Moral panic over sex offenses results in cruel and self-defeating overpunishment

logo(4)National Lawyers Guild Review Editor-in-Chief Nathan Goetting has published a thought-provoking piece in the most recent issue of the Review, commenting on America’s “moral panic” over sexual offenses, which has “created self-defeating policies, unconstitutional laws, and cruel punishments.”   Among those punishments are a plethora of collateral consequences that stigmatize and shame without regard to actual risk.  We reprint the editorial here in its entirety, with permission.      

It should go without saying that human sexuality is rife with complexity and mystifying contradictions. It’s a puzzle palace from which all sorts of behaviors—routine, bizarre, and sometimes dangerous—can emanate. Yet our criminal laws and procedures regarding sex crimes respond to this swirling welter of incomprehensible impulses with stubborn and self-defeating simplicity. We choose to punish that which we fear to understand, as if learning what motivates the behavior is to show a little too much sympathy and solidarity with “perverts,” toward whom only contempt can be shown. As with suspected terrorists since 9/11, our mercilessness leaves no room for anything else, not even enlightened self-interest.

I can think of no area of the criminal law, except perhaps international terrorism, into which contemporary American society has terrified itself into more ignorance than this. One of the guiding principles of western philosophy, etched in same Greek language spoken by Socrates and Plato into Apollo’s shrine at Delphi, is the maxim “Know Thyself.” When it comes to the darker side of human sexual conduct, we’d rather not. To do so will almost certainly force us to reckon with the fact that many of us aren’t the neat and tidy sexual beings we’ve convinced ourselves we need to be.

For a dangerous minority, certain impulses emanating from this darker side—dark in the twofold sense of being both dangerous and unknown—result in obvious and devastating social harms, especially against children. Such atrocities against the innocent and vulnerable inevitably cause panic and fury among adults charged with protecting them. However understandable these emotions are among those victimized by these crimes, allowing them to form the bases of our law and policy can only be self-defeating. The proper response to these harms is to harness the spirit of inquiry and problem-solving to discern their ultimate causes so as to better prevent them.

The drafting and enforcement of our criminal sexual conduct laws, particularly those targeting crimes against children, are driven by a powerful collective feeling of visceral revulsion. Our shared emotional response to these crimes has created self-defeating policies, unconstitutional laws, and cruel punishments. We aren’t reasoning toward justice and prevention. We’re raging toward vengeance—and are abandoning basic constitutional values in the process. We suffer from a problem as ancient as it is apparently incurable— how to prioritize enlightenment over prejudice and devise a system capable of fairly judging a small and intensely hated minority.

Only in this instance the problem is especially acute because the rancor toward the minority group is especially virulent. Sex offenders are the safest and easiest people to hate. Politicians, a category that certainly includes judges, never lose by condemning them and never win by coming to their defense. To argue too forcefully even for core legal protections afforded in other types of criminal cases is, in many contexts, to risk ostracism and raise suspicion. For this reason, politicians routinely lapse into self-serving demagogy, often deploying morally charged and unhelpful metaphysical terms like “evil” as substitutes for scientific or clinical concepts that might inform and enlighten. Demonizing sex offenders has become a reliable and effective campaign strategy in judicial elections. To appear “soft” toward a sex offender is to draft a campaign ad for one’s next opponent.

2014 was perhaps the best year yet for cynical judicial campaign ads showing how inflexibly punitive incumbent judges have been toward sex offenders. In my own state, Michigan, a television ad ran on behalf of two sitting state Supreme Court justices, Brian Zahra and David Viviano, entirely devoted to convincing viewers that the justices have “thrown the book at child predators” and that they will “keep affirming tough sentences.” Sex crimes represent a tiny fraction of that court’s docket, but the ad would have you think that Zahra and Viviano together composed the state’s only bulwark against an onslaught of slavering pedophiles.

In “Disgust, Dehumanization, and the Courts’ Response to Sex Offender Legislation,” Alexandra Stupple argues that the fears such ads engender and exploit are radically out of proportion to the actual dangers we face. Friends and family members are far more likely to sexually abuse children than strangers are. Stranger child predator cases are actually quite rare, especially when measured against public perception, and recidivism rates are lower for these types of crimes than those for many other violent offenses.

The popular image of the lurking child molester is largely a “myth . . . which serves to distort perceptions of everyday risks.” This isn’t to say that such attackers don’t exist or that they don’t inflict incalculable pain and anguish when they strike. But stranger sex crimes, including those against children, don’t occur with the kind of epidemic frequency one would expect given the hysterical laws and practices that have been created to combat them. Stoking panic this way helps judges and legislators get elected. Stupple explains the psychological underpinnings that have caused and continue to sustain the moral panic against child sex offenders.

Just because politicians luxuriate in chest-thumping rhetoric against sex offenders doesn’t mean that they don’t take their own message seriously. Stupple argues that the “disgust” legislators and judges feel toward sex offenders has led to their dehumanization in our courts. This dehumanization has in turn resulted in a failure in the courts’ essential function of protecting the individual liberties of criminal defendants. The more despised the accused, the more vital it is to our constitutional scheme that courts protect him or her from any temptations legislators might feel toward circumventing their rights. The failure of the courts in this regard has resulted in the continuation of a host of inhumane and ineffective punishments. These include massive, over-inclusive sex offender registries, which do far more to stigmatize and shame offenders, many of whom pose only a minimal recidivism threat, than protect the public. In many instances, inclusion on the registry is simply an internet-friendly method of public branding, what puritan judges would’ve done to Hester Prynne had laptops been available.

Judges have also imposed and upheld a vast array of behavioral and residency restrictions on released sex offenders. They’re applied broadly and on a massive scale, often in purely punitive ways that make assimilation back into society even more difficult. Perhaps most troubling, both ethically and constitutionally, is the rise of civil commitment laws that redirect inmates who have served their sentences into mental institutions. These laws often function as de facto sentence-extenders. They turn medical professionals into jailers and punish the same individual twice, and the second time indefinitely, for the same offense. Stupple doesn’t deny that there are a certain number of repeat-offending sexual psychopaths from whom society must be protected.

Rather, she argues that the response to this threat has been hysterical, disproportionate, and emotional rather than rational and effective. It has inflicted the double harm of exacerbating old problems, such as mass ignorance, fear, and the reinforcement of stereotypes, while creating new ones, including a metastasizing system of widespread overpunishment. Our legislatures and courts have promoted myths, exaggerated bogeymen, and recklessly fanned the flames of thoughtless rage and panic.