Exiles in their own land: Sex offenders and the history of banishment in Western culture

Adam and Eve were banished from Eden. Much later, in 12th-century England, criminals could use banishment to escape death providing they had fled to a sacred place for sanctuary. Still later, convicts were banished to far-away prison colonies, among them the United States and, later, Australia. Banishment served the same function as execution, but “without the blood.” This form of banishment ended with the ebbing of new frontiers.

Now, in sex offender residency laws, we are seeing a new form of banishment – internal exile – that may fundamentally change the U.S. criminal justice system and the broader culture.

So argues Corey Rayburn Yung, a law professor at the John Marshall Law School, in a cogent analysis of the history and legal status of banishment.

At this point, residency restrictions have not seen their full effects. As I write, parole agents armed with GPS devices are fanning the state of California, knocking on ex-offenders’ doors and telling them to move. (See today’s Contra Costa Times for the latest news coverage as well as an interesting map illustrating the scope of the banishment in the San Francisco Bay Area.)

As large, urbanized states begin to enforce the restrictions, exile communities will develop. It is frightening to think of the unintended consequences of creating communities made up almost entirely of male sex offenders, where sexual deviancy will become the norm. Or of forcing those who reject these offender ghettos to disappear underground, where they will go unmonitored and unemployed, creating another recipe for recidivism.

Yung’s article, from the current issue of the Washington University Law Review, is available online.

Photo: Masaccio's Die Vertreibung Adams und Evas aus dem Paradies, public domain at Wikimedia

Sex offender fallout hitting unrelated laws

Flawed idea would penalize indigent mentally ill

The U.S. state of Delaware marks the letter "Y" on the driver's licenses of sex offenders. Louisiana emblazons the words "SEX OFFENDER." Here in California, a politician running for state attorney general is trying to bootstrap a victory in next week's primary election with a copycat proposal.

Imagine the shame and humiliation when the young store clerk asks for your ID to verify your credit card signature. It's just one more brick in the wall of internal banishment, which -- as law professor Corey Rayburn Yung has pointed out -- is radically changing the face of American culture.

Of course, shaming and banishment are nothing compared with the murders driven by this hysterical and counterproductive scapegoating. Take the unfortunate Florida man who was beaten to death with a baseball bat in his own home by two men who thought he was a convicted sex offender. As it turns out, the elderly gentleman had no criminal record whatsoever; he just happened to share the same name as a sex offender.

Some may dismiss that murder as the rash act of a couple of drunken hooligans. But, as I blogged about back in 2007, such vigilanteism is not uncommon. It is fueled by the rhetoric of our presumably rational leaders -- politicians, policy makers, even mental health experts. In my primary election voter's guide, almost every candidate down to the dogcatcher is promising to make the world safer from sex criminals like Phillip Garrido.

The current freneticism is linked to the case of John Gardner, who raped and murdered teens Chelsea King and Amber Dubois in San Diego. As I noted in my April 3 post on that case, politicians would rather point fingers than accept the limitations of the science of prediction. In a plea bargain that saved his life, Gardner has been sentenced to life in prison without the possibility of parole. His fate is sealed, but the forensic repercussions are just beginning. First up, politicians have approved a $250,000 probe aimed at uncovering flaws in the state Department of Mental Health's practices of screening paroling prisoners to detect sexually violent predators.

Dangerous expansion proposed for MDO law

An especially troublesome piece of forensic fallout from the Gardner case is a proposal by the Sex Offender Management Board (SOMB), created by California's legislature in 2006 to systematize oversight of the state's sex offenders. The Board has issued a report, at the governor's request, that contains a shocking claim and recommendation:

"Changes to the Mentally Disordered Offender (MDO) Commitment Law Might Have Permitted Gardner to Be Committed to a Mental Hospital And Prevented Further Crimes"

Wow! What does the MDO law have to do with sex offenders?! For readers who are not familiar with it, California's Mentally Disordered Offender (MDO) law was enacted in 1986 to protect the public from prisoners who upon release would pose a substantial danger of physical harm to others due to a severe mental disorder. In this case, "severe mental disorder" means just what it sounds like -- a genuine psychiatric disorder (most typically of psychotic proportions) that significantly impairs functioning.

Apparently, Gardner was flagged as a possible candidate for MDO commitment because he received some mental health treatment while in prison. But he was found not to meet the criteria for involuntary hospitalization under that law. As the forensic expert who evaluated him before his trial in 2000 had noted, he had no psychotic disorder; he was "simply a bad guy who is inordinately interested in young girls."

Snippet from forensic report on Gardner, courtesy San Diego Union-Tribune

News accounts have stated that the two MDO evaluators (one from the Department of Corrections and the other from the Department of Mental Health) differed as to whether Gardner had a severe mental disorder. In such cases, a prisoner is not hospitalized unless two independent evaluators from the Board of Prison Terms agree that he meets the criteria, and in Gardner's case this second pair of evaluators also reportedly split.

Based on its skimpy information (they admitted that they had not verified the news reports about Gardner's MDO evaluations), the Board is recommending two radical changes to existing law:

• Amend the MDO law (and remember, this law does NOT target sex offenders!) so that a prisoner is involuntarily hospitalized when a second set of evaluators comes back with a split opinion.

• Eliminate the current right of people committed under the MDO law to an annual review by the courts; "the MDO commitment system should mirror the system which now commits sexually violent predators (SVP's) for an indeterminate term."

Double Wow! Talk about increasing the "false positive" problem exponentially!

Remember, the MDO law was not designed for sex offenders. It is meant to civilly incapacitate paroling prisoners with bona fide psychiatric disorders that make them violent. Yet these folks in the sex offender arena want to fiddle with this law in order to remove the meager procedural safeguards that protect the mentally ill from indefinite detention.

Given its timing, this proposal may not be as illogical as it might superficially appear. It comes just in time for an upcoming court hearing on whether the state can continue to handle civilly committed sex offenders differently than other civilly committed ex-prisoners.

On Jan. 28, in response to a challenge by a civilly detained sex offender named Richard McKee, the California Supreme Court ruled that the state "has not yet carried its burden of showing why SVP's, but not any other ex-felons subject to civil commitment, such as mentally disordered offenders, are subject to indefinite commitment" [my emphasis]. The state's top court sent the case back to the original trial court to give the government "the opportunity to justify the differential treatment in accord with established equal protection principles." That hearing, coincidentally enough, is pending in San Diego Superior Court.

Wouldn't it be convenient if the state changed the procedure for other civilly committed ex-felons to treat them similarly to sex offenders, just in time for the McKee hearing? Voila -- problem solved!

Is the current Mentally Disorder Law too lenient?

Consider this scenario:

"Josiah" has a chronic psychosis. He hears voices and is religiously preoccupied. Although normally peaceable, he had one bad day back in the 1990s, during which he raved at passing cars and even hurled a few small rocks. Fortunately, no one was injured. Josiah passively obeyed the commands of passersby to lie on the ground and wait for police.

Josiah was arrested. He pleaded guilty to a felony charge and went to prison. After some time, he paroled from prison. Despite continuing homelessness and mental illness, he did not engage in any further violence. However, he was briefly returned to prison for a minor, nonviolent parole violation. Upon his re-release, he had the misfortune of being evaluated by MDO Evaluator X, who has a higher-than-average rate of "positive" opinions. Dr. X opined that Josiah posed a substantial risk of physical harm to others by reason of his chronic psychosis.

Dr. X's counterpart at the Department of Mental Health, Dr. Y, disagreed. He did not believe Josiah was dangerous, because he lacked any pattern of violent conduct. No matter. On the basis of only one psychologist's opinion, Josiah was whisked off to the state hospital. (Contrary to the impression left by the SOMB report that two additional tie-breakers are required when the initial two evaluators disagree, a second pair of evaluations is only required when evaluators differ on certain of the six criteria.)

Although he was well behaved and never assaultive, in the hospital Josiah remained religiously preoccupied, carrying his Bible everywhere and reading from it incessantly. Based on his religiosity and his rejection of psychotropic medications, hospital clinicians believed he remained dangerous, and opposed his discharge. So, he languished in the hospital for seven years. Finally, an attorney effectively challenged the state's claim of dangerousness, and a judge ordered Josiah released. He was 57 years old.

Under the current MDO law, people like Josiah can get trapped in the state hospital system. Josiah is not a sex offender, and -- unlike Gardner -- most sex offenders in prison are not even eligible to be screened under the current Mentally Disordered Offender law. Yet now, because of an isolated but highly publicized crime, along comes a proposal that would penalize mentally ill prisoners, most of whom -- like Josiah -- are poor people without the financial resources to stand up for their rights.

Time and time again, here's the way the story goes:

1. An exceedingly rare but highly troublesome event occurs.
2. A knee-jerk scramble ensues to find the cause and affix blame.
3. Existing laws are impulsively altered.
4. Unintended consequences ensue, most of them harmful.

I'm sure the SOMB felt under the gun to come up with something, since the governor was asking. But the MDO law is working just fine to do what it is supposed to do -- protect the public from severely mentally ill offenders who are dangerous. If anything, the system could use more safeguards against false positives, not fewer protections for mentally ill people like Josiah. If the law is twisted into some kind of an SVP-Lite, it will encourage misuse of diagnosis and treatment in the service of pretextual goals. And that will be sad.

It's too bad the SOMB members don't just stand up to the governor and legislature, and admit that the emperor has no clothes: Screenings are not magic. They will never be capable of predicting the future with 100 percent certainty, and eliminating all potential risk.

The false positives dilemma

When something goes wrong, politicians look for an easy fix, no matter how impractical, meaningless, or even harmful it may ultimately prove to be. As an Associated Press report noted in reference to the driver's license idea, "It's unclear how the measure might have helped Gardner's victims."

So true. Similarly, critics who claim the parole screening process was faulty are denying the unfortunate reality that even the most rigorous screening would not have saved Gardner's victims, because Gardner had no red flags. Paroled in 2005 from a six-year prison term for two counts of lewd and lascivious acts with a 13-year-old acquaintance, he looked like a garden-variety sex offender, one of many tens of thousands in California alone. He didn't come close to meeting the criteria for involuntary commitment as a sexually violent predator.
Gardner was a "false negative," someone who looked low risk but was not. Unfortunately, to eliminate all false negatives (called "Type II errors" by statisticians), one would have to vastly increase the rate of "false positives," or Type I errors, in which people are identified as at high risk when they really are not. In other words, if you reduce the risk of one type of error, you increase the risk of the other. And since the overwhelming majority of convicted sex offenders are never apprehended for another sex crime, any imperfect system geared toward identifying the small minority who will reoffend will wrongly flag many more who will not. (Most sex offenses are committed by men who have never before been apprehended, so they are not affected one way or the other by such identification efforts.)

Preventively detaining literally hundreds of thousands of aggregately low-risk men based on what a few of them might (or might not) do in the future would be unconstitutional. And on a practical level, it would be fiscally impossible. Ironically, Kansas -- the state whose pioneering sexually violent predator law withstood a constitutional challenge that paved the way for similar laws in other states -- recently suspended its SVP screenings because the process had become too costly. Strapped for cash, Kansas Department of Corrections officials decided to save $22,500 a month by stopping all psychological evaluations of paroling sex offenders. (They also closed four prisons and two boot camps and curtailed programs for offenders.)

I've said it before, but it merits repeating: Random danger is an unavoidable part of life. Sometimes, despite all of our efforts at public protection, bad stuff will still happen.

The San Diego Union-Tribune has numerous source documents on the Gardner case available online.

Graphics credits: (1) "Bogeyman" by faedrake (Creative Commons license);
(2) Type I and II errors is courtesy Tim Wilson ("Gilligan on Data" blog);
(3) "Behind the Bars" from Squibs of California, public domain (courtesy of Indiamos)

New York Times op-ed: "The last pariahs"

The chorus of dissent has been getting louder for a while now, but an anthropologist's cogent op-ed in the New York Times may increase mainstream attention to the problem of overly broad sex offender laws. The op-ed by Roger Lancaster is getting a lot of play on professional listservs. In case you missed it here's the conclusion:

Digital scarlet letters, electronic tethering and practices of banishment have relegated a growing number of people to the logic of "social death," a term introduced by the sociologist Orlando Patterson, in the context of slavery, to describe permanent dishonor and exclusion from the wider moral community. The creation of a pariah class of unemployable, uprooted criminal outcasts has drawn attention from human rights activists; even The Economist has decried our sex offender laws as harsh and ineffective.

This should worry us, in part because the techniques used for marking, shaming and controlling sex offenders have come to serve as models for laws and practices in other domains. Several states currently publish online listings of methamphetamine offenders, and other states are considering public registries for assorted crimes. Mimicking Megan’s Law, Florida maintains a Web site that gives the personal details (including photo, name, age, address, offenses and periods of incarceration) of all prisoners released from custody. Some other states post similar public listings of paroled or recently released ex-convicts. It goes without saying that such procedures cut against rehabilitation and reintegration.

Our sex offender laws are expansive, costly and ineffective -- guided by panic, not reason. It is time to change the conversation: to promote child welfare based on sound data rather than statistically anomalous horror stories, and in some cases to revisit outdated laws that do little to protect children. Little will have been gained if we trade a bloated prison system for sprawling forms of electronic surveillance that offload the costs of imprisonment onto offenders, their families and their communities.

The author, Roger N. Lancaster, is a professor of anthropology and director of the cultural studies program at George Mason University. He is the author of a new book from UC Press, Sex Panic and the Punitive State.

The full article is online HERE.

Sex offender news roundup

As always, there are lots of developments on the sex offender front. I haven't had time to blog about each individually, so here are a few brief reports with links.

State and federal civil commitment continues to unravel

Piggy-backing off of USA Today's recent expose, Prison Legal News takes an in-depth look at the status of the federal sex offender civil commitment process. As I’ve reported here on various occasions, federal judges in North Carolina are being thoughtful in their application of the “Sexually Dangerous Person” law (18 USC 4248). Rather than simply rubber-stamping government reports as truth, the judges “have shown a willingness to carefully sift through the facts” and the relevant law in each individual case.

Increasingly, federal judges are agreeing with the findings of private psychologists and defense experts in civil commitment cases, which has put the DOJ in the unusual position of losing more contested hearings than it wins. Courts have repeatedly found that the federal government failed to meet its burden of proof that prisoners certified for civil commitment are sexually dangerous or have a high risk of reoffending, as required by 4248.

Gratifying for independent forensic professionals is the fact that judges are finding outside psychologists more objective and reliable than psychologists on the payroll of the Board of Prison Terms, whose reports are “sometimes questionable.” Notes PLN reporter Derek Gilna, the judges are “consistently realizing that independent psychologists are “more objective, thorough and nuanced in their observations and findings.”

Despite its string of losses, the federal government is still holding ex-convicts for years after they complete their prison terms, pending civil commitment hearings. That’s “a chilling reminder of the power of the DOJ to arbitrarily deprive prisoners of their freedom,” writes Gilna.

Challenge to Minnesota commitment gains ground

Meanwhile, another federal judge has issued a court order mandating changes in the civil commitment system in Minnesota, after detainees brought a class action challenge. That state’s civil detention program is infamous around the world for its failure to release inmate “patients” even after years of sex offender treatment; it was on that basis that Britain recently rejected a U.S. bid to extradite an accused child molester.

Reports the Star Tribune:

Moose Lake detention facility

Chief U.S. Magistrate Judge Arthur Boylan [has] ordered state Human Services Commissioner Lucinda Jesson to convene a task force of experts to recommend options less restrictive than the state's prison-like treatment centers and to suggest changes in how offenders are selected for civil commitment, as well as how they might earn release from the program. The order came during pretrial discussions in a class-action lawsuit brought by patients who argued that their indefinite detention after completing their prison sentences is unconstitutional. Critics of the Minnesota Sex Offender Program (MSOP) hailed Boylan's order as an unprecedented and significant step toward changing a system that has been a magnet for controversy since its creation in 1994 with the construction in Moose Lake of a sprawling campus surrounded by razor wire.

The 63-page class action complaint can be found HERE.

New book: The Myth of Sex Addiction

I’ve been meaning to blog about this topic; I’ve got a half-finished post stashed away somewhere. But now I don’t have to: David Ley has written a whole book about it (proving that sometimes procrastination pays off).

In The Myth of Sex Addiction, Ley presents the cultural history, moral judgments and junk science underlying this disorder that has recently arisen in the public’s imagination. As described in the book’s summary:

David Ley

He exposes the subjective values embedded in the concept, as well as the significant economic factors that drive the label of sex addiction in clinical practice and the popular media. Ley outlines how this label represents a social attack on many forms of sexuality--male sexuality in particular--as well as presenting the difficulty this label creates in holding people responsible for their sexual behaviors. Going against current assumptions and trends, Ley debunks the idea that sex addiction is real. Instead, he suggests that the high-sex behaviors of some men is something that has been tacitly condoned for countless years and is only now labeled as a disorder as men are being held accountable to the same rules that have been applied to women. He suggests we should expect men to take responsibility for sexual choices, rather than supporting an approach that labels male sexual desire as a "demonic force" that must be resisted, feared, treated, and exorcised.  

In a review in the online newsletter of the influential Association for the Treatment of Sexual Abusers (ATSA), David Prescott calls the book indispensable for individuals engaged in the assessment and/or treatment of sex offenders, because "our clients typically do not have the luxury of selecting a treatment provider and can quickly find themselves in legally tenuous situations should they hold different beliefs than their therapist."

Study: Sexting not risky or psychologically problematic

Here’s another myth-buster: Sexting is not associated with sexually risky behavior or other problems.

That's according to a study published online in the Journal of Adolescent Health. More than four out of ten youngsters in a large U.S. sample of 3,447 had engaged in sexting, the researchers found. There was no association between sexting and either psychological well-being or engagement in sexual risk behaviors. The study flies in the face of alarmist hype over this increasingly ubiquitous phenomenon of the electronic age.

Sex offender recidivism through a therapeutic jurisprudence lens

Legal scholars Michael Perlin and Heather Cucolo of New York Law School have turned their focus to the effects of sex offender laws on rehabilitation and community reintegration. Their new article, published in the fall issue of the Temple Political and Civil Rights Law and also available online, suggests public policy changes that would minimize re-offense rates while still protecting human rights. As summarized in the abstract:

[The article] highlights the failure of community containment laws and ordinances by focusing on (1) the myths/perceptions that have arisen about sex offenders, and how society incorporates those myths into legislation, (2) the lack of rehabilitation offered to incarcerated or civilly committed offenders, resulting in inadequate re-entry preparation, (3) the anti-therapeutic and inhumane effect of the laws and ordinances created to restrict sex offenders in the community, and (4) the reluctance and resistance of courts to incorporate therapeutic jurisprudence in seeking to remediate this set of circumstances. It concludes by offering some modest suggestions, based on the adoption of a therapeutic jurisprudence model of analysis.

The only odd thing about the article is that its title is not derived from Bob Dylan lyrics, as Perlin's articles usually are. That must have been the influence of his co-author.

Alarmist study amps up sex offender fears

At the opposite end of the ideological spectrum, here's yet another piece of alarmist reporting:

"Nearly one in six convicted sex offenders is using sophisticated techniques invented by identity thieves" in order to escape registration requirements, blurts a news story that received quite a bit of press a bit ago.

My first reaction: ONLY one-sixth? After all, how many of us would want to wear a scarlet letter everywhere we went, a letter that effectively banished us from housing, jobs, school, community -- basically, from any kind of normal life.

Don Rebovich, the lead researcher in this study, who heads the ominously named Center for Identity Management and Information Protection (CIMIP) at Utica College, hyped former sex offenders' attempts to navigate around registration laws as "a growing societal problem."

"We have to dig deeper to find out why this is happening," he said.

Really?! If he cannot figure it out without further digging, he must not know how to walk in another's shoes. We’re talking about onerous laws that severely restrict where ex-offenders can live and require them to broadcast the addresses of any employment or school they attend. Laws that incite the prurient interests of nosy neighbors. Laws that invade the privacy of loved ones. Laws that have even led to a string of vigilante murders. People on these registries are motivated by the desire to protect family members, shield themselves from nosy neighbors, and get jobs.

Even the New York Daily News, certainly no sympathizer toward ex-offenders, notes in its coverage of the study that the various attempts to evade scrutiny "don't mean the offenders aren't checking in regularly with their parole officers. Actual absconder rates -- the percentage of sex offenders who get released and disappear -- are extremely low."

Ironically, as highlighted in the Perlin and Cucolo article referenced above, a growing body of empirical research suggests that registration laws do nothing to protect the public or reduce recidivism. Indeed, they may foster recidivism, by isolating former sex offenders and destroying all hope of leading productive, law-abiding lives.

Frank Kuni, New Jersey sexual registry entry

Meanwhile, what was the heinous crime of the so-called “poster child” for violating the registration rules -- the worst violator they could find?

Frank Kuni of New Jersey did not commit a new sex crime. Rather, he changed his name in order to land a job. With the US Census Service, no less. In other words, as one article put it, he had the audacity to try to "slip back into society" and become a productive citizen.

Further resources:

I  recommend the Prison Legal News article, Federal Sex Offender Civil Commitment Process Under Fire, for those interested in an in-depth report on recent federal decisions. Prison Legal News has lots of other cutting-edge news coverage, as well; I recommend browsing the site and signing up if you find the information useful. There is a free email alert option. 

My blog list of online sexting resources can be found HERE. 

Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration by Heather Cucolo and Michael L. Perlin can be freely downloaded from the Social Science Research Network site. 

My 2007 blog post on sex offender banishment, Exiles in their own land: Sex offenders and the history of banishment in Western culture, is HERE.  

Hat tips: Bruce, Sandi, Ken Pope 

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)

Gender twist on "post-apocalpytic trolls"

I've written previously about troll colonies. They are the exiled sex offenders living under bridges, including most famously the Julia Tuttle Causeway in Florida. Now, for perhaps the first time, a woman has been forced to join their ranks. Here is what one columnist had to say about this sad, and senseless, development in a world gone mad:

Woman joins sex-offender group
Guest essay by Fred Grimm, Miami Herald*

It's as if Voncel Johnson has been thrust into a bizarre social experiment.

Forcing so many men to live like post-apocalyptic trolls beneath a bridge in the middle of Biscayne Bay wasn't quite mad enough. Now they've added a woman.

For two years, a colony of convicted sex offenders under the Julia Tuttle Causeway has lived in a public health travesty, without water or toilets or electrical service. They sleep in tents, shacks, the back seats of cars in the last realistic address in metropolitan Miami unaffected by city and county sex-offender residency laws.

The numbers have been growing steadily as more convicted sex offenders emerge from prison and are consigned to finish out their wretched lives under a bridge.

The population was up to 52 men Monday. And Voncel Johnson.

Gender equity

In a peculiar nod to gender equity, the Florida Department of Corrections informed her last week that she too had only one residency option in Miami-Dade County -- the Tuttle. ''They just give me a blanket and a pillow and sent me . . . here?'' she asked, talking over the incessant thump-thump-thump of the freeway traffic overhead. "I just broke down.''

A community backward enough to create a subterranean de-facto prison camp of male sex offenders thrusts a single woman into the mix -- just to see what happens.

It's an ironic setting for Voncel Johnson. The 43-year-old woman, who grew up in poverty and neglect in the Brownsville section of Miami, told me she was sexually molested at age 6 and gang-raped at 16. ''I have a hard time trusting men,'' she said.

In 2004, Johnson pleaded guilty to a charge of lewd and lascivious exhibition (without physical contact) with a minor. She claimed Monday the charge was unfounded but at the time a plea offer with one year probation and no prison time seemed prudent. Except she twice failed to meet sex-offender registration requirements. Her probation was revoked. She did 10 months at Broward Correctional Institute.

Common refrain

She repeated a common refrain -- sometimes delusional -- among the bridge outcasts. "I never would have done that plea deal if I'd known they'd send me here. I could've fought those charges.''

But offender laws leave the state Department of Corrections no options for a sex offender. Voncel Johnson's parole officer did find her a motel room for three days last week. And she was offered a slot in a residential offender program in another county. But Johnson refused to leave Miami. "All my family lives here. I've never been any place but Miami.''

It was probably a foolish decision, but Johnson harbors some vague notion about gutting it out beneath the Tuttle until her parole ends May 5. ''Then I can find some place to live.'' She seems unable to grasp that residency restrictions are forever.

Meanwhile, the men beneath the Tuttle gave her a battered old camper trailer. ''We watch out for her,'' insisted Juan Carlos Martin, who has been under the bridge so long that the address on his driver's license reads ''Julia Tuttle Causeway Bridge.'' He said it was as if city, county and state officials purposely cram more and more men into an unliveable, hopeless, crowded space, knowing that eventually something awful might happen. And now they add a woman.

Martin said, "They need to get her out of here.''

*From today's Miami Herald, posted with the written permission of columnist Fred Grimm. More columns by Fred Grimm are HERE.

Related blog posts:

• Trolls evicted (February 14, 2008)
• Exiles in the promised land (December 13, 2007)
• Sex offenders must live as trolls (April 16, 2007)
• A bridge as a last resort (May 1, 2008) – Guest essay by Seattle Times columnist Danny Westneat about a similar situation in Washington
• Exiles in their own land: Sex offenders and the history of banishment in Western culture (September 14, 2007)

Exiles in the promised land

Sex offenders living as trolls under Miami bridge

The New Times of Miami has an amazing update on the exile colony of sex offenders living under the Julia Tuttle freeway in Miami (a community I blogged about back in April); there's a companion slide show that is worth checking out. The story begins like this:

Another one showed up last night. Around 10 — just before curfew — a car rolled in under the bridge and the newcomer got out with his wife. She hugged and kissed him goodbye, pulled the car out along the road, and disappeared into a sea of headlights. . . . Until last week, "Big Man" was serving a four-year sentence for cocaine possession. . . . He was looking forward to leaving prison and reuniting with his wife, until he got the news: Instead of going home, he'd be living under a bridge, a parole commission officer told him. That's because 23 years ago, when he was 19 years old, Big Man was charged with sexual assault on a minor. (He claims the victim was his girlfriend and that it was consensual.)

The story continues here. The companion slide show is here. Also see my September post on how this relates to the history of banishment in Western culture.

Russell Banks' new novel explores sex offender banishment

The Kid is all alone in the world, hiding in the shadows under the freeway, part of an ever-growing mass of exiles electronically shackled to a society that despises and shuns them.

But who are these modern-day lepers? And why are there so many of them? What if sex offending is a symptom of a malfunctioning society, and these men are just the canaries in the coal mine, carrying the burden of society' shame? What if the Internet is the snake in the Garden of Eden, and pornography is the forbidden fruit?

In Lost Memory of Skin, best-selling novelist Russell Banks explores the deeper ironies of a culture that condemns pedophiles even while turning its children into dehumanized sexual commodities. But on a deeper level, the novel is about the profound loneliness and alienation of the digital age, the inability of people to get beyond false facades to truly trust and connect with each other.

My review continues HERE.

(As always, if you appreciate the book review, please click "yes" at the Amazon site, to boost the placement of my Amazon reviews.)