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The law of unintended consequences?
November 24, 2008 6:49 PM   Subscribe

Wendy Whitaker is a sex offender. At 17, she had oral sex with a boy, just shy of his 16th birthday. She's losing her house because she cannot live within 1000 feet of any area where children congregate, and the local church runs an unadvertised daycare. In 2006 she sued over the residency restrictions. Last Thursday, she lost. She filed a new lawsuit, saying that her sex offender status is cruel and unusual punishment.

Like the case of Genarlow Wilson (previously, 1, 2), if they'd just had intercourse instead of oral sex, it would have been a misdemeanor, not a felony. What she did is no longer a felony in Georgia, but a law was passed so that justice does not apply retroactively, so Wilson and Whitaker remain convicted felons. Another law effectively barred sex offenders from the entire state, and Whitaker moved to South Carolina. She returned to GA when the law was overturned. They're allowing Whitaker to stay in her home during the lawsuit but she won't be volunteering at the church.
posted by desjardins (169 comments total) 14 users marked this as a favorite

 
This is ridiculous. At the very least there ought to be different classifications of sex offenders.
posted by orange swan at 6:57 PM on November 24, 2008 [3 favorites]


lucky she didn't send him a risqué photo of herself, or she'd be a child pornographer as well.
posted by UbuRoivas at 7:00 PM on November 24, 2008


This is ridiculous. At the very least there ought to be different classifications of sex offenders.

I was going to write exactly the same thing.

I shudder to imagine the consequences if I'd been caught during some youthful experimenting -- surely we can find a way to write laws that both punish predators and allow for human failings and learning.
posted by Forktine at 7:02 PM on November 24, 2008 [3 favorites]


This is insanity.
posted by limeonaire at 7:04 PM on November 24, 2008 [11 favorites]


I've heard that in some cities the rules about sex offenders have left some of them living under bridges because there literally isn't anywhere in the city they can legally have a residence.
posted by Class Goat at 7:07 PM on November 24, 2008


This is insanity Georgia.
posted by joe lisboa at 7:08 PM on November 24, 2008 [1 favorite]


This is insanity Georgia America.
posted by joe lisboa at 7:09 PM on November 24, 2008 [21 favorites]


Oh America and your crazy puritanical laws.
posted by chunking express at 7:10 PM on November 24, 2008


I've heard that in some cities the rules about sex offenders have left some of them living under bridges because there literally isn't anywhere in the city they can legally have a residence.

In many places, I believe that is by design.
posted by tippiedog at 7:12 PM on November 24, 2008 [2 favorites]


Class Goat, I think that's Miami.

I can't help but laugh... here we have a registry, and no one does anything about it. We had a guy properly registered in the house next to me, said "offenses against children under fourteen years of age." And, well, I live across the street from an elementary school. There is, apparently, no happy medium.
posted by Kellydamnit at 7:12 PM on November 24, 2008


You might be a sex offender . . . .
posted by theroadahead at 7:13 PM on November 24, 2008 [7 favorites]


This is ridiculous. At the very least there ought to be different classifications of sex offenders.

Alternately, we could let people who aren't even on probation live where they please. And then, if they commit a crime, we could convict and imprison them.
posted by ROU_Xenophobe at 7:15 PM on November 24, 2008 [59 favorites]


This is the Christian Coalition. Or what's left of it.
posted by eustatic at 7:15 PM on November 24, 2008


I hate to be the one to make the slippery slope argument, but it would appear the slope has iced over and people are falling off of it. I wouldn't be surprised if these residency restrictions were expanded to other crimes.

It's obvious that this needs to be fixed somehow. Hopefully the courts will start to reign in these laws. I doubt most state legislatures will tackle the issue. It's hard to get reelected if you appear in any way pro-sex-offender.
posted by PhillC at 7:16 PM on November 24, 2008 [1 favorite]


This is insanity Georgia America Sparta!
posted by Astro Zombie at 7:19 PM on November 24, 2008 [8 favorites]


Isn't this what judges are for? To take a law (like, "no sex with kids") and interpret it depending on the case?

This is the product of piss poor lawmaking. The judicial system is designed precisely to deal with this, if the law lets them.
posted by graventy at 7:19 PM on November 24, 2008 [2 favorites]


It seems to me that the happy medium involves considering someone's debt to society paid in full once they finish their parole. Some people may in fact be dangerous enough that they present an imminent threat to others (children in this case) so long as they live out in society. People that ill should probably be spending life in prison or in a treatment facility.

Pretending instead that forcing them to wear a scarlet letter is a solution rather than a new, worse problem is living with our heads in the sand.

So, yeah, I guess I'm for completely eliminating these registries.
posted by Justinian at 7:20 PM on November 24, 2008 [2 favorites]


This is incredibly stupid stuff.

Between this and the teacher being prosecuted for popup porn hijacking - as well as the fellow busted for having sex with a picnic table and even that other fellow that liked bikes a bit more than others - we have a fundamentally flawed system which is at not only at odds with the fundamental principles of freedom of expression and the pursuit of happiness but also casts far too wide of a net.

Leaving us somewhere between a The Crucible and A Scarlet Letter or even The Handmaid's Tale - hoisted on our own petard of artificial propriety and tilting at windmills.

It would be useful - if complicated - to define the terms "victimless" and "accidental" more thoroughly. Perhaps even going so far as to refine and define the spheres of personal, local, community and global rights and responsibilities.

For example in the popup porn case if anyone should be prosecuted it should be the people who use or create malware and create situations like this where a perfectly good (community!) resource and tool is corrupted, attacked and misused for their own nefarious and profitable purposes.

The example of Wendy Whitaker is a nearly clear-cut case of religion interfering with affairs of the state - or else why the felony charge of sodomy (for oral sex!?) as opposed to a misdemeanor for regular intercourse? Were both participants consenting? And haven't young people experimented with sex since sex was invented?

To ignore any of these facets is the concise definition of blind justice - which isn't justice at all.
posted by loquacious at 7:26 PM on November 24, 2008 [7 favorites]


Oh America and your crazy puritanical laws.

I'm so sick of the shallow analysis that leads people to this conclusion. This is a case of poorly written laws that have been applied in an unjust manner. Taking the sexual abuse of children seriously is not puritanical, it's progressive. It's about standing with the subordinated and fighting against hierarchical and abusive relationships. In this case, the laws have been used in a terrible manner and they often are overbroad.

Just realize that people who aren't angry townsfolk with pitchforks care about this issue. Most of these laws are badly drafted and many local DAs and state AGs are horrific on the issue (but only because the populace demands it). That said, there is nothing puritanical about fighting injustice and that's what lies at the core of these laws. Child abuse is a serious issue and it should not be lost in stories like this.
posted by allen.spaulding at 7:27 PM on November 24, 2008 [12 favorites]


Class Goat, et al: Nowhere to go, Miami sex offenders live under bridge
posted by Ian A.T. at 7:27 PM on November 24, 2008


It constantly surprises me that american lawyers are unable to just write and present a defense argument that simply says:

"Are you fucking kidding me? Has anyone with an IQ actually read this shit?".

...and walk out. It should certainly be said, just to try and snap the idiots out of their blinkers, as reason seems to be failing dismally.

It seems logic and interpretation is not allowed in the same room as law making and 'consequences of super strict laws' doesn't even get to cross the county line. I thought "I can sue for dropping my coffee on my lap, because I didn't expect it to be hot" was pathetic to even be heard in a court room, but it really does seem to have been just one example of a crazy trend of over-zealous laws and judgments. Using it to victimise (what were essentially) kids trying to grow up for the rest of their lives is the true criminal act, there.

It makes as much sense as actually trying to prosecute someone for 'coveting my oxen".
posted by Brockles at 7:29 PM on November 24, 2008


I know people that were arrested for peeing outside (in an alley, behind a dumpster) that are registered sex offenders because they peed outside.
posted by schyler523 at 7:30 PM on November 24, 2008 [1 favorite]


Taking the sexual abuse of children seriously is not puritanical,

Of course it's not. But making oral sex a felony while intercourse is a misdemeanor sounds pretty Puritanical to me.
posted by rtha at 7:33 PM on November 24, 2008 [20 favorites]


I'm so sick of the shallow analysis that leads people to this conclusion. This is a case of poorly written laws that have been applied in an unjust manner.

Yes, but a lot of them were created entirely from a puritanical point of view. Trying to analyse the fuller implications of dealing with child abuse is (while exactly the solution to ridiculous laws like the one being discussed) kind of missing the point of how and why these laws need to be changed. I think you are being distracted by the seriousness of the subject matter, and not acknowledging that the seriousness has been grossly misapplied here.

They weren't trying to be progressive with these laws, just failing. They were being puritanical to class Oral sex as equivalent to sodomy.

Besides, anyone that thinks that a 17 year old and a 15 year old getting it on is a child abuse case is, certainly from my point of view, a country mile of anywhere like being considered logical. Treating this case as child abuse is the puritanical element.
posted by Brockles at 7:34 PM on November 24, 2008 [1 favorite]


It seems to me that the happy medium involves considering someone's debt to society paid in full once they finish their parole. Some people may in fact be dangerous enough that they present an imminent threat to others (children in this case) so long as they live out in society. People that ill should probably be spending life in prison or in a treatment facility.

Damn it. That's what I was going to say. If it is safe enough to let you out of prison, then it should be safe for you to be around other people.
posted by marxchivist at 7:37 PM on November 24, 2008


I live in Ga. One of my husband's employees was living in a tent on the back corner of his parent's lot in order to comply with the residency restrictions. He was supposed to be one of these "caught in the middle" cases and we all felt very sorry for his situation. Then, the GBI showed up at the office one day and took the computer he had been using. Turns out, he had thousands of pictures of little girls hidden in a file on his parents computer that he used. There wasn't anything on the work computer but we never got it back. He will be in jail for a while. I feel sorry for Wendy and her situation but sometimes, the accused are guilty and will offend again. There are no easy answers.
posted by pearlybob at 7:39 PM on November 24, 2008


I live in Georiga and am impressed they haven't branded her with an iron and shaved her and called her a godless slut while giving the boy a few slaps on the back fo' gettin' some. The state really is improving.
posted by Brandon Blatcher at 7:40 PM on November 24, 2008 [4 favorites]


Of course it's not. But making oral sex a felony while intercourse is a misdemeanor sounds pretty Puritanical to me.

The real culprit is the remnants of sodomy laws and there's no question that Code section 16-6-4, as it incorporates 16-6-2 is the problem here. Had Lawrence v. Texas been decided on Equal Protection grounds, instead of privacy grounds, then there'd be a solid argument against this. Or, had we as a nation passed the ERA, there'd likely be an entire body of law to prohibit exactly this. But Americans have consistently gone to the polls and voted against sex equality in nearly every shape and form. As such, we get situations like this, and we would no matter what the laws on the books were.

Seriously. We are a nation, when asked the question: should the constitution guarantee equal rights for women, said no. Just over 30 years ago. Why is it a shocker that nearly all of our laws about sex are not scrutinized to be fair or equal in the slightest? I think people are missing the real problem here and focusing on some of the very few laws that stand with the downtrodden. The culprit is an entire jurisprudence in many ways antithetical to sex equality.
posted by allen.spaulding at 7:44 PM on November 24, 2008 [4 favorites]


The important thing to realize is that she's white, and she sucked off a black dude. In Georgia.

This is only tangentially about "sex offenses".

Just like the old men who are being retroactively labeled sex offenders for decades-old consensual adult homosexual activity that was at the time criminalized, this is all about social control and punishing people who transgress community mores.

It's about finding a way to enforce traditional values despite pesky Supreme Court decisions like Loving v. Virginia and Lawrence v. Texas. Traditional values, like smear-the-queer and lynching blacks and preventing "miscegenation" and punishing white women who "whore around" with black men.
posted by orthogonality at 7:52 PM on November 24, 2008 [19 favorites]


I'm so sick of the shallow analysis that leads people to this conclusion.

Maybe I'm just not paying attention, but stupid stories like this one don't usually come up in other developed countries of the world.

There are no easy answers.

17 year old girl who gave a 16 year old a blow job: not a sex-offender. Easy answer for ya'.
posted by chunking express at 7:53 PM on November 24, 2008 [17 favorites]


The real culprit is the remnants of sodomy laws...

Absolutely. Which is actually just underlining the truth of chunking express's "shallow" comment re puritanical bullcrap.

I also think the registries are ridiculous. If criminals deserve additional punishment, extend the jail time. Add more community service. Do whatever you have to do so that the debt to society is actually paid by the sentence. Otherwise what is the point of punishment at all?

I blame the slippery slope of electioneering. Who, running for reelection, would dare appear "soft" on sex offenders? So the laws inch on... and get weirder and weirder. I'm sure we'll be tattooing their foreheads eventually.

I have trouble believing most of those child predator / registry / house sign laws would survive a constitutional challenge. But who would dare mount one? It's quite literally suicide.
posted by rokusan at 7:53 PM on November 24, 2008


I know people that were arrested for peeing outside (in an alley, behind a dumpster) that are registered sex offenders because they peed outside.

I was looking for a place to live about a year ago and found a nice house with two nice physics student in a nice part of town. I asked about the construction going on at the neighbor's house and the woman starts talking about the previous "frat boys" who used to stay there. Apparently one of them peed on her house while drunk and ended up on the sex offender registry for it. I gave her a flat "holy shit" look and she said, "Well he peed on my house." as if that somehow justified it.

I looked for a different place to stay.
posted by 517 at 7:53 PM on November 24, 2008


This is ridiculous. At the very least there ought to be different classifications of sex offenders.
Some states have "Sex offenders" and "Sex predators", but not everywhere. The rush to "protect the children" often classifies people who do things that don't really seem that bad (often not doing things with children) with people who kidnap and rape children. It's highly fucked up, and the product of lazy legislation chasing sensationalized media coverage.

People like John Walsh and Nancy Grace make a fortune whipping people into frenzy, and shitty laws get passed.

By the way, don't tell me this is the first time you've heard of something like this.

Isn't this what judges are for? To take a law (like, "no sex with kids") and interpret it depending on the case?
Well, I don't know about this case, but a lot of times the convictions weren't considered a big deal a the time, but in this decade people's files were pulled up and everyone who had been convicted of a sexual offense got labeled a "sex offender" and put in a database.
I feel sorry for Wendy and her situation but sometimes, the accused are guilty and will offend again. There are no easy answers.
Yes there is, if people offend again, punish them again. If they don't, don't. Duh.

Punishing people because people who share attributes with them are more likely to do bad things isn't justice. If you don't feel like the punishment is severe enough, then the you should argue that the punishment should be more severe. You shouldn't go back and increase the penalties for people who committed crimes years ago and finished serving their sentences. And in this case what she did isn't even a crime at all anymore!
posted by delmoi at 7:54 PM on November 24, 2008 [1 favorite]


orthogonality has it right. This isn't about the specific laws but the people in charge of enforcing them (a point I've been struggling to make). The rest of us are powerless to stop it because of a bad rulign in Lawrence and the lack of serious constitutional commitments to equal protection when it comes to these matters. Her 8th amendment argument is pretty much guaranteed to fail and it's sad that that's all she has (and that the 8th amendment has become so disfavored because it's overused in the absence of legitimate alternatives).
posted by allen.spaulding at 7:54 PM on November 24, 2008


17 year old girl who gave a 16 year old a blow job: not a sex-offender. Easy answer for ya'.

Agreed. You don't need special laws for teenagers. There are rape laws to apply when they fit. When they don't... get the hell out of kids' lives, please.

Between 13/14/whatever and 16/17/18/19 (y'all can argue and split hairs all you like on the exact numbers)... just treat them as you would two adults. We have fine legal frameworks for that.
posted by rokusan at 7:55 PM on November 24, 2008


hoisted on our own petard of artificial propriety and tilting at windmills

tilting at windmills is, of course, doubly futile when hoisted on a petard - your assault would be derailed before it even got off the ground.
posted by UbuRoivas at 7:57 PM on November 24, 2008 [5 favorites]


Which is actually just underlining the truth of chunking express's "shallow" comment re puritanical bullcrap.

No. Puritanism is about fear and control. I live in Massachusetts. When we can't gamble or buy liquor on certain dates (we can now! hurrah!), that's puritanism at work. Puritanism, at its core, is about a severe distrust of the corporeal and the other.

What's going on here is not about fear but about hatred. Hatred of gays, sexual minorities, and most of all, hatred of black people and miscegenation. These elected officials in Georgia don't fear blackness and gayness, they hate it. They hate it so much that no matter what the laws on the books were, they would still find a way to punish Generalow Wilson and Wendy Whitaker.

Those who want to fight against these problems need to forget about sexual liberation and think about sexual equality. Georgia isn't repressed. It is vengeful and hateful.
posted by allen.spaulding at 8:02 PM on November 24, 2008 [4 favorites]


Smoking pole = Vile, despicable, evil!

Playing with daddy's pistol = Whatever!

(Georgia has no Child Access Prevention, or CAP, law.)
posted by turgid dahlia at 8:04 PM on November 24, 2008


pearlybob writes "I feel sorry for Wendy and her situation but sometimes, the accused are guilty and will offend again."

I feel sorry for those 14 year old kids imprisoned in Guantanamo, but some of them are probably guilty.

I feel sorry for young black males, but statistically they're more likely to commit crimes. Better we should preemptively lock them up.

I feel sorry for those Nisei, all of the American citizens, interned at Manzanar, but some of them might have been Japanese spies. And we were at war.

I feel sorry for Ethel Rosenberg, but her husband Julius was clearly guilty, and she might have been an atomic spy too, so we had to execute her.

I feel sorry for Jesus, but He was a rabble-rouser, and Pilate had to prevent any possibility of an uprising against Roman rule.
posted by orthogonality at 8:06 PM on November 24, 2008 [43 favorites]


The sex offender crap has always ticked me off. Almost anything can make you one, and once you're labeled as one, no punishment is considered too severe. It's because these subjects are so easy for politicians to rally people around. You just say "sex offender" and people reflexively explode with fear and rage, always demanding that the government find some way, any way, to be harsher. Brass Eye hit the nail on the head with "Paedogeddon".
posted by Xezlec at 8:08 PM on November 24, 2008 [2 favorites]


In Massachusetts (and likely elsewhere) people can be made to register as sex offenders if they are caught urinating in a public-ish spot, no matter how discreetly. If you don't pee behind some sort of arbitrary sanctioned barrier, you're a perve.

Still, somehow it's okay if I am momentarily pretty much completely naked near underage boys using the grown-up locker room at my health club. What the hell is that?
posted by Camofrog at 8:08 PM on November 24, 2008 [4 favorites]


"Are you fucking kidding me? Has anyone with an IQ actually read this shit?". It constantly surprises me that american lawyers are unable to just write and present a defense argument that simply says:

"Are you fucking kidding me? Has anyone with an IQ actually read this shit?".

...and walk out. It should certainly be said, just to try and snap the idiots out of their blinkers, as reason seems to be failing dismally.


The idiots aren't blinkered, they're idiots, there's no snapping them out of it. Ever. Welcome to Nancy Grace's America.
posted by MikeMc at 8:10 PM on November 24, 2008 [2 favorites]


also, this is a problem in many developed countries. My favorite is the South Wales pediatrician who was forced out of her home due to poor spelling skills.
posted by allen.spaulding at 8:12 PM on November 24, 2008 [2 favorites]


WAIT! She was 17 and the boy was a few months younger?
THIS IS MADNESS!
posted by liza at 8:14 PM on November 24, 2008


I thought "I can sue for dropping my coffee on my lap, because I didn't expect it to be hot" was pathetic to even be heard in a court room, but it really does seem to have been just one example of a crazy trend of over-zealous laws and judgments.

I have no desire to derail this thread about an unrelated case that happened to be brought up tangentially in a comment, but so many people know fuck-all about that case and yet something about it makes them prone to snap judgments about it. I'm not singling you out, Brockles, but whenever I hear or read something like that sentence, I feel an irresistible urge to point out that the world is not quite so ridiculous as most of us are apparently eager to believe. To wit:

She didn't sue because she didn't expect it to be hot. She sued because it was hot enough to cause third degree burns to her lap, buttocks and genitals, requiring eight days of hospitalization, multiple skin grafts, and two years of subsequent medical therapy. She offered to settle for $20k to cover her medical costs, and McDonald's offered her $800, non-negotiable.

On discovery, her attorney found out that McDonald's had intentionally increased the temperature of their coffee to about 40F hotter than what comes out of your coffee maker at home (some believe to save a few pennies a pot on grounds, though that's never been proven), that hundreds of others had likewise filed claims with third-degree coffee burns, and that McDonald's had settled some of those cases for as much as half a mil.

Again, I'm not singling you out but rather am speaking to what sometimes seems like everyone who has an opinion about that case, but if her claim still sounds pathetic to you, then you have a very different definition of the term "pathetic" than I do.
posted by middleclasstool at 8:15 PM on November 24, 2008 [143 favorites]


The correct title for this post, by the way, was "Sucks."
posted by rokusan at 8:17 PM on November 24, 2008 [2 favorites]


This isn't about the specific laws but the people in charge of enforcing them (a point I've been struggling to make). The rest of us are powerless to stop it

The term "jury nullification" springs to mind. Of course if one ever voted to acquit a possible sex offender, even if you believe them to be innocent, one must be prepared to be considered either a pedophile or a pedo sympathizer by at least 4 idiots in the jury room. Having been on a couple of juries I'm convinced there are at least four idiots on every jury in America. YMMV in the Bible Belt where the number is probably closer to eleven.
posted by MikeMc at 8:18 PM on November 24, 2008 [2 favorites]


you know who was a child abuser?

THE HOLY GHOST.

that's right. the spirit of god raped a 14 year old so
"his son" could be spawned.

oh, and then, she goes to live with an old allegedly impotent
carpenter because she keeps telling him she's a virgin.

and this is the shit puritans are defending?
posted by liza at 8:19 PM on November 24, 2008 [7 favorites]


The coffee case gets snap negative reactions because of how many hours the McDonald's spin doctors logged on cable news television making fun of the victim. The facts pointed out above got about, oh, zero point zero zero screen time.

I remember that time. It's not that public knows nothing but makes up their own opinions, it's that they were fed (and swallowed) the talking points about "frivolous lawsuits" and "trial lawyers", and just repeat them reflexively.
posted by rokusan at 8:19 PM on November 24, 2008 [6 favorites]


I thought "I can sue for dropping my coffee on my lap, because I didn't expect it to be hot" was pathetic to even be heard in a court room
The case you're referring to is commonly used as shorthand for "absurd lawsuit", as you're doing here. The actual facts of the matter are a bit different than this casual, oversimplified, and all too common characterization.

McDonald's drive-throughs consistently and intentionally served their coffee far hotter than other restaurants would; pretty close to boiling, actually (something like 190 degrees Fahrenheit). Contact with liquid at this temperature causes third degree burns in seconds.

And that's what happened in this case. The woman in question got third degree burns, due to the intentionally, unnecessarily, unreasonably and unexpectedly high temperature of the coffee.

Third degree burns are serious injuries. This woman required skin grafts, and stayed in the hospital for over a week.

She initially tried to get McDonald's to merely help cover the medical costs - something like twenty grand. They refused, and it went to trial.

It came out in trial that McDonald's knew of hundreds of customers who had been burned by their coffee, that McDonald's knew that their standard coffee temperature was dangerous, that McDonald's knew that their coffee would burn people's mouths and throats if drank when served, and that McDonald's was intentionally keeping the temperature of the coffee that high anyway.

In light of these facts, the jury decided that McDonald's needed to be slapped with substantial punitive damages.

And the jury was right.

But, in the popular view, all of this was reduced to "Duh lady, coffee's hot".
posted by Flunkie at 8:20 PM on November 24, 2008 [33 favorites]


It's not that public knows nothing but makes up their own opinions, it's that they were fed (and swallowed) the talking points about "frivolous lawsuits" and "trial lawyers", and just repeat them reflexively.

As I patiently explain to my parents every time they go into a rage over some court case they read about on the CBC, the media also has no interest in presenting a balanced case. Outrage means eyeballs.
posted by Durn Bronzefist at 8:24 PM on November 24, 2008 [5 favorites]


"trial lawyers"

liberal trial lawyers who want to take away your freedom
posted by oaf at 8:25 PM on November 24, 2008 [3 favorites]


posted by orthogonality: Traditional values, like smear-the-queer and lynching blacks and ...

Oh my god. I just now get the phrase 'smear-the-queer'. We played it all the time growing up, good ol' smalltown, down-home America, and I guess I never even thought about it when I said it. Is there any other possible origin for that phrase/game?

sorry for the derail, but honestly, I'm a little disturbed by this

But on topic, this is something near another topic I have similar issues with-- the case of people convicted of felonies not being allowed to vote in some states. Disenfranchising someone completely from the democratic process or simply living life as a normal citizen is essentially a vote of no confidence in our corrections processes (which I don't entirely disagree with... but the point is we should be trying to make it better if that's what we truly believe).
posted by six-or-six-thirty at 8:26 PM on November 24, 2008


A man convicted of statutory rape several years ago in Indiana was told to move from his Muscogee County home, where he lives with his wife and their children. Like many offenders, he was found guilty of consensual sex with an underage teen. The former teenage victim is now his wife.

It's just insane.
posted by ThePinkSuperhero at 8:28 PM on November 24, 2008 [1 favorite]


Still, somehow it's okay if I am momentarily pretty much completely naked near underage boys using the grown-up locker room at my health club. What the hell is that?


It's only okay if you don't utter The Forbidden Sentence:

"Some people like oysters, some people like snails. I like oysters and snails."
posted by MikeMc at 8:32 PM on November 24, 2008 [2 favorites]


As I patiently explain to my parents every time they go into a rage over some court case they read about on the CBC, the media also has no interest in presenting a balanced case. Outrage means eyeballs.

I'd take that a bit further, and say that the media have little to no actual *capability* for presenting a decent report or analysis of legal cases, because very few journalists actually have much of a clue at all about how the law works. Otherwise, they'd be, y'know, lawyers.

So, they present it as they understand it - in layman's terms - with a bit of added spin to make the story appeal to the man on the Clapham omnibus.
posted by UbuRoivas at 8:50 PM on November 24, 2008


I'm sure we'll be tattooing their foreheads eventually.

I can't stop thinking of Star-bellied Sneetches.
posted by MikeMc at 8:53 PM on November 24, 2008 [2 favorites]


also, this is a problem in many developed countries. My favorite is the South Wales pediatrician who was forced out of her home due to poor spelling skills.

No it isn't. A couple of British kids over the age of 16 can happily suck each other off until the cows come home, regardless of their gender.
posted by PeterMcDermott at 9:00 PM on November 24, 2008


"You might be a sex offender if… you are a teen and you take pictures of yourself and send it to other teens."

...
CitrusFreak12: ...did you know we're both technically sex offenders.
Ex-girlfriend from high school: -_-
Ex-girlfriend: yes.
CitrusFreak12: ...huh.
Ex-girlfriend: I WAS ONLY A CHILD YOU WERE A BAD INFLUENCE ON ME
CitrusFreak12: I... do not have a witty enough response that doesn't sound like I'm awkwardly hitting on you.
Ex-girlfriend: hahaha
Ex-girlfriend: awkward
Thanks MetaFilter. You always lead to interesting conversations.
posted by CitrusFreak12 at 9:07 PM on November 24, 2008 [13 favorites]


What if they're a month shy of 16?
posted by fleetmouse at 9:09 PM on November 24, 2008


Good lord, I'd forgotten about smear-the-queer, and yeah, at the time I didn't think it meant anything except a made-up rhyming word for "smear."

So: remember that law being discussed recently, where they wrote it intending to let parents with newborns drop their kids off at a hospital instead of in a dumpster, that "safe haven" thing? And how the way it was written, some parents dropped off teenagers?

Well, these sex laws are similar. Someone writes them intending to solve a genuine problem. Trouble is, they're poorly written, with consequences that come from thinking "we've got to set it up broadly, and then the judges can narrow it as needed to keep the wrong thing from happening", but then judges won't narrow it because they're afraid of weakening the law so it isn't useful for solving the original problem -- and then they'll be that judge who wanted to see babies in a dumpster or children molested.

The key difference is the consequences; when the safe haven laws were being used in bad faith, it injured children by allowing their families to abandon them, and was burdensome to the state because it now had to care for these abandoned children -- and so the law is being rewritten. To not rewrite them is bad publicity; there is nobody standing up and claiming that there is anything bad about this rewrite.

When one of these sex offended laws is being used in bad faith, however, it injures adults (or almost-adults), and it's easy to point a finger at them and say they should have known better (as if any 16-year-old kid is thinking of sex offender laws when hooking up with a peer -- we're usually considering ourselves lucky if they're thinking of pregnancy and birth control, and so oral sex is a wise choice under those conditions!)

Couple that with no burden to the state, and the political danger of saying "protect these people who are being labeled as sex offenders" being turned to "he said he wants to protect sex offenders!" during the next campaign season, and nobody should be surprised that this is going on.

What makes it even worse, in my mind, is that it's for very little purpose. There's a registered sex offender near my house, and you know what? I have no idea if it's because he molested a child, or had child pornography, or had sex with a 17-year-old when he was 18, or engaged in homosexual behavior when it was illegal, or peed on a house. No idea. As a parent, that's incredibly frustrating.

Similarly, as evinced by the story pearlybob told above, not having that information makes it easier for people who should be labeled as dangerous to lie about it, because there's no way to know for certain. We enable the guilty to lie about their guilt, while simultaneously making it less likely that those caught in the net will be trusted; and that's before we even start talking about how wide the net is, and how much we should take it in.

When I was slightly underage, I was physically involved with overage girls; when I was slightly overage, I was physically involved with slightly underage girls. I know very few people for whom that sentence is not true. As for the whole oral sex thing...come on.

having said that: please don't pee on my house, or I'll start pushing the local government for a new list dedicated to that.
posted by davejay at 9:10 PM on November 24, 2008 [2 favorites]


No it isn't. A couple of British kids over the age of 16 can happily suck each other off until the cows come home, regardless of their gender.

And that would be relevant if both kids were over 16 when the act occurred.
posted by Snyder at 9:12 PM on November 24, 2008


I'd take that a bit further, and say that the media have little to no actual *capability* for presenting a decent report or analysis of legal cases, because very few journalists actually have much of a clue at all about how the law works. Otherwise, they'd be, y'know, lawyers.

Most decent newsrooms have a designated court journalist, and the CBC, in addition, has a member of the bar as sometime-commentator. There are a lot of disaffected lawyers out there who would snag a free journo job, I guarantee. Despite this, I've had to write in to correct numerous errors in their reporting of court cases, and they never provide links to actual judgments to allow people to consider whether these judgments are really all that outrageous for themselves. (even if not many would follow it up, fewer still would go searching for it on their own)

Now that's the CBC. I think they're partly sloppy, and partly desperate for eyeballs (see their experiment with open reader commentary). When the Post misrepresents a judgment, I look for obvious slant first.
posted by Durn Bronzefist at 9:14 PM on November 24, 2008


Oh America and your crazy puritanical laws.

I'm so sick of the shallow analysis that leads people to this conclusion.


What, these laws come out of nowhere, and are applied with such vigour by no-one?
posted by Artw at 9:15 PM on November 24, 2008 [1 favorite]


A 26-year-old college student on federal disability, Whitaker doesn't fit most people's image of a sex offender.

Actually, the only thing that doesn't correspond to the image is that she's female.
posted by Inspector.Gadget at 9:18 PM on November 24, 2008 [1 favorite]


Ugh.. Nancy Grace.. I can't even watch CNN now because I associate the CNN logo with her face. I don't know what the CNN producers are thinking, but she is destroying that brand. Any day now, she's going to go down in a fabulous fiery lawsuit.

I have trouble believing most of those child predator / registry / house sign laws would survive a constitutional challenge. But who would dare mount one? It's quite literally suicide.

The ACLU would for one. They're already baby killing, Christian hating, homosexual helping, terrorist loving commies, might as well defend the child rapists while they're at it. Reminds me, I should donate again.
posted by formless at 9:18 PM on November 24, 2008 [12 favorites]


A couple of British kids over the age of 16 can happily suck each other off until the cows come home...

Not in my Alabama they can't!
posted by rokusan at 9:22 PM on November 24, 2008


Now that's the CBC. I think they're partly sloppy, and partly desperate for eyeballs (see their experiment with open reader commentary).

My favorite is when procedural rulings are reported as substantive rulings.
posted by Mr. President Dr. Steve Elvis America at 9:23 PM on November 24, 2008 [2 favorites]


I'd take that a bit further, and say that the media have little to no actual *capability* for presenting a decent report or analysis of legal cases

And I'd take that even a bit more further and say the people don't want to be educated by their TV. Driving home tonight I caught on KQED radio a half-hour Q&A public talk with Liz-Ann Saunders, chief investment strategist with Charles Scwab. The broad could TALK -- really lay out her economic thinking and knowledge of the present financial crisis. I've been mainlining financial blogs for over 2 years now but I still felt my IQ was going up a point a minute listening to her.

And then I realized the chances that this program format would be on cable TV would be about 0.0. People want entertainment when the turn on the boob tube. Boring stuff is for work.
posted by troy at 9:26 PM on November 24, 2008


Ruining that poor woman's life and for what? Some psycho judge decided to commit extended social torture and scapegoating that lasted a decade?!

Georgia's laws are nuts. If one goes to the coroner's office, sees a corpse and inadvertently says, "Oh shit." Boom, one can be arrested.
posted by nickyskye at 9:29 PM on November 24, 2008


oh dear, this is terribly inappropriate. but... there are 69 replies to this... right now.
posted by lapolla at 9:31 PM on November 24, 2008


My favorite is when procedural rulings are reported as substantive rulings.

ARGH. Kills me.

People want entertainment when the turn on the boob tube. Boring stuff is for work.

Well, I'm sure there are plenty of folks out there like my mom and dad. Their favourite shows? Nova, The Fifth Estate, the old W5, Frontline, and anything on The Passionate Eye (docs). But they still fall prey sometimes to the sensationalistic outrage-tickling one-sided reporting in the MSM. I mean, they watch the evening news, too, and that's by far the biggest blood pressure lifter. Which is fine if you're getting upset about real stuff, but PREDATORS ON OUR STREETS and O LOOK WHAT THE NASTY ACTIVIST JUDGE DID gets to people after awhile.
posted by Durn Bronzefist at 9:32 PM on November 24, 2008


A couple of British kids over the age of 16 can happily suck each other off until the cows come home...

What if they didn't realise that the cows had come home (say, if a malicious neighbour had removed the cowbells) - would that still count as a crime?
posted by UbuRoivas at 9:32 PM on November 24, 2008


Maybe I'm just not paying attention, but stupid stories like this one don't usually come up in other developed countries of the world.

Sure they do. Not always about sex laws, but strange consequences of well-intentioned but ill-considered laws happen everywhere. Ask a British farmer about refrigerators some time.

The EU issued a regulation requiring all old refrigerators to be recycled through a plant that could capture the freon and not let it escape into that atmosphere. Problem is, no one actually built any such plants in Britain, but the law makes it illegal for anyone else to pick up and dispose of old refrigerators.

So people who had old refrigerators drove out into the countryside in the middle of the night into farm land and dumped them by the side the road.

I see you're from Canada. Free Speech Persecution Courts, eh?

None of which excuses this travesty.
posted by Class Goat at 9:34 PM on November 24, 2008 [2 favorites]


* You might be a sex offender if… you allow your teenage daughter to have sex or don’t do enough to stop her from getting knocked up

heeeyyyy, perhaps we can get a certain Gov of a Northern state classified as..... oh never mind, it's a bad idea
posted by edgeways at 9:36 PM on November 24, 2008


Reminds me, I should donate again.

You should, all of you (and yes, I did).

Unashamedly card carrying member since 1990.
posted by MikeMc at 9:38 PM on November 24, 2008


I'm mad as hell, and I'm not going to take it anymore.
posted by billypilgrim at 9:46 PM on November 24, 2008 [3 favorites]


Just another reason I am glad I moved out of Georgia. At least in other places in the US the laws are just a tad bit more forgiving.
posted by Chan at 10:03 PM on November 24, 2008


Oh America and your crazy puritanical laws.

I'm so sick of the shallow analysis that leads people to this conclusion. This is a case of poorly written laws that have been applied in an unjust manner. Taking the sexual abuse of children seriously is not puritanical, it's progressive. It's about standing with the subordinated and fighting against hierarchical and abusive relationships. In this case, the laws have been used in a terrible manner and they often are overbroad.


In general extremely harsh punishments for any crime are not progressive. Perhaps not necessarily puritanical but draconian. Are there cases where draconian laws don't have spillover into extreme punishments for the less horrible cases? And if there's few as I suspect then the "Taking the sexual abuse of children seriously" which in and of itself is a perfectly acceptable statement, translates easily into nasty consequences for those who aren't guilty of monstrosities even if there's additional causes in this particular case.
posted by kigpig at 10:11 PM on November 24, 2008


Jesus, I learned a lot in this thread. I have a friend who's a sex offender because he slept with a girl who showed him a fake ID (he met her at an AA meeting, for god's sake!) who was 17. Her parents pressed charges. Peeing in public I had a vague idea about, but honestly didn't realize was the sort of thing that could result in a life of handing out flyers making neighbors aware of your status whenever you move (I'm sure that's not true everywhere, but for my friend, it is the reality).

The fact that oral sex over regular intercourse is somehow more punish-worthy? Honestly, that I expected. Although it still baffles me.

I realize these laws vary by state, but then you're forced to live in places where the law is more lenient, if you want a semblance of a normal life. I suddenly feel a bit more paranoid and wish I didn't have a bladder at all.
posted by Unicorn on the cob at 10:24 PM on November 24, 2008


Taking the sexual abuse of children seriously is not puritanical, it's progressive.

What does "progressive" even mean? The progressives of the early 20th century were a bunch of racist teetotalers. Look at Woodrow Wilson's record on race, the guy was far more racist then previous presidents, and did a lot to turn back the clock on civil rights. It was also the progressives who pushed temperance and eventually prohibition.

Prosecuting a 17 year old having sexual relations with a 15 year old is certainly in line with that strain historical progressivism, at least in the sense of devaluing individuals who get in the way of progress.

Of course lately Liberals have started calling themselves "progressives" since the word "liberal" has become a slur, but modern "progressives" are mostly just 1960s style liberals. I mean, I seriously doubt early 20th century progressives would have supported medical marijuana or gay marriage.
posted by delmoi at 10:26 PM on November 24, 2008 [3 favorites]


This matter is not merely unjust because of its occasional intersection with a vaunted identity politics. The victims of these laws are quite often guilty-as-sin men, the unsympathetic, the lowest of the low, and it's still just as wrong when it happens to them.

Someone, please explain to me how applying unique, draconian punishments to our most reviled classes of criminals has ever delivered commensurate levels of general deterrence. Please demonstrate to me that terrorists and child molesters are capable, en masse, of whipping out the Bentham calculus and concluding, in the vacuumed logic of a ENIAC, that rationality stays my hand. Idealistic nonsense.
posted by kid ichorous at 10:34 PM on November 24, 2008 [4 favorites]


I already don't like the whole lifetime sex-offender punishment they're going for, but I think they're taking it so far that they're creating something dangerous. If there are people out there who are legitimately trying to overcome whatever might have led to a sex offense (or, as in this case, who are prosecuted overly vigorously), I can't imagine less incentive than to tell them they'll forever be treated like criminals no matter what their actual beliefs or actions. The system is creating people who have nothing left to lose, and that's not a good thing.
posted by troybob at 10:35 PM on November 24, 2008 [2 favorites]


Could someone actually produce proof (such as a published newspaper article) that someone ended up on the sex offender registry by peeing in public?

In my state, statutory rape is not enough to end up on the sex offender registry, so these anecdotes about peeing in public putting you on the registry don't sound plausible. I don't think any of you can back it up with proof, but if you can, I would love to see it.
posted by jayder at 10:36 PM on November 24, 2008


A couple of British kids over the age of 16 can happily suck each other off until the cows come home...

Not in my Alabama they can't!


British sodomites in my Alabama?

It's more likely than you think.

Sign up for a free sodomite witch hunt today!
posted by MikeMc at 10:37 PM on November 24, 2008


This is insanity.

I think we all need to make a website that lists every time a law is applied in a way that strikes us as unfair.

Let's call it myfavoritevictimofunjustlaws.com.
posted by jayder at 10:45 PM on November 24, 2008


these anecdotes about peeing in public putting you on the registry don't sound plausible

I would imagine the charge to be "indecent exposure" as opposed to "peeing in public". There's always the guy in Illinois who grabbed a teen girl by the arm in an arguement and is now a sex offender (something about "predicate crimes" or somesuch).

Last summer, an Illinois man lost an appeal on his conviction as a sex offender for grabbing the arm of a 14-year-old girl. She had stepped directly in front of his car, causing him to swerve in order to avoid hitting her.

The 28-year-old Fitzroy Barnaby jumped out of his car, grabbed her arm and lectured her on how not to get killed. Nothing more occurred. Nevertheless, that one action made him guilty of "the unlawful restraint of a minor," which is a sexual offense in Illinois. Both the jury and judge believed him. Nevertheless, Barnaby went through years of legal proceedings that ended with his name on a sex offender registry, where his photograph and address are publicly available. He must report to authorities. His employment options are severely limited; he cannot live near schools or parks.

posted by MikeMc at 10:47 PM on November 24, 2008 [10 favorites]


In general extremely harsh punishments for any crime are not progressive
People are confusing sentencing with substance. The fact that it's illegal to abuse any child, including your own, is a change from hundreds of years of legal history that allowed widespread molestation under policies such as the castle doctrine. Much like the abandonment of marital rape exemptions, this is a new step for the law. If a state sent people to jail for 1000 years for securities fraud, it would be absurd, but it wouldn't mean that we shouldn't criminalize securities fraud. Of course, we should expect the preservation of privilege through the transformation of the status quo and unsurprisingly these laws are being applied to stand-in for unenforceable anti-miscegenation laws.

Again, I think people have the wrong target in their focus. Many of these stories that became sensationalized do represent manifest injustice. That injustice is found in draconian sentencing laws, poorly drafted statutes, broken prisons, and overzealous prosecution. I obviously don't think it should be criminal for two sixteen year-olds to have consentual sex (although we need to start asking where we draw the line, why children are having sex younger and younger, whether this is developmentally sound, if we're encouraging healthy behavior and so on). That said, people who rail on sexual offender laws seem to miss the forest for the trees. Taking the abuse of subordinated individuals seriously is not something you find often in American jurisprudence. The fact that it's done poorly in Georgia should shock nobody.
posted by allen.spaulding at 10:59 PM on November 24, 2008


Well, these sex laws are similar. Someone writes them intending to solve a genuine problem.

That problem is usually "how to get re-elected."
posted by grouse at 11:04 PM on November 24, 2008 [6 favorites]


I wonder how a lot of these peeing-in-public stories get handed around.

"Jim! I saw your picture on a flyer on a telephone pole! What was that about?"

"You saw that? Well, see, I, uh, was drunk in a park, and I had to urinate, and I guess there was some woman around who saw me...."
posted by nathan v at 11:20 PM on November 24, 2008


The victims of these laws are quite often guilty-as-sin men, the unsympathetic, the lowest of the low, and it's still just as wrong when it happens to them.

Your comment reminded me of this interesting story about a "sex offender cluster" in Long Island- 45 in one small town, 17 on one street in that town, and 7 living in a house together.
posted by Thin Lizzy at 11:28 PM on November 24, 2008 [2 favorites]


davejay: Well, these sex laws are similar. Someone writes them intending to solve a genuine problem.

grouse: That problem is usually "how to get re-elected."


I hate to get all "won't someone think about the children" here, but it does bear considering that laws protecting children from sexual exploitation and abuse are a good thing.

I am far less outraged by Wendy Whitaker's situation than most of you seem to be. I suppose my attitude is that every law is going to have some marginal cases it is applied to that seem shockingly unfair, and it's hard for me to get outraged about that. We make judgments all the time to "err on the side" of certain favored policies.

And reading the article, I couldn't help thinking, "maybe she shouldn't have blown the guy in a classroom full of students." Perhaps the fact that she fellated the guy in full view of a classroom of students had something to do with it being taken more seriously than if they were at home in private.
posted by jayder at 11:40 PM on November 24, 2008


I think too much of this registered sex offender issue (for the obviously miss classified public indecency / 1 year age gape sexual exploration, etc) has come as a result of the prosecutors and the DA's not wanting to be seen as soft on sex crimes.

It doesn't matter if the Whitaker was 17 and her partner 16. She is a convicted sex offender, and Joe Smith District Judge let her live near X,Y,Z and work with children. Vote for Bob Smith instead, and Susan Smith for mayor, because she assisted in the pardon of this CONVICTED sex offender.

Or the fact that if they did let one person off easy could come back to bite them in some Willie Horton-esque fashion in the future.
posted by mrzarquon at 11:52 PM on November 24, 2008


I hate to get all "won't someone think about the children" here, but it does bear considering that laws protecting children from sexual exploitation and abuse are a good thing.

Sure does. But it also bears considering that preventing teenagers who had oral sex with other teenagers from living near a day care center nine years later does absolutely nothing to protect children from sexual exploitation or abuse.
posted by grouse at 12:02 AM on November 25, 2008 [6 favorites]


Their worldview is that they would rather a hundred innocent people punished than one guilty man go free.
posted by Iax at 12:14 AM on November 25, 2008 [3 favorites]


I suppose my attitude is that every law is going to have some marginal cases it is applied to that seem shockingly unfair, and it's hard for me to get outraged about that.

Because it doesn't seem at all unreasonable that a seventeen year old kid should be stigmatized for the rest of her life, simply for engaging in a consensual act that hurt nobody and that the rest of us take for granted?

Even the Georgia Legislature was outraged by how unfair these cases are that was moved to change the law. It must be weird to be even less compassionate about such matters than a bunch of good ol' boy lawmakers.

And reading the article, I couldn't help thinking, "maybe she shouldn't have blown the guy in a classroom full of students."

Why bother planting a burning cross on her lawn when you can get the state to ruin her life on your behalf, amirite?
posted by PeterMcDermott at 12:47 AM on November 25, 2008 [3 favorites]


I think any questions about how that whole Nazi Germany thing started and went on for so long have been thoroughly answered. Jolly good! Carry on!
posted by Artw at 12:57 AM on November 25, 2008 [1 favorite]


Could someone actually produce proof (such as a published newspaper article) that someone ended up on the sex offender registry by peeing in public?

Here's one:
"Juan Matamoros's full bladder is going to cost him. Twenty-one years ago, he had too much to drink, and was caught when he urinated on a street in Essex, Massachusetts. Matamoros was charged with "lewd and lascivious behavior" — which apparently got him classified as a sex offender. He currently lives in Deltona, Florida, with his wife and two young sons, but he's been ordered to pack up and move."
The problem is, public urination usually falls under the category of "indecent exposure" and, depending on the state, one or more arrests for this charge can land you on the sex offender registry. New Hampshire has taken pro-active measures to make public urination its own charge, so that people arrested for this don't land on the sex offender registry.

So it does happen that poorly written laws cast too wide a net. Whether they were written with good intentions or out of puritanical hysteria is irrelevant. They can and should be corrected to do what they were intended to do.
posted by Marisa Stole the Precious Thing at 1:06 AM on November 25, 2008 [4 favorites]


jayder writes "I am far less outraged by Wendy Whitaker's situation than most of you seem to be. I suppose my attitude is that every law is going to have some marginal cases it is applied to that seem shockingly unfair, and it's hard for me to get outraged about that. We make judgments all the time to 'err on the side' of certain favored policies."

She's going to lose her house because, as a kid -- and thus according to our laws, too immature to give consent -- she did something that harmed no one.

She has to register with the government, she can't go near churches or day cares because she did something that almost all of us have done. Sure, she should have done it in private -- but the crime would have been the same in private or in public.

But hey, says jayder, you can't make an omelet without breaking eggs. The trains have to run on time. It's policy, and we have to apply it blindly. Zero tolerance. Life's unfair. Too bad for her, but it's no skin off jayder's ass.

Indeed, in another comment, jayder explains that he simply can't believe sex offender laws can be over-broad: "these anecdotes about peeing in public putting you on the registry don't sound plausible. I don't think any of you can back it up with proof, but if you can, I would love to see it."

Jayder's certain that can't have happened, that these laws never impact the safe, the respectable, the Christian middle class, the petit bourgeois backbone of our national moral fiber. These laws are for sluts and whores and n-----r lovers and perverts. Not for real people, good hard-working middle class people. Not for people like jayder. And so, of course being (he insists) beyond the reach of these laws, he can find in himself no outrage against them.

Jayer's in fine company, you know. All the fine folks who shrugged and said, "well, the Fugitive Slave Law is going to have some marginal cases, but we can't upset the apple-cart, so we'd better turn these escapees in." All the good people who opined that the Nuremberg Laws were quite legally passed. All the upstanding and un-uterus'd men who could see no point in making abortion legal. All the good straight Christians who agreed that homosexuality was a crime and a mental illness and that those perverts should never teach in schools or adopt children or get married like good normal people.

How nice it is, to be so respectable, so middle-class, so privileged, so white or Aryan or straight, that you know that certain laws will never apply to you, and so will never merit your outrage. And you can even be broad-minded enough to admit (with wave of hands and a shrug of your shoulders) that sometimes, yes, there are marginal cases, (we can call those cases Mischlinge, if you will, from the Nazi term for someone part-Jewish), and oh how unfortunate, what a pity it is that the majesty of The Law requires that those in that gray area must perforce also suffer.
("Are there no prisons?" asked Scrooge.
"Plenty of prisons," said the gentleman, laying down the pen again.
"And the Union workhouses?" demanded Scrooge. "Are they still in operation?"
"They are. Still," returned the gentleman, "I wish I could say they were not."
"The Treadmill and the Poor Law are in full vigour, then?" said Scrooge.
"Both very busy, sir."
"Oh! I was afraid, from what you said at first, that something had occurred to stop them in their useful course," said Scrooge. "I'm very glad to hear it.")
As long as these laws don't encroach on jayder's petit bourgeois existence, as long as they just affect the poor, the sick, the disposed, the ratty ugly white trash and unseemly ethnics, there's really no outrage to be found.
posted by orthogonality at 1:24 AM on November 25, 2008 [44 favorites]


although we need to start asking where we draw the line, why children are having sex younger and younger

Historically and biologically speaking, sixteen is old. The weird developmentally unsound thing is forcing people to restrain a natural and utterly healthy urge until some arbitrary number (or ritual) has been passed.

Does this comment put me on the registry?
posted by Lentrohamsanin at 3:45 AM on November 25, 2008 [7 favorites]


Why, for fuck's sake, didn't this prosecutor allow retroactive immunity? And why didn't the court case? Can she maybe push for lack of retroactive immunity to qualify as cruel and unusual? Why isn't the lack of retroactive immunity being challenged? I see no upsides to selectively applying retroactive immunity. None at all.
posted by saysthis at 3:46 AM on November 25, 2008


I suppose my attitude is that every law is going to have some marginal cases it is applied to that seem shockingly unfair, and it's hard for me to get outraged about that.

Metaffender.
posted by gman at 4:26 AM on November 25, 2008


I wonder what would happen if people like this guy and the people caught peeing in public simply refused, en masse, to register as sex offenders (which, in reality, they are not).
posted by oaf at 4:40 AM on November 25, 2008


Rapists must not be allowed to live near or work with anyone who can be raped. Muggers must not be allowed to live near or work with anyone who carries money. Carjackers must not be allowed near streets or cars. Arsonists must not be allowed within 1000 meters of gas stations. White-collar criminals must be banned from working for or with corporations. Speeders must never be allowed to own or drive fast cars. Jaywalkers must not be allowed to cross the street. Tax cheats must be banned from using publicly funded services. All people who break laws must be put on public lists and must be forced to update their addresses on these lists each time they move.

Only then will we all be able to sleep at night in our publicly known age-restricted single-sex supervised group homes in walled compounds on the outskirts of abandoned towns.
posted by pracowity at 4:51 AM on November 25, 2008 [7 favorites]


I am far less outraged by Wendy Whitaker's situation than most of you seem to be. I suppose my attitude is that every law is going to have some marginal cases it is applied to that seem shockingly unfair, and it's hard for me to get outraged about that.

So in other words, injustice doesn't bother you. Okay.

We make judgments all the time to "err on the side" of certain favored policies.

When you "err" you make a mistake, do something wrong. But you say does it anyway because it's more convenient then writing in enough edge cases or wiggle room. Obviously if you don't care about doing the right thing, if you're going to treat people like interchangeable parts of a whole who only matter in aggregate legislating is easy. But that's obviously a very different world view then mine.

I wonder what would happen if people like this guy and the people caught peeing in public simply refused, en masse, to register as sex offenders (which, in reality, they are not).

Um, someone else would register them? I don't really think it's optional.
posted by delmoi at 5:33 AM on November 25, 2008


Um, someone else would register them? I don't really think it's optional.

That's my point. It's optional if you're not a sex offender. Grabbing someone's arm does not make you a sex offender, unless you have prehensile naughty bits.
posted by oaf at 5:45 AM on November 25, 2008


tilting at windmills is, of course, doubly futile when hoisted on a petard - your assault would be derailed before it even got off the ground.

Don't you think it would be derailed right after you got hoisted off the ground?
posted by autodidact at 5:59 AM on November 25, 2008


It's about standing with the subordinated and fighting against hierarchical and abusive relationships.

But those who have to endure a life-long punishment are somehow exempt from this (not to mention the abusive relationship of laws meant to serve victims and the condemned alike), especially if some historically abused group is involved.

That said, there is nothing puritanical about fighting injustice and that's what lies at the core of these laws.

And if fighting injustice only serves to promote further, different injustices; what then?

And the rest of your comments read like if only philosopher kings and the enlightened could decide these cases, then these abuses wouldn't happen.

But they do happen. And now a Ms. is being forced from her home.
posted by quintessencesluglord at 6:06 AM on November 25, 2008


You have the freedom to avert your eyes, you puritanical douchebags!
posted by seanmpuckett at 6:20 AM on November 25, 2008


And if fighting injustice only serves to promote further, different injustices; what then?

The whole point is that it does not "only" do this.

Look, just about everyone here, at some point in the past few months, when reading about AIG, or various members of the Bush Administration, has thought "fuck those bastards, throw the book at them." Indeed, white-collar laws such as insider trading are abused and occasionally overzealous pursued, while the really terrible guys often get away. Does this mean we should never go after white collar criminals? Are people on MetaFilter significantly different than suburbanites (many of whom are child molesters themselves) who spit on their neighbors and demand the book be thrown at everyone who might come in contact with little Suzie and Johnny?

Understanding why things go wrong and how to best address these problems is hard. Grandstanding and making bad Niemoeller-esque statements is easy. Just because a law is unjustly applied does not mean that the class of laws should be thrown out. And I like throwing out babies when the bathwater gets too toxic. Yet we just don't have enough laws protecting the vulnerable. It's amazing what you can get away with in America, where violence and abuse are regular parts of the lives of millions. Let's focus on the real problems and not grandiose statements about these laws.
posted by allen.spaulding at 6:30 AM on November 25, 2008 [1 favorite]


When she stops by to check on the property or do laundry, she says, her neighbors routinely call the cops, who drop by to make sure she isn't trying to move back in.
Lovely neighbors she has....
posted by ShadowCrash at 6:42 AM on November 25, 2008


You have the freedom to avert your eyes, you puritanical douchebags!

No, dammit! We have to see what's in the Ark!
posted by robocop is bleeding at 6:50 AM on November 25, 2008


Georgia's State Motto: Wisdom, Justice, and Moderation Foolishness, Injustice, and Zero Tolerance
posted by bwg at 6:59 AM on November 25, 2008 [1 favorite]


Let's focus on the real problems and not grandiose statements about these laws.

Cases like those of Genarlow Wilson and Wendy Whitaker are the real problems.
posted by grouse at 7:18 AM on November 25, 2008 [2 favorites]


She was 17, he was 15. IANAL, but any statutory rape law that makes this illegal is stupid. It's certainly possiblt that race made it more successfully prosecuted. It's a good article:
In 1997, Whitaker, who had recently turned 17, was sitting in the back corner of a high-school classroom, when the teacher dimmed the lights to show a video. The boy sitting next to her suggested that no one would notice if she gave him a blowjob in the dark. So she did.

They were caught, of course. Whitaker was expelled from school and found herself facing sodomy charges. The boy, a 10th-grade classmate, was 15, although Whitaker says it didn't occur to her at the time that he was a few months shy of the age of consent. He also was black, a fact that she feels provoked a harsher reaction from local officials.


I talked to a local Asst. DA about this issue not long ago. They don't love these laws, and they spend way too much time enforcing them. Grandstanding legislators make these laws to look good to voters. They waste a lot of court time before they're overturned. In the meantime, real abuse is getting lost in the mess. Sexual abuse of minors, sexualization of children, child pornography, are real problems that deserve the attention of legislators, law enforcement and the courts.
posted by theora55 at 7:26 AM on November 25, 2008


Grandstanding and making bad Niemoeller-esque statements is easy.

Excuse me? I not contextualizing what seems to be a clear case of draconian penalties as a do nothing approach towards child welfare, or worse, a necessary casualty in the name of equal protection. The patronizing speech on the history of child welfare is only an added bonus.

And it seems to me you're arguing for sex offender registries as long as they serve your worldview and positions you hold dear.

And no, lecturing on the need to protect children does not make these laws okay. Even victim's rights groups stress the need for reintegration of criminals as the most effective long term means of reducing recidivism. Sex offender registries marginalize folks, forever branding them as outside of society, making reintegration all but impossible, which tends to lead to further crime.

Understanding why things go wrong and how to best address these problems is hard.


Could we start with how having a distinct set of punishments for sex crimes is puritanical at its core?
posted by quintessencesluglord at 7:27 AM on November 25, 2008 [1 favorite]


10:27 AM Could we start with how having a distinct set of punishments for sex crimes is puritanical at its core?

Differentiating between rape and assault is puritanical now? Let's not lose all granularity.
posted by butterstick at 7:48 AM on November 25, 2008 [1 favorite]


As someone who was sexually abused as a child, I've often wondered if these kinds of draconian sex offender laws are around to distract from the simple fact that most children who are sexually abused are abused by family members and friends of the family.

One can't question the sanctity, purity and perfection of the family, after all.
posted by QIbHom at 8:07 AM on November 25, 2008 [6 favorites]


Even if you don't see it from the perspective of the supposed offender, it only makes sense that more time and money spent to monitor people who are not true offenders is less time and money devoted to going after real ones.
posted by troybob at 8:38 AM on November 25, 2008


oaf: I wonder what would happen if people like this guy and the people caught peeing in public simply refused, en masse, to register as sex offenders (which, in reality, they are not).

They'd go (back) to jail? I mean, who in government would care?
posted by desjardins at 8:56 AM on November 25, 2008


Cases like those of Genarlow Wilson and Wendy Whitaker are the real problems.

I mean, again, this sounds good, but is sort of contentless. The real problem with these cases is the drafting of the laws and the ways they were prosecuted, not the existence of laws criminalizing the sexual abuse of children.

And it seems to me you're arguing for sex offender registries as long as they serve your worldview and positions you hold dear.

I haven't said a thing about registries, but everyone here is missing the hard question. Registries are virtually inevitable with modern communication and an open, transparent judicial system. So long as the outcomes of trials are publicly available, someone will make a registry. In the past, this was less of a concern because of the cost of gathering and disseminating the information, but that's not true now. It seems that people that normally support open government, transparency, and the freedom of information are now arguing that government should seal records and individuals should be kept in the dark about important issues because the public might not be able to handle it.


Whether or not people on a registry should be restricted in particular manners is a side question that mirrors this debate as well. The restrictions are almost always extremely problematic, no question, but again, a lot of the anger should be focused on implementation. I hope that many in here are ok with reasonable restrictions when the alternative may just be additional jail time. If the restrictions distinguished between offenses in a more serious manner, then we'd start moving in the right direction. I suspect many critics of these laws in this thread would support well-drafted measures that prohibited those convicted of molesting children under 10 from becoming foster parents. These issues are even tougher given uncertain social science research that may or may not indicate whether or not pedophilia can be rehabilitated or treated at all. It's often hard to accept that there might be some things about an individual that can never be changed, but utopian views of human nature don't always gel with good social policy.

most children who are sexually abused are abused by family members and friends of the family.

This bears repeating and it's why shows like To Catch a Predator are deeply problematic in their treatment of the issue. One of the great successes about these laws is that they apply to family members too. Sadly, they are rarely prosecuted as such and instead become instruments of racial hatred in the hands of despicible prosecutors.
posted by allen.spaulding at 9:06 AM on November 25, 2008


nickyskye: Georgia's laws are nuts. If one goes to the coroner's office, sees a corpse and inadvertently says, "Oh shit." Boom, one can be arrested.

Ha! South Carolina laws are even better. Just say "shit" or conduct oneself in a "boisterous manner" in public and you can go to jail.
SECTION 16-17-530. Public disorderly conduct. [SC ST SEC 16-17-530]

Any person who shall (a) be found on any highway or at any public place or public gathering in a grossly intoxicated condition or otherwise conducting himself in a disorderly or boisterous manner, (b) use obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church or (c) while under the influence or feigning to be under the influence of intoxicating liquor, without just cause or excuse, discharge any gun, pistol or other firearm while upon or within fifty yards of any public road or highway, except upon his own premises, shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or be imprisoned for not more than thirty days.
I suspect other states have similar statutes, but this one was hard enough to find. (Still, ignorance of the law, you know it's no excuse...)

We're all criminals, we all could be arrested at any time, but we put up with it because enforcement is so spotty. And, of course, these laws are applied to Other People. As enforcement improves (thanks to increased citizen surveillance, databases, etc.), bad laws become a bigger problem.
posted by LordSludge at 9:13 AM on November 25, 2008 [1 favorite]


The real problem with these cases is the drafting of the laws and the ways they were prosecuted, not the existence of laws criminalizing the sexual abuse of children.

You think anyone here is arguing that the problem is "the existence of laws criminalizing the sexual abuse of children?" That may be the biggest straw man ever posited on MetaFilter. And that's saying a lot.
posted by grouse at 9:15 AM on November 25, 2008 [4 favorites]


who in government would care?

If the fact-finding doesn't pass the smell test, you can appeal.
posted by oaf at 9:24 AM on November 25, 2008


You think anyone here is arguing that the problem is "the existence of laws criminalizing the sexual abuse of children?"

No, but usually in these debates and certainly in this thread, people are not distinguishing between the existence of these laws, how they are drafted, and how they are enforced. Overly broad statements such as "these laws are stupid" and "we've gone way too far" are common as the idea that these laws existence is due solely to crazed mouth-foaming suburban parents and omg puritans. I'm just trying to disaggregate these claims, show what the real problems are, and salvage one of the few laws in America that stands with the subordinated. Law is almost everywhere a tool of the powerful, both in substance and in enforcement. These laws are not the latter and needn't be the former, but people seem more interested in talking about Nazis.
posted by allen.spaulding at 9:27 AM on November 25, 2008


I think I switched former and latter. Er, there is a difference between former and latter, but it is purely geometrical and there is nothing behind the geometry
posted by allen.spaulding at 9:28 AM on November 25, 2008


There's a connection here to the problem of mandatory minimum sentences, with politicians who don't trust courts imposing rigid requirements that don't fit all cases.
posted by raf at 9:29 AM on November 25, 2008


I've never been able to understand how sex offender registries and their ongoing lifetime of punishment and restriction are not on their face unconstitutional. The basis of our justice system is that if you commit a crime and you are convicted of the crime, you are punished. Then when the punishment is over you are done being punished for that crime and you go on with your life.

Registries and ongoing permanent punishment seems really quite obviously antithetical to this. Why do we still have them?
posted by rusty at 9:39 AM on November 25, 2008 [1 favorite]


To protect the children, rusty. To protect the children.
posted by graventy at 9:55 AM on November 25, 2008


allen.spaulding
I haven't said a thing about registries, but everyone here is missing the hard question. Registries are virtually inevitable with modern communication and an open, transparent judicial system. So long as the outcomes of trials are publicly available, someone will make a registry. In the past, this was less of a concern because of the cost of gathering and disseminating the information, but that's not true now. It seems that people that normally support open government, transparency, and the freedom of information are now arguing that government should seal records and individuals should be kept in the dark about important issues because the public might not be able to handle it.


We aren't talking about the action of private citizens, we're talking about the state. Sure, given the transparency of the judicial system, anyone can build a website that collects the names of convicted felons and their crimes. Their ability to act against those people is however limited by the state; they can't discriminate per housing laws, they can't vandalize their property for instance. This seems to be pretty reasonable to me, but it's not that what we're talking about, so it's kind of a strawman.

We're talking about the state acting against convicted felons after they have been released from punishment. Permanently. It's an odd outlier in the greater context of the system at best, and at worst it's predatory legislation used to curry favor with the masses at the expense of a minority population.
posted by butterstick at 9:56 AM on November 25, 2008


We aren't talking about the action of private citizens, we're talking about the state.

We're talking about a number of things. Private violence by neighbors is not about the state. Post-release restrictions are not as uncommon as you'd think. Felons are prohibited from gun ownership, in spite of the second amendment. Rusty throws out the word unconstitutional, but I'm not sure where this idea comes from. The idea of post-conviction restraints are not that surprising, as they could advance all of the goals of the penal system: rehabilitation, prevention, and punishment. There's no reason to think that preventing a pedophile from going to a playground would not advance these goals. The problem is the way that the restrictions are overly broad and apply to all convicted sex offenders, an increasingly large term that encompasses groups of individuals whose crimes in no way necessitate this treatment.
posted by allen.spaulding at 10:00 AM on November 25, 2008


allen.spaulding: The restrictions are almost always extremely problematic, no question, but again, a lot of the anger should be focused on implementation. [...] Sadly, they are rarely prosecuted as such and instead become instruments of racial hatred in the hands of despicible prosecutors.

You've made this argument a lot of times. It would help if you had something in the way of supporting evidence. Can you show, for example, that identical sex crimes involving black and white offenders, all other things being the same, are registered at different rates? Can you eliminate all confounding variables? Can you show that differences in sex crime convictions between races are entirely the product of prosecutorial misconduct and not of other factors? If not, why are you so certain that the primary problem with these laws lies in their susceptibility to racist implementation?

I see a bewildering number of arguments that, in asking whether something is just, apply one and only one test - does it produce racially and sexually democratic results? As if any injustice could become just once parceled out more even-handedly, and as if Equal Protection were infinitely more important than our obligations not to torture, not to adopt cruel punishments, not to invade privacy. Now, even-handedness is undoubtedly important; and it's certain that, in the past, it was undervalued as a measure of our politics. But that's no reason to overcompensate so grossly. We should not let it be the new cornerstone of all thought on human rights; it's just one metric of many.
posted by kid ichorous at 10:10 AM on November 25, 2008 [2 favorites]


I can provide citations if you'd like. I think there's very little debate within the academy that these laws, much like sodomy laws before them, are unevenly applied. The problem is not solely the result of prosecutorial misconduct - jury and judge bias play a large role as well.

I'm confused about the second part of your post though. I'm criticizing the laws for being used this manner, but where did I ever say this is the only test? If these laws were not applied in this manner and they were redrafted to avoid outrageous results like this, how would you criticize them? I do think equality is the fundamental driving force behind my opposition of torture, as I think it's inherently tied up with issues of domination and subordination. Like many, I have mixed feelings about the current state of privacy, which grew out of a history of allowing men to beat their wives in their homes.

I mean not to get all "liberty is just equality in schools" here, but I think fighting for equal justice goes pretty far in accomplishing these goals. Of course there are other concerns, but do you really think that there is overcompensation? When was the last time the Supreme Court upheld a substantive right under principles of equal protection?
posted by allen.spaulding at 10:24 AM on November 25, 2008


How nice it is, to be so respectable, so middle-class, so privileged, so white or Aryan or straight...

Hey, I'm all those things, and I'm still outraged. Should I feel good about myself for bucking the trend, then, or should you feel bad about yourself for injecting race into what was otherwise a very cogent and reasonable argument?
posted by davejay at 10:25 AM on November 25, 2008


welcome to Georgia
posted by dasheekeejones at 10:40 AM on November 25, 2008


Wisconsin lets one easily search online for any case brought against or by a person - civil or criminal. Anything from speeding tickets to divorces to small claims court to murder. I don't really understand how this is much different from a sex offender registry, except that where you live is not necessarily restricted, and it's a much less proactive system (an individual has to be motivated to search, rather than being proactively informed of a sex offender in their neighborhood). In the age of the Intertubes, all your transgressions are out in the open.

For the record, I don't agree with either system; Wisconsin's just encourages nosiness. I think you should have some legitimate reason (you're an employer, you're renting to the person) in order to do a background check. I will admit that I did use it to vet men I met online, and I stopped talking to ones who had anything beyond speeding tickets on their records.
posted by desjardins at 10:56 AM on November 25, 2008


allen.spaulding: I can provide citations if you'd like.

I've found some of my own. Why not compare the demographic breakdown of registered sex offenders with the total population?

As Appendix A shows, the majority of sex offenders in the FPPSS are male (95.5 percent), non-Hispanic (90.3 percent), U.S. citizens (96.4 percent), and white (64.3 percent) [...] Black males constituted slightly more than 16 percent of all sex offenders and were 37.5 years of age.

2006 census data:

White, not including the 23.2 million White Hispanic and Latino Americans: 66%
Black or African American alone: 13.4%

These numbers do not really support the idea of institutional discrimination in sex crime laws.
posted by kid ichorous at 11:27 AM on November 25, 2008


Oops: cite.
posted by kid ichorous at 11:28 AM on November 25, 2008


Interesting how commenters in this thread have been quick to point out the law's obligation to protect marginalized, "subordinated" groups in their defense of our current sex crime regime. What of the people who are accused of sex crimes? What of the people who are convicted of sex crimes? I doubt there's any category of person in America, or Western civilization at large, that's more universally reviled or more intensely and openly hated than someone convicted of a sex crime. And since the argument here seems to be that the law must protect marginalized groups, its failure to protect sex crime defendants/convicts from abuse by the system itself, never mind by vigilante citizens, strikes me as worthy of criticism.

You want to talk about unconstitutionality? How about the appalling display of doublethink demonstrated by our courts with Sexually Dangerous Person commitment statutes. Out of one side of their mouths, they say that a defendant charged with a sex crime is sane enough to stand trial and be criminally sentenced for his actions. Then, when the prison term is up, out of the other side of their mouths, they say that the defendant suffers from a mental abnormality. So now after being released from prison, the defendant is shipped off to a mental institution, where they can be held indefinitely until some underpaid public shrink decides they've made sufficient progress in "treatment." Oh, that whole thing about treatment of mental illness and punishment for criminal behavior being mutually exclusive? Apparently, according to the conservative wing of SCOTUS, that doesn't apply to sex offenders.

By the way, a requisite for "sufficient progress" means admitting guilt for the underlying offense. If you maintain your innocence, for any reason, that can be used as justification to keep you institutionalized for life. You must confess in order to qualify to be released in at least some states. Remind you of anything? (Incidentally, this principle can apply to parole decisions, too, even where there's overwhelming evidence of the "sex offender's" innocence)

Now, many people make vague reference to a dramatically higher rate of recidivism among sex offenders. In truth, sex offenders as a general population do not recidivate at a significantly higher level than other criminals. But that doesn't stop law-and-order types from hand-wringing about "protecting the children." Being disproportionally targeted for extreme or unique punishment based on sex crimes is a good indicator of just who is continually marginalized in our society. It's certainly a more effective marker than trying to pretend that nineteenth century cultural mores still exist today.

As for this particular case, it presents a sad and all-too-common example of innocent people being sacrificed on the altar of our own moral panic. (See also) What really registers with me is that this pattern is nothing new. We've seen it play out so many times, in so many other contexts, that we pay lip service to the lessons learned too late from the terrible fates of other victims of this kind of bloodthirsty, paranoid "justice," even as we play out the same tragic drama with someone else. It was Supreme Court Justice Frankfurter who said, "It is easy to make light of scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished. Heedlessly at first, then stealthily, and brazenly in the end."
posted by Law Talkin' Guy at 11:34 AM on November 25, 2008 [8 favorites]


When was the last time the Supreme Court upheld a substantive right under principles of equal protection?

Striking down the death penalty comes to mind.
posted by Law Talkin' Guy at 11:51 AM on November 25, 2008


When was the last time the Supreme Court upheld a substantive right under principles of equal protection?

Lawrence v. Texas
posted by desjardins at 12:39 PM on November 25, 2008


I agree with your serious points, but:

I doubt there's any category of person in America, or Western civilization at large, that's more universally reviled or more intensely and openly hated than someone convicted of a sex crime.

Scientologist furries.
posted by ROU_Xenophobe at 12:46 PM on November 25, 2008


Yes, the law is wrong. Yes, it shouldn’t be on the books the way it is.
Still - who the hell prosecutes such a thing? Where’s the judge on this?

It’s incredible just how many institutions have to fail* and how many people have to be just plain pigheadedly stupid for something like this to occur.

*as a conservative the destruction of core institutions greatly concerns me. And indeed, these unyeilding puritanical standards that lead to injustice are on par with any fanatic ideology in its effect. While I have differences with some progressive perspectives, those differences are mostly in method, and shallow compared to the opposition both perspectives share - must share - against this kind of perversion of the intended foundation of the law to protect children, twisted and distorted to force a young woman to pay legally and socially and continue to pay as an adult.

The problem is that people so often want to believe in some impossibly idealized state of childhood that they refuse to recognize the practical realities which would ultimately lead to a healthier and safer environment for children.

These people are looking for someone to blame rather than recognize the steps necessary to accomplish the goal of protecting kids from predators.

Reminds me of the folks who are so pro-life and are thrilled when I agree with them, but suddenly get turned off when I mention adoption programs, talking to kids about safe sex and other practical methods of preventing unwanted pregnancies (and therefore abortions).

Somehow I think protecting kids isn’t, y’know, their goal.
posted by Smedleyman at 12:46 PM on November 25, 2008


Last things first

Law Talkin' Guy - Furman wasn't an equal protection clause case, but an Eighth Amendment case. Straightforward cruel and unusual. It was also overturned in two years. And it didn't involve substantive rights.

Furthermore, I think you've got a weird reading of Kansas v. Hendricks and what it takes to be competent to stand trial. Hendricks knew what he did was wrong and testified that he had uncontrollable pedophiliac urges. This seems like a pretty clear case of what civil confinement was designed to do. He was a serial molester who admitted he couldn't stop himself. Until he can, I don't see why he shouldn't be in a mental institution. These issues get much harder with less clear cases, but this one seems cut-and-dry. Being sane enough to stand trial is just a different standard than being alloewd to be reintegrated into society - which doesn't seem all that problematic.

Finally, while child molesters may be condemned by others in society, as between them and their victims, they are the oppressor and not the oppressed. If you think there should be laws to protect the wrongfully accused, feel free to advocate for them, but there's no question that sexual offender laws stand with the downtrodden within that power relationship.

kid ichorous - That's some extremely faulty reasoning. I mailed you a link and I can provide others, but I stand by the claim that you are extremely unlikely to find a peer-reviewed study supporting your point. At every step of the process there is documented evidence that black individuals are more likely to have charges filed, more likely to be found guilty, more likely to receive heavier sentences and less likely to be eligible for alternative sentencing or early release. Comparing the breakdown of registered offenders to the general population just doesn't get you anywhere. The correct comparison would be to the population against whom charges could conceivably be brought. Even that doesn't tell you enough, as it may be the case that charges are much more likely to be brough against white people caught with black individuals than with white individuals, as were the two people we're talking about in this thread.

Would knowing that less than 13.4% of insider trading convictions were of black men mean anything? Wouldn't it still be possible that a black man would be more likely of being accused of insider trading than a white man in the same position?
posted by allen.spaulding at 12:50 PM on November 25, 2008 [1 favorite]


desjardins Lawrence v. Texas was not decided on Equal Protection grounds, but on privacy/due process grounds. Had it been under the equal protection clause, I think that Whitaker would have a legitimate constitutional claim against these statutes under that ruling. Under the due process clause, she really has no shot.
posted by allen.spaulding at 12:52 PM on November 25, 2008


“if you maintain your innocence, for any reason, that can be used as justification to keep you institutionalized for life. You must confess in order to qualify to be released in at least some states.”

Plus, you could jeopardize your credit rating .

No, really. (Same info companies).
posted by Smedleyman at 12:59 PM on November 25, 2008


Law Talkin' Guy - Furman wasn't an equal protection clause case, but an Eighth Amendment case. Straightforward cruel and unusual. It was also overturned in two years. And it didn't involve substantive rights.

Even though the concurrences bring up race discrimination as the front-and-center reason why they agreed with the majority? Even though J. Stewart said that the death penalty was a violation of the Eighth Amendment to the extent it was arbitrarily (read: unequally) imposed? Even though legal scholarship and law schools teach the Furman case as an example of race discrimination being used to strike death penalty laws? Even though Furman's briefs relied in large part on empirical evidence of race bias in the administration of the death penalty?

Well, I suppose if you want to exalt form over substance to the point of distorting the basis of the decision, okay.

Furthermore, I think you've got a weird reading of Kansas v. Hendricks and what it takes to be competent to stand trial. Hendricks knew what he did was wrong and testified that he had uncontrollable pedophiliac urges. This seems like a pretty clear case of what civil confinement was designed to do. He was a serial molester who admitted he couldn't stop himself. Until he can, I don't see why he shouldn't be in a mental institution. These issues get much harder with less clear cases, but this one seems cut-and-dry. Being sane enough to stand trial is just a different standard than being alloewd to be reintegrated into society - which doesn't seem all that problematic.

You cleverly glossed over part of my post. Let me emphasize it for you. "Out of one side of their mouths, they say that a defendant charged with a sex crime is sane enough to stand trial and be criminally sentenced for his actions." If what you say is true, and a mental illness rendered Hendricks incapable of controlling his actions, then he should have been acquitted by reason of insanity and committed to a mental institution, not both. Robinson v. California makes those results mutually exclusive.

Finally, while child molesters may be condemned by others in society, as between them and their victims, they are the oppressor and not the oppressed. If you think there should be laws to protect the wrongfully accused, feel free to advocate for them, but there's no question that sexual offender laws stand with the downtrodden within that power relationship.

You're equivocating on relationship dynamics here. In the context of the offender and the victim, I suppose you could shoehorn the offense into this procrustean paradigm of "oppressor and oppressed" that you have. But the victim of the offense is not the one institutionally abusing criminal defendants and convicts. The state is doing that. The state was not the victim of the sex crime, and invoking the cause of "protecting victims" does not give the government carte blanche to brutalize the defendants and convicts in the name of some twisted notion of equalization and protecting the downtrodden.

But assuming it did, where would it end? Public lashing? Stockade? Castration? Tortute? Lyching? All these things "side with the victim" as well, or at least purport to.
posted by Law Talkin' Guy at 1:14 PM on November 25, 2008


On discovery, her attorney found out that McDonald's had intentionally increased the temperature of their coffee to about 40F hotter than what comes out of your coffee maker at home

What do home coffee makers have to do with commercial coffee? McDonald's stored their coffee at around 180degF, which is around the temperature specialist coffee houses still serve it. See here for example. Hotter than crappy home makers perhaps, but normal for decent coffee.

that hundreds of others had likewise filed claims with third-degree coffee burns, and that McDonald's had settled some of those cases for as much as half a mil.

Hundreds of cases out of 10 billion cups of coffee that McDonald's has sold. All cases that had previously settled were due to McDonald's employees spilling coffee on customers.

Again, I'm not singling you out but rather am speaking to what sometimes seems like everyone who has an opinion about that case, but if her claim still sounds pathetic to you, then you have a very different definition of the term "pathetic" than I do.

The case is pathetic, and similar complaints since have all been thrown out. This one has been very strongly defended online by the legal fraternity because it was used as a poster child to bring about tort reform, something they did not want. But for some reason people trust lawyer's groups over McDonalds. I'd argue neither are trustworthy.
posted by markr at 1:26 PM on November 25, 2008


And furthermore, just because someone can be construed as "oppressor" in one relationship doesn't mean they're prevented from being the "oppressed" in another, does it? If so, any member of a protected minority group who actually committed a crime would be taken out of the "oppressed" group you're so passionate about advocating for, since they're (or at least were) an "oppressor" in another context.
posted by Law Talkin' Guy at 1:27 PM on November 25, 2008


Law Talkin' Guy - I think you need to go back and study both Crim and ConLaw.

The standard for competency to stand trial is whether or not the person has a rational and factual understanding of the proceedings against him/her. The M'Naghten test for insanity is whether or not, at the time of the crime, the individual knew what he/she was doing was wrong. The MPC includes a prong which allows an insanity defense if at the time of the crime, the individual lacked the ability to conform his/her conduct to the requirements of the law. This does not mean that a kleptomaniac cannot be held accountable for theft, if he/she feels an urge to shoplift. There's lots of caselaw on this, but the Court has upheld the idea that there is a gap where individuals can be civilly confined because they cannot stop themselves from committing future crimes, but can be held criminally accountable for their actions. Personally, I think it's a terrible problem and I agree with you, but it's just not the law. Calling it unconstitutional is just factually wrong.

The EPC issue is serious and I think you're missing what Furman stands for and how it's taught. Yes, at times the concurrences address the issue, but even the majority didn't stand and it's hardly a strong example. I'm explicitly stating that 14th Amendment EPC jurisprudence has not successfully been extended to statutes which cover sexual behavior. Griswold, Roe, Bowers, Lawrence are all Due Process cases. I'm also saying that the EPC is barely reached in cases of substantive rights in the first place, so it's odd to claim that this is overused. And it's not a mere formality, the EPC jurisprudence, insofar that it exists, is significantly different than 8th amendment jurisprudence and would have a major impact on the constitutionality of programs like Georgia's. I just don't see how you could confuse the two, or claim that Furman is an example of the Court using the 14th Amendment Equal Protection Clause to secure a substantive equality right.

Finally, I just don't get your last point. If you believe, like I do, that the law should intervene in situations where those in positions of power abuse the powerless, then I don't really see where the problem is. If there is abuse of criminal defendants coming from those in society more powerful than they, deal with that separately. If your idea is that being prosecuted for a crime in-and-of-itself turns the oppressor into the oppressed then there is absolutely no room for legal intervention. And if you think a slippery slope applies, you're missing the point. We could shoot insider traders in the face. Guess we shouldn't punish them. As between the SEC and the trader, the trader is the outsider, not the insider. Free Pardon Michael Milken!
posted by allen.spaulding at 1:36 PM on November 25, 2008


Between this and the teacher being prosecuted for popup porn hijacking ...

Update today on that case...

Felony Charges Dropped Against Teacher in Porn/Spyware Case
"Connecticut officials may seek another trial after felony charges are dropped against a teacher accused of showing Internet porn to students in class, despite evidence the culprit was spyware."
Unbelievable that "New London County State's Attorney Michael Regan said he remained convinced of Amero's guilt and was prepared to take the case to trial again."
posted by ericb at 1:38 PM on November 25, 2008


With regards to the McDonald's thing - I'd say the temperature of home-brewed coffee has a lot to do with it, in so far as that's the temperature you come to expect from coffee. McDonald's was clearly hotter than this, and I don't see how it's possible to blithely dismiss 3rd degree burn-inducing temperatures as "normal for decent coffee". All this woman was asking for was her medical expenses covered for the injuries she incurred as a result of McDonald's product. They didn't respond in this manner, and she took them to court.

Why people get hysterical about this case is beyond me. Tort law is there in part to give people a way to recoup damages that might not fall under a criminal charge. As such, it's one of the msot effective tools a wronged consumer has. There are far better examples of abuse of tort law that could be used that don't involve reviling an old woman who suffered severe burns and "attacked" a poor, innocent multinational corporation.
posted by Marisa Stole the Precious Thing at 1:49 PM on November 25, 2008 [1 favorite]


What do home coffee makers have to do with commercial coffee? McDonald's stored their coffee at around 180degF, which is around the temperature specialist coffee houses still serve it. See here for example. Hotter than crappy home makers perhaps, but normal for decent coffee.


Brewing and storing are not the same. Espresso machines brew at around 200 degrees, but no one would serve it at that temperature because you'd have to have a scalding espresso cup to do so, and because flavors are not as discernible in coffee at temperatures that high (however, this is a tactic used by brewers of shitty coffee, because too hot coffee= no one can taste just how crap it is). The best coffee houses understand that keeping coffee at high temperatures means not only that no one can taste it, but that the coffee degrades that much faster as well (hence the trend of specialty coffee makers to brew individual cups as they are ordered). The mean temperatures that people choose to drink coffee are from 140-160 degrees fahrenheit. Burn hazards exist at temps above 140.
posted by oneirodynia at 2:13 PM on November 25, 2008 [1 favorite]


With regards to the McDonald's thing - I'd say the temperature of home-brewed coffee has a lot to do with it, in so far as that's the temperature you come to expect from coffee. McDonald's was clearly hotter than this

So you have guests over, you throw the kettle on and boil water to 212degF, then pour it into a cup with some instant coffee. The water will drop in temperature a little, but not below the 180degF McDonalds served their coffee at. That is home-brewed coffee, and it is hotter than McDonalds coffee, and yet apparently it would be illegal to serve that to your guests. Warning them that it is hot wouldn't be sufficient (the cup in the McDonalds case carried the usual disclaimer).

Brewing and storing are not the same.

Noted. So now we can't serve fresh coffee? Espresso machines brew at well below 200 because the small volume of water compared to the large coffee puck causes the temperature to drop significantly. So the water enters the pick at 200, but is far below it by the time it hits the cup. But if I make normal filtered coffee in a decent coffee house it will be around the 180degF maek, and you're arguing that I can't then serve it fresh. I need to let it stew on the heater until it cools, rather than serving it and allowing the customer to decide.
posted by markr at 2:31 PM on November 25, 2008


That is home-brewed coffee, and it is hotter than McDonalds coffee, and yet apparently it would be illegal to serve that to your guests.

Illegal? No, it wouldn't be illegal. There is no law against hot coffee; let's not confuse civil and criminal matters. The crux of this case has more to do with a product causing injury than anything else - the consumer sought equivalent compensation for the injuries she sustained using this product. She didn't feel she got enough compensation, and so they went to court. What is the big deal? Why is this old woman demonized as the poster child for tort abuse, as opposed to corporations like the RIAA who sue people for file sharing?
posted by Marisa Stole the Precious Thing at 3:02 PM on November 25, 2008


Nine years ago, a high-school girl gave her classmate a blowjob. Now, we're fighting on the Internet about the usual temperature of coffee.

How's that for unintended consequences?
posted by oaf at 3:15 PM on November 25, 2008 [3 favorites]


Jayder: ...these anecdotes about peeing in public putting you on the registry don't sound plausible.

Despite the rest of what Jayder said, I can sympathize with this. Sometimes injustice is so startling horrid that I honestly can't believe it's real. My shocker for the week: here in Vancouver the paper tells me that 23% of the First Nations population is homeless, with another 41% at risk of homelessness. I...uh...what? Really? Well, maybe I'll have processed that by sometime next week. I don't think of this as a racist city, quite the opposite, but here we are, and there it is.

Speaking of sex and the law, I'm actually kind of afraid to find out more than I already know about what it's like to be a prostitute in this city. Other than criminalization itself, the letter of the law is not the problem; it's that selective enforcement by police and malign neglect from social services destroys people. Here's what a few minutes googling got me, something "sadly not uncommon among trans refugees."

"If you get stuck with a transphobic social worker who doesn't care, you're stuck...language also plays a huge role. It's a huge problem with practitioners like doctors. You have to bring a translator, which is hugely expensive. You start using street hormones, sharing needles, you're at higher risk for HIV...many trans women refugees turn to sex work, where they can make money under the table, especially if they've given up on their refugee claim or have been refused and are facing deportation."

That's Canada, apparently. I could have gone my whole life without knowing that. People fall through the cracks every day, and there are thousands of cracks. It's easier to leave the bad laws on the books, let the cops turn a blind eye and keep my own eyes shut than it would be to do anything about it.

It's easy to poke fun at the folks in Georgia, and yes, injustice there is objectively much worse than it is here or where you live (especially for women, gay people, minorities, prisoners, and people who have sex outside the missionary position), but if you kick a rock in your hometown you may not be prepared for what you find. I'm not.

----------

By way of taking a deep breath after that,

Astro Zombie on the 15-17 "sex offender": "This is insanity Georgia America Sparta!
Actually, no. In Sparta, pedophilia was mandatory.
posted by justsomebodythatyouusedtoknow at 3:26 PM on November 25, 2008 [2 favorites]


What is the big deal? Why is this old woman demonized as the poster child for tort abuse, as opposed to corporations like the RIAA who sue people for file sharing?

Who is demonising her? She has every right to bring a civil suit. The question is whether the finding in her case was correct or not. I believe it was wrong, despite the current swell of support for the decision and the campaign from lawyers groups in support of it. The "McDonalds served coffee 40 degrees hotter than normal" thing is always brought up when this case is mentioned, I was just pointing out that this isn't necessarily the case, and indeed anyone who makes instant coffee or who brews a cup of black tea is serving a far hotter drink.
posted by markr at 4:17 PM on November 25, 2008


I will admit that I did use it to vet men I met online, and I stopped talking to ones who had anything beyond speeding tickets on their records.
posted by desjardins at 12:56 PM on November 25 [+] [!]


CCAP can be bad. There is a guy on CCAP with the same first and last name as me (we are most likely distant cousins and our last name is not at all common). If you don't check (or know) the birth dates you may very well confuse him with me. He has a number of civil judgments against him and numerous misdemeanor arrests. This has already caused me issues during traffic stops and who knows who else has looked my name up and seen all of his legal issues and ascribed them to me. Confession: I did look up a bunch of coworkers on CCAP several years back. One person had several convictions for prostitution, It took a lot of willpower not to gossip about that I must say.
posted by MikeMc at 5:12 PM on November 25, 2008 [1 favorite]


What do home coffee makers have to do with commercial coffee?

Decent point, but McDonald's had previously run a study showing that they were serving their coffee at a minimum of 20F (and, IIRC, an average of closer to 40) over the competition. However, I don't care to quibble about numbers, as that wasn't my point.

Hundreds of cases out of 10 billion cups of coffee that McDonald's has sold.

Yes, but 700 cases over a decade. That's 70 people a year getting third-degree burns from their coffee. And they decided to do...nothing. But we're still not to my point.

All cases that had previously settled were due to McDonald's employees spilling coffee on customers.

All 700 cases? You sure of that? But hey, not my point.

The case is pathetic, and similar complaints since have all been thrown out.

Here we're getting closer to the point. Debating acceptable coffee serving temperatures and previous settlements, as you yourself have just done, is in and of itself an indication that the case is in fact not so pathetic and self-evidently wrong as to never see the inside of a courtroom. In fact, they sound like exactly the sort of the kind of thing that the civil courts were created to decide.

And incidentally, how many of "all" of these cases saw the plaintiff's life put directly at risk, or subjected to years of hospitalizations and painful medical treatments? And again, you're sure that "all" of them were thrown out? Based on what?
posted by middleclasstool at 5:26 PM on November 25, 2008 [5 favorites]


allen.spaulding: kid ichorous: That's some extremely faulty reasoning. I mailed you a link

Thank you for citing with the Boerner and Lieb study. Two criticisms did stand out to me: first, it's worth pointing out that the data they're working from is a single report on Washington state sentencing that's two decades old. And, second, if the near alignment of criminal populations and census data does not exclude all claims of discrimination, neither can we say that disparities automatically substantiate them.

I do take your point on the comparison of offender demographics with census data, but I'm just looking to place an upper bound on the idea that cases of race-driven misconduct are the central concern here. Are there cases of institutionalized bias at work out there? Certainly. However, it would be unlikely for racial variations in sex crime rates to so perfectly negate the effects of institutionalized bias so as to make the net effect nearly invisible. It would be increasingly unlikely for these values to be large and still be approximately equal.

Should we only care about sex crime laws inasmuch as they intersect with identity politics? This case is a perfectly-conceived aberration on which to build an argument for the affirmative - a woman convict in place of a man, an inter-racial couple (most sexual assaults are intra-racial), a teenaged lapse of judgment in place of a violent rape. But this case is also a wild outlier, and, as I've said, I'm concerned by what I perceive as a common tendency to cast any contemporary problem into simplistic, canonized, fifty-year-old models of race, power, and oppression. If we're really going to have a conversation about why our treatment of convicts and prisoners is inhumane, we need a much more sophisticated acid test for injustice than: is this race- and gender- neutral? Are any non-Whites or women victimized?
posted by kid ichorous at 6:13 PM on November 25, 2008


We have nothing to fear, but fear itself, and boy do we have fear. The kid who mooned the lesbian parade, the drunk who fondled his classmate's breast during the class picture, the drunk frat boy who pressured his date into sex, they are all assholes, but they are not likely a danger to your child. Cases like this woman and the grandma busted for taking pictures of her five year old grandkids jumping naked on the bed illustrate the extreme looneyness of these laws but the everyday crap is even worse if only for the volume. How did sex get to be so scary?
posted by caddis at 7:31 PM on November 25, 2008


Law Talkin' Guy - I think you need to go back and study both Crim and ConLaw.

Actually, I aced the former and taught the latter. But continue with the Ad Hominems, they really make your positions seem well-reasoned.

The standard for competency to stand trial is whether or not the person has a rational and factual understanding of the proceedings against him/her. The M'Naughten rule . . . .

How very tricky, limiting yourself to the M'Naughten rule. I'm sure a criminal law scholar like you knows that M'Naughten is not the only standard for insanity. Inability to conform one's behavior to the strictures of the law at least arguably supports an insanity defense under Irresistible Impulse, the ALI model penal code, and the Durham Rule. Any state using one of those standards who convicts someone of a criminal offense for sex crimes should be barred by judicial estoppel from later turning around and taking an inconsistent position on the offender's mental health and/or ability to conform their behavior to the law.

With respect to stricter constitutionality issues, I have problems reconciling criminal prosecution + civil commitment with double jeopardy principles. SDP commitment is reconciled with double jeopardy by calling it "treatment" versus punishment, but SDP statutes strike me as an attempted end-run around sentencing limitations disguised as "treatment" to avoid double jeopardy problems.

Furthermore, the procedure in at least some SDP proceedings offends procedural rights secured by the constitution. Out of court statements, though ordinarily barred not just by the common law hearsay exclusion but also the 6th Amendment, are allowed in SDP proceedings because they're "civil" in nature. So you stand to lose your liberty indefinitely, and your reputation permanently, with access to fewer procedural protections than a criminal defendant. How far we've come from Sir Walter Raleigh's case.

I'm explicitly stating that 14th Amendment EPC jurisprudence has not successfully been extended to statutes which cover sexual behavior.

You asked if any issues related to substantive rights were decided on equal protection grounds. I provided an example of a substantive right being construed in light of allegations of discrimination and inequality. You argued (correctly) that the 14th Amendment was not explicitly invoked in the majority opinion as the basis for the decision, but I responded that attention to he principles underlying equal protection lay at the root of Furman.

You're now retreating to the Griswold line of cases (which is in reality the Griswold penumbra cases and the Roe resurrection of Lochnerism, but that's neither here nor there). However, I never claimed rights from the Griswold cases originated from the 14th Amendment. You merely asked a broad question about substantive rights and I provided an answer.

Finally, I just don't get your last point . . . ."

Tu quoque. I'm not sure where your line of thinking started, or how it arrived at its destination, but I'll try to clarify. I consider sequential criminal prosecution and civil commitment of sex offenders to be a gross abuse of state power. I believe that sex offender registries are often little more than rubber stamps to legitimize summarily stripping people convicted of sex offenses of further liberties after their prison terms are over. I contend that depriving sex offenders of procedural protections like cross-examination of all adverse witnesses is an abhorrent encroachment on procedural rights secured by the Constitution.

These abuses transform the relationship between the state and the sex offender into "oppressor and oppressed." That's not because any criminal sanction translates to oppression, but because the unique and at times extreme punishments visited on sex offenders are inconsistent with their rights. In juxtaposition with the bitter and sometimes violent hatred heaped on sex offenders by the public at large, the group "sex offense defendants and/or convicts" seems every bit as entitled to the mantle of "oppressed" as any other group in contemporary America that I can think of.

Since that is so, and applying your thesis that the law's task to safeguard the "oppressed," the law governing sex offenders should not be, as it is now, designed to maximize convictions and punishment, but instead to scrupulously protect the rights of the accused and the convicted. As the OP amply demonstrates, that is not what's being done. That failure affects the population of sex offenders at large, and is not limited to the archetypical victims in 1960's identity politics, racial minorities and women. All sex offenders are subjected to the same appalling treatment.
posted by Law Talkin' Guy at 9:09 PM on November 25, 2008 [5 favorites]


"Nine years ago, a hihh-school girl gave her classmate a blowjob. Now, we're fighting on the Internet about the usual temperature of coffee.
How's that for unintended consequences?"

I'm just sayin' GTA SA was ahead of it's time is all.
posted by Smedleyman at 9:46 PM on November 25, 2008


Oh, and to point to two other constitutional issues--

Forcing you to admit guilt for the underlying offense while institutionalized as an SDP is compelled speech in violation of the First Amendment, if not by generous extension the Fifth Amendment, as well. If you can't be compelled to put live free or die on your license plate, you sure as hell shouldn't be forced to say you committed a crime in order to qualify for release from confinement. As noted above, that smacks of Stalinist Russia, Toul Sleng, and the oppressive regime in America regarding law enforcement against blacks in the 1950's.

And on my earlier point re: judicial estoppel, I'm not abandoning my argument under Robinson v. California and the 8th Amendment though it may have seemed that way from my earlier post. Judicial estoppel is one convenient avenue to attack state arguments that say one thing about a sex offender's mental health and ability to conform their behavior to the law during a criminal trial, then say the opposite at a subsequent SDP commitment proceeding. Another remains the 8th Amendment, to the extent that SDP confinement is just additional punishment masquerading as "treatment." If it really was about treatment of mental illness, existing civil commitment statutes would suffice, instead of this new special standard reserved just for SDP patients.

If the state wants to take the converse tack and say that the moving force behind the sex offense was mental illness and not criminality, then the state is punishing the mentally ill in contravention of Robinson v. California.
posted by Law Talkin' Guy at 5:11 AM on November 26, 2008


I haven't thought about the compelled speech angle. I've never studied the issue in the criminal context. I can't really imagine it working, as you can be compelled to say a lot of things by the government in the course of a trial (excepting, of course, testifying against yourself). I think you've got the license plate issue backwards. There's no real compelling state interest in that situation. I'm pretty sure people are required to accept guilt as a condition of early release and that it hasn't been problematic. I'd need to look into it.

As for Robinson v. California, I just think that's a dead end. It's almost always a hail mary in these situations, it basically never works, and on top of it, Powell v. Texas would control. Sex offenders are not convicted for being pedophiles, but for their behavior. Civil commitment isn't covered by Robinson -- of course you can be committed for a mental condition. Otherwise, anyone who was judged unfit to stand for trial would have to be released, or else they'd be committed on the basis of something beyond their control, no?

I think there are amazing flaws in all of the things discussed here, from the statutes at hand, the role of elected judicial officials, and the civil committment practices. But the idea that there can be a successful 8A challenge to them seems unlikely to me. These issues have to be fixed in legislatures, the Constitution isn't going to do the job for us. We don't need more lawyers, we need more organizers to get people to take these issues seriously and change the laws. The Constitution will continue to let Georgia get away with an awful lot.

And not to get back into the earlier stuff, but again, Furman isn't a substantive right, nor is it an EPC case. The EPC is the only thing that would present a reasonable challenge to these laws, but the Court has almost never used it and has sharply limited the ability to bring such challenges. I talked about the MPC standard, which codified the ALI. You might not like how the law has been interpreted, but the Court has been pretty clear on it. The 6th Amendment is a nonstarter as well. Once again, it's time to stop thinking of the Constitution as this wonderful document that's going to solve all these social problems. Garrison was right: It's a covenant with the devil in many more ways than one. Unless you're extraordinarily clever these days, you're not going to get any substantive rights shaken from it.
posted by allen.spaulding at 9:18 AM on November 26, 2008


We're increasingly comparing apples and oranges here. Under the constitutional jurisprudence of the last 2 Courts, you're right. It'd be a hard sell to invoke Crawford, Robinson, double jeopardy, or the 8th A. to challenge SDP statutes. In fact, I'd feel confident in saying that all those challenges have already played out and were resolved in favor of the SDP laws.

My problem with that outcome, and my original point, was that SCOTUS just plain got it wrong. Yeah, I know, easy to say from my armchair away from One First Street. Nevertheless, I'm firmly convinced that our current sex offender laws fly in the face of the purpose of the rights secured by those constitutional provisions. Re: Crawford, an SDP respondent, facing the possibility of life in confinement or if he gets out, the near certainty of a life of total ostracism, has fewer procedural protections than a criminal defendant facing a $100 fine for petty larceny. Even Lord Coke's Third Institute identified the problems inherent in subjecting someone to that kind of legal peril with unreliable evidence made more difficult to assail.

Re: Robinson and double jeopardy, we really need to stop kidding ourselves that SDP confinement is in any way meant to be "treatment." These laws were not enacted because of legislative efforts to rehabilitate sex offenders and make them better. They were pushed through to appease righteously indignant constituencies who pushed bad information about sex offender recidivism on anyone who would listen, and complained that criminal sentences didn't keep "those people" locked up long enough.

If you accept this illusory distinction between punishment and treatment in the context of sex offenses, what is to stop the government from expanding it to the context of other crimes? You mentioned kleptomania earlier-- how comfortable would you feel if the government all of a sudden claimed the power to criminally sentence, and then indefinitely confine, pickpockets and cat burglars, claiming the mental illness of kleptomania drove their offenses made then likely to recidivate? And what would your response be if people who got into bar fights faced criminal sentences for battery and then indefinite commitment for antisocial personality disorder afterwards?

Re: The 8th A., we can argue about what Furman stands for and on what grounds it rests, but I think we'll at least agree that it supports the proposition that arbitrary punishment is not accepted under the 8th A. I'd argue that SDP confinement is exactly that. SCOTUS acknowledged, in its own published majority opinion in Barefoot v. Estelle, that psychologists are wrong in predicting future behavior 2 out of 3 times. To confine someone based on an assessment of their future behavior that is wrong more often than not arbitrary punishment by the very definition of the word "arbitrary."

I know the courts came out differently, but using "treatment" this way seems to tug at the very threads that hold the fabric of protections for criminal defendants together. In the end, your assessment of a constitutional challenge to these laws as unlikely to succeed is probably correct, but that doesn't mean that I am obligated to alter my own opinion of these laws as constitutionally impermissible. Although, just as an aside, I do plan on taking a pro bono SDP appeal someday and pressing the 1st A. compelled speech issue. Even assuming a compelling state interest in forcing people to recite their crimes a la Stalinist show trials (and I'd dispute even that much), there's no way the government is going to be able to show that forcing people to say they committed a crime is the least restrictive alternative to accomplish whatever purpose it's trying to invoke.

To respond to one of your specific points:

Civil commitment isn't covered by Robinson -- of course you can be committed for a mental condition. Otherwise, anyone who was judged unfit to stand for trial would have to be released, or else they'd be committed on the basis of something beyond their control, no?

Yes, you can be committed on the basis of a mental condition. But if the state is going to say that that mental condition drives your criminal behavior to the point where you're unable to control yourself, that should foreclose criminal prosecution. Robinson said we don't punish people for conditions under the 8th A; if it's a condition that drives sex offenses to such a degree that commitment is warranted, then criminal punishment is unacceptable under Robinson. Treat or punish, not both in sequence.

And that's not even getting into judicial estoppel, though I acknowledge JE isn't adopted everywhere (though it seems more popular on the state level, where most of these issues play out), and isn't constitutionally-derived in any event.

Finally, my greater message and main point in responding to the suggestions that these laws are defensible because they protect the "oppressed," was that by almost any objective metric, sex offense defendants/convicts are the oppressed. They're singled out for deprivation of rights on a scale I haven't seen anywhere else in contemporary American law. Sex offenders as a group are subjected to punishments so unique and extreme that they're named after them, i.e. "sexually dangerous persons." They have less of a chance at reintegration into society after conviction than any other group I know. They're falsely convicted at a higher rate than any other class of criminal defendant. And all the while, more public contempt and scorn is heaped upon them than any other class of persons, even Scientologist furries.

To anyone who suggests these laws are okay because they meet the law's obligation to protect the downtrodden by safeguarding victims of sex crimes, I respond that the contrapositive is true. These laws are not okay because they don't protect the truly downtrodden.
posted by Law Talkin' Guy at 10:32 AM on November 26, 2008


I meant inverse, not contrapositive. Ah, Logic 101, it's been a long time...
posted by Law Talkin' Guy at 11:05 AM on November 26, 2008


Stuff like this has always pissed me off to a much greater magnitude than anything else. When will the legal system come to its senses and have people employing some discretion and logic in these matters?
posted by tehloki at 1:34 AM on November 28, 2008 [1 favorite]


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