A longer version of Dr. Fortino’s piece appears in the FEBRUARY issue of Criminal Legal News.
By Michael Fortino, Ph.D. . . . Fueled by a “moral panic” that evolved through the mid-2000s, the war on “sex offenders” paralleled the war on drugs and was slated to eventually replace it as our nation’s drug war began to wane in popularity. Congress passed a multitude of statutes establishing severe sanctions for all sex offenses in a “one-size-fits-all” initiative, and it did so without the support of empirical data. This movement, which expanded the sex registries around the country, fed off of a series of grotesque and sensational child murders that eventually culminated into the Adam Walsh Act and Megan’s Law. With the exception of property crimes and illegal immigrants, sex offenses have now become the fastest growing felony category entering the American prison system.
In a well-researched and comprehensive article, UCLA professor Catherine L. Carpenter detailed the world of injustice that has accompanied the crimes of “sex offense” where there exists little difference between offense context or condition. Her article, “Blanket Exclusions, Animus, and the False Policies They Promote,” deals primarily with the sex offender registries but also exposes a myriad other abuses associated with current sex offender laws.
These statutory acts, based largely on public fear and hysteria, were promulgated by our criminal justice system, then propagated by the media. In recent years, they serve to create a consensus in a bi-partisan society: Whether Democrat or Republican, man or women, liberal or conservative, this “frenzy of hatred” cuts across all party and ideological lines.
Of course, there is no greater cause than that of safeguarding the most vulnerable, our children, and violent, hands-on sex offenses should be regarded as both egregious and reprehensible and must be addressed appropriately, but even these crimes should be viewed as behavioral first and foremost. Studies show that non-contact “fantasy crimes” are the direct result of low self-esteem, stress, anxiety, or mid-life crisis. Much like the alcoholic who may reach for a drink the morning after realizing he embarrassed himself while drunk the evening before non-contact offenders, subject to public shaming, prison abuse, or societal discrimination, often slip deeper into the cycle of shame.
The term “sex offender” has become a catch-all phrase for a vast group of individuals with varying degrees of culpability, from the most innocuous (urinating in public, skinny dipping in a lake), to the most heinous (forced sexual violence against another). Unfortunately, the line between these extremes is not merely blurred, it is virtually non-existent. Court records show cases where possession of illicit images of teens have received nearly identical terms of imprisonment to that of violent sexual molestation crimes committed against infants or toddlers.
It is estimated that as many as 26% of the nation’s newly-minted “sex offenders” are under the age of eighteen, and minors, predominantly as a result of social media and “sexting” friends, are now the fastest growing segment to enter the sex offender registry roles. The youngest, a nine-year old boy, has been fated to registration for life after authorities determined that he was guilty of “playing doctor” with his four-year old sister. Then there is the teen couple who “sexted” naked photos of each other only to be prosecuted as adults for exchanging images of each other as minors.
There currently exists no empirical data to support the argument that viewing illicit pornography or other “fantasy crimes” qualifies as a “gateway” to “hands-on” victimization. For those signing on to a lifetime of sex registration, they are brandished with a scarlet letter and subject to social ostracism, banishment, and exclusion, not to mention risk of violence perpetrated against them. Studies show a far greater number of violent crimes transpire each year at the hands of vigilante neighbors lashing out against registrants than the number of documented re-offense cases each year perpetrated by a registrant.
The fact is less than 4% of all sex offenders go on to re-offend, and that number drops precipitously to 1-3% for those over 50 years of age. A significant amount of junk science has grown out of a multitude of flawed research such as the FMC Butner “Redux” study; using this flawed data, prosecutors and the media continue to tout unfounded and unsubstantiated statistics designed to further promulgate fear in exchange for power and control.
Consider an organization like the “National Center for Missing and Exploited Children” (NCMEC), an organization tasked with maintaining an expansive database of exploited or missing children, and one which works side-by-side with law enforcement to identify and recover child victims of violent crime. Ostensibly, NCMEC supports an honorable and worthy mission. The organization however produces some of the most shocking and outrageous statistics–one report suggesting more than 750,000 missing children are listed as possible abductions every year in the United States. At first glance, something does not seem to add up here. If this number was accurate, it would suggest that Amber Alerts would be blaring on street corners across the country, and every broadcast news channel would be dominated by reports of hundreds of neighborhood children snatched in broad daylight from parks and malls.
In his blockbuster book, Sex Panic and The Punitive State, Roger N. Lancaster uncovers the fact that the actual number of real-life, “stranger-danger” abductions across the nation falls below 150 per year, a far cry from 750,000. This inflated NCMEC data it turns out, includes every call made to law enforcement by a worried parent when a child stays over at a friend’s without notice, or a non-custodial parent fails to return a child by 5:00 pm Sunday. Certainly, NCMEC is a needed and worthy organization, but like many other agencies, it exploits a mission of fanning the flames of fear and civil unrest.
The fact is, internet child pornography offenders are considered “low-hanging fruit” by many law enforcement agencies, and they have become “easy-pick’ns” for cyber task forces acting under the authority of the FBI, ICE, and even NCIS. Sex offenders account for about 10% of the Federal Bureau of Prisons’ population, or nearly 16,000 inmates. In a recent FOIA request, it was discovered that the FBI has identified more than three million personal computers throughout the United States that contain some form of illicit imagery (child pornography). The Department of Justice simply does not have the manpower to prosecute them all so non-contact convictions have now become a matter of prison bed space and quotas.
Advanced nations such as Norway, Switzerland, and Germany, where sex offense incarceration is almost non-existent, follow counseling initiatives commensurate to the severity of victimization. The Netherlands seals criminal records from public purview so a returning inmate is given a true second chance. The American justice system simply refuse to consider the empirical data that remains at its disposal, and it turns a blind eye to the success of progressive systems around the world. It is for these reasons that I commend organizations such as NARSOL and the efforts of its many contributors, members and supporters for their courage during this era of systemic change.