August 18, 2009

Criminalizing our nightmares, destroying civilization

We all know what an unmitigated disaster the Drug Wars have been. Here at Ground Zero (California), prison guards live large while public schools crash and burn. (We used to have among the best schools in the United States; now we are at the bottom.) Membership in the guards' union has soared from 2,600 to 45,000, while correctional salaries rose from $15,000 to -- in some cases -- $100,000 a year or more. (Laura Sullivan at NPR has an informative piece on Folsom Prison as an exemplar of this process. Folsom used to rehabilitate its prisoners; now it's a "merry-go-round" with no escape.)

Have we learned from the failed Drug Wars? Nope. Instead, we are on the cusp of a new and massive criminalization effort, this time targeting the bogeyman sex offender.

So predicts Corey Rayburn Yung, prolific scholar at John Marshall Law School in Chicago, in a new article, "The Emerging Criminal War on Sex Offenders." Yung reviews the history of "criminal wars," mainly the War on Drugs, to identify three essential features:
  • Marshaling of resources
  • Myth creation
  • Exception making
He predicts that the changes being wrought by the Adam Walsh Child Protection and Safety Act ("AWA") of 2006 may bring "repercussions as substantial as the drug war has had on American criminal justice and society."

The ratchet effect

By now, we really should know better than to allow this further destruction of our civil society. Even the Economist of London, hardly a bastion of liberal politics, is lambasting the laws. The August 6 issue includes both a leader and a more in-depth article explaining why America’s sex laws are "unjust and ineffective." As the subhead puts it:

"An ever harsher approach is doing more harm than good, but it is being copied around the world"

As with the Drug Wars, the laws are driven by the "ratchet effect":
"Individual American politicians have great latitude to propose new laws. Stricter curbs on paedophiles win votes. And to sound severe, such curbs must be stronger than the laws in place, which in turn were proposed by politicians who wished to appear tough themselves. Few politicians dare to vote against such laws, because if they do, the attack ads practically write themselves.

"In all, 674,000 Americans are on sex-offender registries -- more than the population of Vermont, North Dakota or Wyoming…. [A]t least five states require registration for people who visit prostitutes, 29 require it for consensual sex between young teenagers and 32 require it for indecent exposure. Some prosecutors are now stretching the definition of 'distributing child pornography' to include teens who text half-naked photos of themselves to their friends.

"How dangerous are the people on the registries? A state review of one sample in Georgia found that two-thirds of them posed little risk. For example, Janet Allison was found guilty of being 'party to the crime of child molestation' because she let her 15-year-old daughter have sex with a boyfriend. The young couple later married. But Ms Allison will spend the rest of her life publicly branded as a sex offender."
Yung too discusses some of these unintended consequences, including the harm to innocent parties. Other examples can be found daily in the popular press. For example, today's Raleigh (North Carolina) News and Observer reports on the travesty of convicted sex offenders being denied the right to worship, and one church choosing to move its children's programs off-site to protect a sex offending parishioner.

As I've reported before, the sexual predator hysteria is creating a widespread phobia of men in contact with children. Columnist Jeanne Phillips (Dear Abby), for example, is fueling panic about the dangers of public men's rooms. As San Francisco Chronicle columnist Jon Carroll sardonically responded:
"When did the idea get out that men's rooms were a secret hotbed of molestation? I mean, there are some men's rooms -- including, apparently, one in the Minneapolis airport -- where consensual homosexual activity between adults has been known to happen. But that's not at all the same thing as child molesting; that's just a form of speed dating. Men's rooms, may I say, are boring. Ain't nothing going on in them. Molestation typically happens in other places, usually in a private home. And statistically it's no more common than it was 30 years ago. As I've said before, if you're looking for the people most likely to molest your child, look at the members of your own family, because that's how it usually happens. People don't want to admit that, so they invent phantom pedophiles in the nation's men's rooms."
But above and beyond all of these unintended consequences, I predict that years from now we will look back and realize not just what we already know -- that we destroyed many lives unnecessarily, bankrupted our schools and other public institutions, and curtailed civil liberties on a massive scale -- but, more fundamentally, we actually created the creature we feared.

Creating the bogeyman: "Mike"

Let's take "Mike." An average, red-blooded 19-year-old American, he dated a cute 16-year-old girl. Like thousands of other young men, he was arrested, and forced to register as a "sex offender" for life. No matter that his behavior was not deviant. Three years is a standard age gap between young men and women for dating in our culture, as it has been forever. I happened to see the obituary of an 89-year-old man who before his demise had celebrated his 70th wedding anniversary. His wife was 86. Do the math. If he had been born 70 years later, he'd be a sex offender for life. Unable to live freely, work, or even attend church, he probably wouldn't have led such a successful life. After all, as social psychologists can tell you, the environment is at least as important to behavior as any psychological characteristics. Probably far more so.

Back to Mike. As I said, there's nothing wrong with Mike. But no matter. Like everyone else, he must undergo mandatory "treatment" for "statutory perpetrators" (yes, that's what treatment providers are calling guys like Mike).

The treatment of choice is cognitive-behavioral therapy. Its mantra, as Dany Lacombe of Simon Fraser University in Canada found in an ethnographic study of one prison-based treatment program, is:

"Once a sex offender, always a sex offender."

"Sex offending is like diabetes," a program therapist tells the assembled sex offenders. "It will not go away. You cannot be cured. We don't use the C word here. But can you be managed? Yes. Treatment is all about managing your risks to re-offend."

Despite little empirical support for this approach, Mike will be trained to understand his "cycle" of offending and develop a relapse prevention plan that focuses on controlling "deviant sexual fantasies." He will have to generate a log of sexual fantasies. If he denies deviant fantasies, or doesn't see the connection between his fantasies and his offending, he will be accused of not cooperating. He will learn to create deviant fantasies "to keep the therapists at bay."

As Lacombe quoted one 18-year-old, in the article in the British Journal of Criminology:
"They want to hear that I always have fantasies and that I have more bad ones than good ones. But I don't have bad ones that often. I make up the bad ones. I make them really bad because they won’t leave me alone."
Through the treatment process, Mike and others will learn to think of themselves as "beings at risk of reoffending at any moment." Indeed, if treatment is successful, Mike will become a virtual "confessional machine," "expected all his life to narrate his darkest fantasies to criminal justice officers and significant others who are enlisted to help him control his risk."

The iatrogenic process

As you probably know, iatrogenesis refers to the situation in which treatment creates or exacerbates an illness or adverse condition. In the context of sex offender treatment and management, here's how the process works:
  1. Saturate popular culture with hypersexual advertising and degrading, misogynistic pornography.
  2. When men succumb to the allure and experimentally transgress, label them as lifelong "sex offenders."
  3. Through mandatory "treatment," reprogram them into dark and dangerous deviants, "a species entirely consumed by sex."
  4. Finally, restrict their freedoms so severely that few if any prosocial life courses remain open.
Through exercises of moral regulation, then, the government, law enforcement, media, and therapists collude to transform sex offenders into a strange and different "other," no longer recognizable in their ordinariness.

While this makes Mike more closely match the public's conception of the bogeyman sex offender, is this helpful in the long run, either to him or to society more broadly? By brainwashing thousands of men to think of themselves as nothing more than perpetual sexual deviants, might we not be producing the very risk we have imagined and then sought to ameliorate?

Related articles by Corey Rayburn Yung:

The Sex Offender Registration and Notification Act and the Commerce Clause, Federal Sentencing Reporter, Vol. 21, No. 2, 2008

Banishment By a Thousand Laws: Residency Restrictions on Sex Offenders, Washington University Law Review, Vol. 85, p. 101, 2007

Photo credit: "Bogeyman" by faedrake (Creative Commons license)