offences. The neighbors never knew. So we passed Megan's law, and we now all but plaster the faces of each and every person convicted of a sex offense on milk cartons. And then Adam Walsh's father got in the act. The Adam Walsh Act, named after another murdered child, will soon require that states make their sex offender registries public. We can vet each and every neighbor to see whether they too have played outside the lines of our ever tightening libidinal box.
But just who belongs in this box? Sure, let me know if there is rapist in my midst, or a man or woman intent on violence. But there are some 640,000 Americans on sex offender registries -- that is more than the population of North Dakota, Vermont or Wyoming. And the numbers keep growing. Not all of these folks are dangerous. Most, in fact, are guilty of nothing more that curiosity, or isolated acts of bad judgment.
Some prosecutors now regard it as a sex offense for one teenager to pass along a photograph of them self to another teenager, a practice known as "sexting." Or how about the young man who looks at some child pornography one night on the computer? He, too, is a sex offender. So are some young men who have consensual sexual relations with another young person.
Lawmakers just keep pouring fuel on the fire. In an effort to appear tough on crime, lawmakers rarely scale back laws regarding sex offenses. They engage in what the Economist calls the "ratchet effect." They try to outdo one another with harsh penalties and consequences. "Every lawmaker who wants to sound tough on sex offenders has to propose a law tougher than the one enacted by the last politician who wanted to sound tough on sex offenders," the magazine notes.
A man or woman facing a sex offense really faces four harms. There is the obvious threat of incarceration, a very real possibility given the both the states and the federal governments increasingly resort to mandatory minimum sentences. And then there are the gifts that keep on giving, long after a prison term is completed: new-found and disabling status as a felon; the requirement, often for life, to register on a public sex offender registry; and, the silent but deadly requirement that a person engage in "treatment." Lives are wantonly ruined over simple acts of curiosity.
The Economist reports that Human Rights Watch calls for the United States to scale back requirements regarding registration as a sex offender. These registries simplify vigilante violence by targeting potential victims. The great failing of the American criminal justice system as regards sex offenders is the failure to draw distinctions between lesser and more serious offenses.
Did you know, ladies and gentlemen, the urinating in public is considered by some to be a sex offense? "Guilty," I plead, guilty as charged of the ever-present need among all men over the age of 50 to pee often. Should I wear a trench coat the next time I am huddled along side my car? And will it serve as mitigation if I tell my sentencing judge that I shook my offending member but once to drive off the lingering drops?
I speak to clients and prospective clients almost daily about the need to educate lawmakers in our midst. Let the Solons know that the sex offender laws are a public health epidemic. The war on sex is much like the war on drugs, a costly failure. In weeks to come, I think I will preach less and simply hand out copies of the piece from the Economist. When the world notices our folly, it is well past time for us to pay attention.
Read the Economist piece. Read it and weep. And then send a copy to a lawmaker in a plain wrapper and pray he or she has the courage to read all four pages.