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Chronic sexual predators have crossed an osmotic membrane. They can't step back to the other side -our side. And they don't want to. If we don't kill them or release them, we have but one choice. Call them monsters and isolate them. ...
I've spoken to many predators over the years. They always exhibit amazement that we do not hunt them. And that when we capture them, we eventually let them go. Our attitude is a deliberate interference with Darwinism-an endangerment of our species.
Distrust all in whom the impulse to punish is strong.
After the late 1980s, child molesters were viewed as being extremely persistent in their deviant careers, having sexual contact with very large numbers of children over many years. They were virtually unstoppable, either by repeated incarceration or by prolonged programs of treatment or therapy, because their acts arose not from any temporary or reversible weakness of character but from a deep-rooted sickness or moral taint. And now, many believed, sex offenders were mobilizing the latest technology in their remorseless quest for victims, so that cyberspace had become a potential hunting ground quite as perilous as the lonely park or field. Concerns that pedophiles were using the medium of the Internet to seduce children and to distribute obscene materials led to the creation of a whole lexicon -- cyberporn, cyberstalkers, and so on. This eruption of fear, which led to new federal legislation in 1995-96 is notable testimony to the protean quality
of the child abuse idea and its ability to adapt to changing political and technological environments. Today's sex crime panic is as fierce as that of the late 1940s, and it has given the predator a role in the national demonology that is quite as pronounced as that of his psychopathic predecessor. We have truly come full circle.
During the 1980s, legislatures and criminal-justice agencies began treating sexual offenses as a far higher priority than they had before, and changes in courtroom procedures made it easier to gain convictions. Not surprisingly, therefore, the number of offenders prosecuted rose substantially.
There were about 58,000 sex offenders in the nation's prisons in 1988; by 1990 that number had increased to 85,000, a 47 percent increase in just three years, and sex offenders (however defined) composed one-sixth of all inmates in federal and state institutions.
Among the highest proportions nationwide were the states of Washington (30 percent) and Colorado (27 percent). By 1993, California had 16,000 imprisoned for sexual offenses, Texas, 10,000. At mid-decade, correctional authorities were supervising 234,000 sex offenders, 60 percent of whom were on parole or probation.
Although the upsurge in the numbers of known and convicted offenders resulted largely from the reorientation in law-enforcement priorities, it lent credence to claims that the sexual abuse of children was an epidemic out of control. [*1]
Studies now emphasized the role of the repeat offender, the career sex criminal. The recidivism figures were troubling enough, but interviews with incarcerated molesters suggested that the arrest records were telling only a very small part of the story. In extreme cases, convicted pedophiles were reporting careers in which they had abused several hundred children, mostly without legal consequences.
The validity of such confessions was open to debate, as imprisoned offenders of any sort are notorious for their tendency to recount the histories that they know their counselors and therapists expect to hear, but, even so, it no longer seemed reasonable to repeat the view that molestation was a one-time offense.
The new perceptions were reflected in the language used by both expert and popular opinion, in which the term pedophile described virtually anyone who had been sexually involved with a minor and contained ever more sinister connotations of obsession and violence. The more an act of molestation was a symptom of an inherent personality disorder, the less amenable was the
offender either to deterrence or to reform. These meanings were especially attached to the term serial pedophile or serial molester; which became common in the late 1980s under the influence of the well-known phrase serial killer. [*2]
The term is technically accurate in that a person who commits the same sort of crime repeatedly does indeed engage in a series of offenses, but in practice serial implies compulsivity and extreme dangerousness.
In the 1980s, Washington State became a pioneer in evolving legal devices for combating sex criminals, especially in King County, Seattle, where specialized units attracted both praise and criticism for their vigorously proactive pursuit of child abuse cases.
The institutionalization of the child-protection movement provided a context for the furious public response to a gruesome series of crimes, a reaction that culminated in the sexual predator statute passed there in 1990.
The most sensational case concerned Earl K. Shriner, who in May 1989 assaulted a seven-year-old boy, mutilating his genitals and leaving him for dead. Shriner had been assembling a spectacular criminal record since the mid-1960s, when he was hospitalized after allegedly killing a male classmate; afterward he received sentences for molestation in 1977, 1987, and 1988. In prison, Shriner had designed a van that he reportedly proposed to use for abducting, torturing, and killing children, and corrections officials knew this. Nevertheless, he was released. The question was why an offender was released into the community when so much evidence showed that he was both able and eager to do further harm. [*3]
Washington's legislature was under overwhelming public pressure to do something about sex offenders, to increase penalties and intensify incarceration and supervision of criminals for whom treatment was futile. A legislative panel now proposed the long-term incarceration of serious sex offenders, who would be punished as much for their predicted future dangerousness as for the specific act that brought them into contact with the criminal-justice system, and a law passed in 1990 provided for community notification and prolonged, even indeterminate incarceration.
Dangerous sex offenders were required to register with police when they moved into neighborhoods so that neighbors, including schools, day care centers, and women's refuges, could be duly warned. The law's second component allowed for special detention: after a sex offender served his
sentence for a given criminal act, the state was empowered to detain him past his release date pending a hearing on civil commitment, when a finding of future dangerousness could lead to indefinite confinement in a high-security special commitment center. [*4]
Following the precedent of the sexual psychopath legislation, the new measure combined civil and criminal procedures in a law that reflected the best of both worlds, or at least the elements most advantageous for prosecutors. Used alone, civil commitment offers the possibility of indefinite incarceration, but it is risky, for psychiatric institutions sometimes release individuals far earlier than would have been the case had they been serving criminal sentences, In the 1980s.
jurisdictions passed laws permitting lengthy confinement for sexual predators,
and in 1986 the Supreme Court approved an Illinois measure that allowed
prosecutors to choose whether they wished to proceed civilly or criminally
against a given defendant.
Washington built upon this principle with a law that offered a de facto criminal sanction, but one justified in terms of a civil medical matter. Nevertheless, the net effect was summarized in a New York Times headline: in Washington, "Strategy on Sex Crimes Is Prison, Then Prison." [*5]
Critics suggested that the law was not only harsh but also unconstitutionally retroactive. It was applied to offenders who were released after the act came into effect but who had been convicted before its passage: in other words, a man convicted of an act in 1985 would be indefinitely detained under provisions that did not exist at the time he committed his offense. It also had elements of double jeopardy, in that diagnosis as a dangerous predator was proved before a court using evidence from the person's past offenses
This might involve, for example, hearing testimony from women who had been raped by a man who had already been tried and convicted for these criminal offenses. In theory, the witnesses had come back to court for the completely different purpose of assessing the defendant's future dangerousness, but it looked very much as if earlier acts were being retried.
Despite some observers' doubts about its constitutionality, the Washington law attracted interest from other jurisdictions and was cited when other states or cities experienced a sensational crime involving asexual predator. [*6]
By 1995, similar statutes had been passed in Arizona, California, Kansas, Minnesota, and Wisconsin, and forty other states were considering comparable measures, assuming legal difficulties were resolved.
The diffusion of predator laws was assisted by other notorious crimes during the next two or three years and most spectacularly by another case
from Washington, where between 1991 and 1993 Westley Alan Dodd was at the height of his national notoriety. Determined to be executed, Dodd consistently presented himself in the worst imaginable light, boasting of the ruthless quality of his crimes and warning that the justice system could never control him should he be released. In his televised interviews he seemed both articulate and utterly cold-blooded, the epitome of the merciless and unapologetic predator of small children. Dodd also kept a diary in which he elaborated his grotesque fantasies about the sexual and surgical atrocities that he planned to commit against future victims; the diary was excerpted in television news coverage and was made available in its entirety on the Internet.
Like Earl Shriner, Dodd had experienced repeated encounters with police, courts, and psychiatrists, most of whom failed to detect his lethal potential; thus far he had suffered nothing worse than brief terms in prisons or psychiatric institutions.
The Dodd case received national attention from its earliest days. The New York Times used the story as the basis for a front-page report; in May 1991, CBS's 48 Hours included harrowing interviews with Dodd and extracts from his "diary of death"; and the following year, PBS's Frontline focused on Dodd in a program about sexually violent offenders and entitled "Monsters Among Us." Dodd was interviewed once more in a CNN segment broadcast shortly before his execution in January 1993, and true crime studies duly followed. By the time of his death, it would have scarcely been an overstatement to say that Dodd was widely regarded as evil personified, the ultimate human predator. [*7]
Although the word predators became central to the legislative debate in the mid-1990s, it had no legal meaning and had acquired its sexual connotations only very recently
(although it does recall terms used by J. Edgar Hoover many years before).
It is of course a metaphor: a predatory animal is one that survives by hunting and eating other animals, and only by analogy is its activity comparable to human being's pursuit and sexual exploitation of another person.
Before the 1990s, the word predator had appeared frequently in the news, but it was generally found in stories about financial activities: a corporation that was aggressively seeking to take over another, a common scenario in the merger boom of the mid-1980s, was often referred to as a predator. Only in about 1990 does the term acquire a sexual or violent sense, and even then it was sufficiently unusual to merit quotation marks and some additional explanation. [*8]
Before 1990, the word in its sexual sense was usually found in the literature
of crime fiction and true crime, where it appeared extensively in book titles and blurbs, alongside phrases implying primitivism, animal savagery, and hunting. Predatory monsters must be "hunted down," and investigators are "mind-hunters."
Descriptions of real-life compulsive sex offenders as predators can be traced to the work of crime writers Andrew Vachss and Jack Olsen.
Vachss regularly used the word in this sense from about 1990 in his novels and newspaper columns, often in the context of his socio-biological theories: for example, in passages that would have made excellent sense to eugenic theorists a century ago, he suggests that we endanger our survival as a species if we ignore the supposed "biological imperative" to protect children from sex criminals. In 1990, he published an article with the cautionary title "Today's Abused Child Could Be Tomorrow's Predator," a pioneering example of the use of the word predator as synonymous with serial molester.
Olsen's 1991 book Predator was a case study of a serial rapist active in Washington State, and presumably the book's local appeal made it familiar to legislators and media people in that region.
Although the modern concept of "sexual predators" had originated in the figurative language of sensationalistic crime writers, it was increasingly associated with the crimes of sexual violence and stalking
(another instance of a hunting metaphor that entered the legislative code in these years).
The predator concept received national currency from the extensive reporting of the Washington statute, which in November 1991 was explored in a special episode of 48 Hours entitled "Predators," and thereafter it entered popular usage.
In 1991, a "predator" was sentenced for beating and raping several Colorado women.
The year 1993 brought the cases of a Tennessee judge who had become a predator through his sexual attacks on women, and
a California school was assailed by a predatory molester. In 1996, we began hearing about a "cyberspace predator." [*9]
By then the term had become a fixture of news headlines, with 1994 producing more references to sexual predators than had the previous eight years combined. Whereas the term sexual predator never appeared in major newspapers in either 1985 or 1986, that was soon to change. Although it cropped up only a handful of times each year in 1987-89, it appeared
an average of 140 times each year in 1990-92.
In 1993 the term was used 321 times, and then the frequency skyrocketed:
in 1994 there were 865 references to sexual predators,
in 1995, 924 references.
Prominent press accounts of dangerous molesters and predators often ran in close proximity to other stories about the false charges levied in cases
of ritual abuse or recovered memory: one type of threat progressively gained in media acceptability as the other declined.
In 1992, the media described the case of Eddie Savitz, who lured hundreds of boys to his Philadelphia apartment, an affair made even worse by the fact that "Uncle Eddie" had AIDS. In reality, the fetishistic acts that Savitz enjoyed carried no risk that the disease would be transmitted, but the presence of AIDS greatly enhanced the potential damage of abuse.
In another highly visible case, David Lee Thompson confessed to molesting numerous small girls in at least five states in the early 1990s, and although his acts did not involve violence, his fantasy scenarios involved child murder.
In contrast, the Lewis Lent case of early 1994 did entail the authentic abduction and murder of children in New England and New York. The depth of public feeling over sex offenders was shown when Californian Ellie Nesler became a popular heroine after she killed the man accused of molesting her young son. Initially depicted in terms of a mother seeking justice against a vicious abuser coddled by the law, the story was reported by all major television news programs and talk shows and inspired bumper stickers celebrating , "L. E. Law," that is, "Ellie Law." [*10]
The years 1992 and 1993 witnessed the height
of public concern about sexual abuse by clergy, some instances of which involved
genuine serial pedophiles, like Massachusetts priest James Porter. In
reality, though, the vast majority of compromised clergy were involved with
adolescents rather than small children, and the popularity of the phrase pedophile priests is powerful testimony to how far the word
pedophile had come in representing a generic term for any adult sexually
active with minors. In actuality, let it be said once more, pedophilia
only to sexual misconduct with prepubescent children.
The child abuse theme had been entrenched in popular culture since the late 1970s, but now depictions tended to focus more sharply on the lone predator, commonly a pedophile, who was painted in the darkest possible terms. One early example was seen in the 1989 television movie I Know My First Name Is Steven, which was based on the true story of a young boy who had been abducted and retained for several years in the 1970s; Bump in the Night (1991) was the tale of a boy kidnapped by a pornographer.
For the first time in the genre, serial molesters and pedophiles now became the subject of several true-crime books, while cases dating back a decade or more were revived to accommodate the new public mood.
In 1991, the Gacy murder case of the late 1970s became the theme of the TV movie To Catch a Killer. Extreme cases of clergy sexual abuse were treated in the
television movies Judgment (1990) and The Boys of St. Vincent (1994) as well as magazine articles and television documentaries. Predatory imagery found stark expression in the sadistic villain of the 1991 film Cape Fear, a "psychopath" who had been jailed for raping a young girl. [*11]
Through these years, news and documentary programs reported on predators with all the zeal that they had earlier addressed to exposing incest and child abuse in preschools.
On the show 48 Hours, the single year of 1991 included lengthy items on
Westley Dodd ("Serial Killer," May),
rape and rapists ("Crime in the Dark," September), and
Washington's sex offender legislation ("Predators," November).
The story of Lewis Lent was covered in an episode bearing the frightening title "Child Hunter."
The stress on pedophiles gave vigorous new life to the fear of child abduction, and in 1994, the New York legislature required that all public schools in the state provide kindergarteners through eighth graders with lessons imparting
"awareness skills, information, self-confidence and support to aid in the prevention of child abduction."
Child abuse prevention programs, which in the 1980s had stressed that any adult could be involved in offering "bad touches," now reemphasized the role of strangers, giving lessons in escaping and evading abductors. [*12]
In 1993, a shocking criminal case uniquely dramatized the peril from itinerant sex criminals. The Polly Klaas story began in October 1993, when the twelve-year-old girl was having a slumber party with friends at her house in Petaluma, California. A man broke in and abducted Polly at knifepoint; after a massive search her body was found, and it became apparent that she had been murdered shortly after her disappearance.
Random violence had intruded into apparently safe surroundings-into a household setting with which any middle-class family could identify -- and in fact Petaluma had represented the archetypal American community in films like American Graffiti. "An angel named Polly" was in no way to blame for her tragic end, and "the murder of America's child" was widely covered in television and newspapers, with several lengthy articles in the best-selling People Weekly as well as pieces in Time, Newsweek, McCall's, and Redbook.
The perpetrator was Richard Allen Davis, a criminal who had a lengthy record dating back to his teens and who had been imprisoned for fourteen of the previous twenty years. Despite his multiple convictions for offenses like kidnapping, sexual assault, burglary, and weapons offenses, he was "the man who kept going free"
In January 1994, ABC's Primetime Live enumerated the many occasions on which Davis could have been sentenced to prolonged imprisonment, a story of "how the system failed society -- and a little girl named Polly Klaas." [*13]
Juxtaposed images of the savage killer and the innocent victim made a potent combination. A campaign for severity against repeat offenders found a figure head in Polly's father, Marc Klaas, who regularly appeared in the media throughout 1994, arguing that children were "crying for protection."
The Polly Klaas Foundation was organized to assist in searches for missing children and lobbied for California's Polly Klaas Memorial Habitual Offenders Bill, which proposed that sentences for violent criminals be increased.
A California ballot initiative that year overwhelmingly approved the California "three strikes" law, under which multiple convictions for serious or violent felony would result in prolonged and possibly lifelong incarceration.
Another scandal developed in early 1994, when it became known that a convicted serial rapist was to be paroled to the San Francisco Bay area. Communities systematically refused to receive him, and the issue became a major one in state politics. Shortly afterward, the release of another sex offender was delayed when state officials intervened with prison authorities. A solution was found when the man, Christopher Hubbart, had his parole revoked on the grounds of his "severe paraphilia," an action that copied the Washington principle of civilly confining offenders after their criminal sentences were completed.1[*4 ]
The Hubbart case was cited by Governor Pete Wilson in sponsoring the state's new Sexually Violent Predators (SVP) Act, a measure that would potentially affect the roughly four hundred individuals released each month.
The year after the Klaas murder brought another horror story with enormous legal and political implications. This time the offender was Jesse K. Timmendequas, who had been convicted in attacks on children in 1979 and 1981 and who was described by a judge as a "compulsive, repetitive sexual offender." He was nevertheless released after serving seven years in New Jersey's sex offender facility at Avenel, and, along with two other sex offenders, he took up residence in a suburban neighborhood. In July 1994, he raped and strangled seven-year-old Megan Kanka. The outcry following the case went far beyond criticism of anyone agency, and New Jersey legislators introduced a series of bills within a month of the murder,
"rushing to vote without first holding customary hearings or even working out some details." [*15]
New Jersey passed a statute modeled on the Washington law, under which the state would register and track convicted sex offenders for a ten-year period after release and a second sexual offense would lead to mandatory life imprisonment. The centerpiece of the new law was community notification, under which authorities notified neighbors and schools of the presence of high-risk offenders in a community. This came to be known as "Megan's Law," a term canonized by its inclusion in recently published dictionaries.
Even if a legislator had qualms about voting in favor of the statute, it would have taken foolhardy courage to question a bill personalized by close association with the martyred child. While the state assembly debated the measure, a placard featured photographs of other murdered children, with such headlines as
"Free to Rape,"
"Protecting Our Children from Violent Predators," and
"Sex Offender Charged in Girl's Strangulation."
The bill gained force from passionate personal campaigning by Megan's mother, Maureen Kanka [*16]
The community-notification idea quickly acquired the status of a national movement. By mid-1996, the principle had become legislation in thirty-five states and was under consideration in most of the remaining jurisdictions, and convicted offenders were required to register with the police in all states except Massachusetts.
States were divided between those requiring "active" notification, in which police notified relevant groups considered to be at risk, and "passive" notification, in which private citizens must take the initiative to seek information about offenders: twenty-four states adopted active policies, eleven adopted passive ones. Notification acquired federal status in a crime bill signed into law in 1996, in effect a national Megan's Law, requiring states to warn communities when convicted sex offenders moved in. [*17]
Federal activism in this area reflected a consistent political trend. Although the cause of child protection clearly stood high among President Clinton's ideological priorities, it also became politically essential. During his first two years in office, Clinton was much criticized by conservative advocates of traditional morality and family values, and the president countered rhetorically by defending the interests of children.
This debate became sensitive in 1993, when Clinton struggled to achieve the admission of gays to the U .S. military while fending off charges that the administration was supporting perverts and predators. [*18]
The president's determination not to be outflanked on children's issues partly explains his fervent activism during late 1993, when the Justice Department seemed to relax the
severity of the child pornography laws. Following the 1994 elections, which were disastrous for his party, Clinton was still more eager to present himself as sound on issues like family, morality, and values, and during the next two years the White House became a staunch supporter of measures like sexual predator statutes and laws to protect children on the Internet.
President Clinton placed himself at the forefront of the movement against sex predators. In January 1994, he referred to the Polly Klaas incident in his State of the Union address -- a moment that, as one news commentator claimed, "tugged at the heartstrings of every parent in this country."
By 1996 the president was campaigning for a national registry of sex offenders and child molesters, as outlined in a bipartisan bill co-sponsored by Senators Joe Biden and Phil Gramm. Under this law, police throughout the country would be able to access a database providing information on all offenders, regardless of the jurisdiction in which they committed their crimes -- the sort of federal facility envisaged by the Specter committee's hearings a decade earlier.
Clinton's aspiration was that
"the police officer in Cleveland should be able to get information on all known sex offenders in Cleveland whether they committed their crimes in New York or Los Angeles. ... There is no greater right than a parent's right to raise a child in safety and love. That's why the law should follow those who prey on America's children wherever they go, state to state, town to town."
In a radio address, the president declared,
"Deadly criminals don't stay within state lines, so neither should law enforcement's tools to stop them."
During the 1996 election campaign, the Democrats ran a television commercial in which Marc Klaas used home videos to tell Polly's story and then praised Clinton's activism:
"When it came to protecting children, the president had the courage to make a difference." [*19]
Megan's Law involved public participation in the supervision of sex offenders -- one of the most ambitious and perhaps alarming aspects of the get-tough attitude. Before, proposals to keep ex-convicts under surveillance had given police departments or other agencies the responsibility of keeping records of their locations and ensuring that they reported periodically. In the 1990s, anticrime activists enlisted the public at large to maintain offenders under a kind of community surveillance that had few precedents in Anglo-American law, at least not since the days when thieves, adulterers, and blasphemers were branded or otherwise mutilated in order that they be identifiable by their crimes.
The departure was seen as justified by the extreme harm caused by offenders, their immunity to reform
or treatment, and the ubiquitous danger posed to the nation's children. A sex offender, however nonviolent his crime, was felt to cause a far more immediate menace than the mugger, robber, murderer, confidence trickster, or corporate polluter, who were not subject to like restrictions.
The idea of warning the public originated in an ad hoc way by the quirky decisions of local courts through the 1980s. When a twice-convicted child molester was sentenced to prison in Oregon in 1987, his parole conditions required him to move to a new house in a different neighborhood, where he would place a sign on his front door stating "Dangerous Sex Offender -- No Children Allowed."
The local American Civil Liberties Union drew a predictable analogy with Nathaniel Hawthorne's Scarlet Letter; but stigmatizing practices later acquired statutory force. Under Louisiana's "scarlet letter" bill, a released sex offender was required to personally notify neighbors of his record; in urban areas this meant mailing details about himself and his offense to everyone within a three-block area. Ex-convicts were required to wear special clothing and to indicate their status by signs on their houses or special bumper stickers on their cars. Some pressure groups consciously sought a more precise revival of the scarlet letter, proposing that predators be physically tagged or branded and calling for automatic lifetime surveillance of all sex offenders. [*20]
The scarlet letter was primitive when set beside the new technologies made available in the next decade in the form of computers and the Internet. In 1994, Indiana adopted Zachary's Law, named for a child victim named Zachary Snider; this required child sex offenders to register with all local law-enforcement authorities in the communities where they lived for ten years following their release, and a Web site posted a statewide registry of convicted offenders.
Other jurisdictions saw this as exemplary. A contemporary Web-based "magazine" exposed
"the names, mug-shots and offense information for every sex offender known to authorities beginning with the state of Minnesota, including those scheduled to be released from prisons each month and those who change their name or gender. ... There are nearly 350 mug-shots of sex offenders who were released from Minnesota prison facilities in 1995."
The state of California now offers a CD-ROM containing the names and records of sixty-four thousand sex offenders.
Although the notification idea was popular, legal concerns now shifted the emphasis of anticrime militants to more passive ways of sharing information. As originally envisaged, police officers or members of other groups
would visit the appropriate houses in a community, informing them that their new neighbor was a sex offender. Under the revised model, information would not be given out freely but would still be available to anyone who cared to inquire, either by visiting an office, accessing a computer database, or calling a phone number for information about the record of a given individual.
New York's Megan's Law permitted the names and addresses of convicted sex offenders to be released through local police departments and by means of phone numbers in order to preserve children from "dangerous pedophiles and sexual deviants." But a federal judge prevented the implementation of such notification procedures, which would have publicized the whereabouts of some five thousand offenders on parole or probation in the state. [*21]
Community notification was controversial, for it incited vigilantism and made rehabilitation virtually impossible. Nor could these problems be dismissed as unexpected, as they had been thoroughly foreshadowed during previous eras.
The Fred Stroble case of 1949 led the California legislature to implement severe measures requiring all sex offenders to register with county sheriffs. The remarks of journalist Howard Whitman are worth quoting, especially as he himself believed finaly in the gravity of the sex crime menace:
"It was the old idea of the brand allover again, though it took the form of this blacklist file instead of the old scarlet letter of New England. There was little thought of doing anything to rehabilitate these people -- or even to protect society from them. The emphasis was merely on having them branded and filed, Gestapo style, so that they could be hounded and cracked down upon when the public mood so demanded. ... Why not burn them at the stake? Saves transportation."
These words still carry an echo. As an attorney defending Louisiana offenders remarked:
'What you're doing is setting these people up for complete future. Nobody can live in a house with a sign out front that says 'Hi! I raped a child."'
Ex-offenders in Washington State
"have been harassed, evicted, fired from jobs, and in one case, burned out by frightened neighbors."
When one molester was released,
"friends and families of his victims used the information and photographs from police to make thousands of fliers warning of his release, then posting them and handing them out at schools and at ferry terminals. Local news programs showed a picture of the man on their evening broadcasts, and students were sent home with emergency notices warning their parents about him," [*22]
As in the 1940s, much debate is possible about exactly what constitutes a "dangerous" sex offender, and authorities err on the side of caution in stigmatizing minor sexual deviants.
Early examples of the New Jersey legislation included one case in which a twelve-year-old boy admitted to sexually fondling his eight-year-old step-brother while they were taking a bath -- an incident that most jurisdictions would not contemplate prosecuting as a criminal matter. The child received a three-year probation term, but on its completion, he was required to register and be tracked as a sex offender for the next fifteen years.
In New York State, individuals qualified as sex offenders by committing anyone of thirty separate crimes, seven of which were misdemeanors. The first man thus labeled in the state had committed statutory rape with a sixteen-year-old girl, which brought a sentence of sixty days' house arrest; it was his only sexual offense. Although not a pedophile, serial or otherwise, and fitting no one's definition of sexual dangerousness, the man was required to register so that his whereabouts could be tracked by local communities. [*23] He was forced to leave his home, which was located near an elementary school -- a prohibition reflecting the law's principle that all sex offenders constituted a danger to children.
The only defense for this system was that minor sexual charges were predictors for larger problems, but would even so broad a trawl catch potentially dangerous offenders?
As had been noted in the 1940s, a criminal record did not necessarily give an accurate guide to a person's real character. When Megan's assailant had been tried in 1981 for choking and assaulting a seven-year-old girl, initial charges included five felonies, including kidnapping and attempted murder, but these were reduced to the far less serious "attempted sexual contact and attempting to cause serious bodily injury." This reduction occurred because of the difficulty of using child witnesses and the family's desire to avoid placing their child in a courtroom situation. Because the man was convicted of only these lesser offenses, even if a predator law had been in effect at the time of his trial, it is not obvious that he would have qualified for inclusion. Special offender laws threatened to persecute relatively minor offenders while allowing the truly dangerous slip through. Plus ša change. ...
Legal challenges accumulated. The original Washington State law was criticized for mingling the approaches of civil and criminal justice: although using the language of civil commitment, the statute's criteria for labeling a "sexual predator" differed significantly from general civil
commitment laws, which required a specific finding of mental illness. All that was needed was proof that the person had been
"convicted or charged with a crime of sexual violence"
and had suffered from
"a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence."
Using a mere charge, rather than a conviction, to justify penalties involves assumptions far different from those of normal criminal procedure.
California's SVP statute was likewise attacked for confusing civil aDd criminal procedures:
"In order to accomplish its goal, the statute permits indefinite confinement on the basis of disorders which do not rise to the level of a mental illness. It applies its provisions if a fact-finder believes a defendant is likely to re-offend at any point in time, without requiring any present dangerousness. It allows for lifetime confinement even if treatment offers no potential for success."
In Canada, legal doubts overcame early enthusiasm for special legislation, which similarly arose when a boy was murdered by a paroled molester, but a proposed law was withdrawn as probably unconstitutional. [*24]
The new statutes appeared to violate ex post facto principles by imposing penalties that were not in legal effect at the time a crime was committed, in some cases demanding the registration of offenders whose acts had been committed years or decades before. Other courts were sensitive to complaints that double penalties were imposed for the same offense.
In August 1995, a federal judge overturned the Washington statute on the grounds that community notification involved additional punishment imposed after the offender had completed his or her sentence, and courts in New Jersey, Alaska, and New York reached the same conclusion. A federal judge in New Jersey remarked that, further,
"even without considering the potential to incite vigilante activity, dissemination of this information could severely disrupt the lives of the [offenders] and reduce their ability to maintain gainful employment." [*25]
By mid-decade, measures passed across the United States were in a state of thorough legal confusion. In both Wisconsin and Washington, predator statutes were upheld by state supreme courts, but the Washington law was ruled unconstitutional by a U .S. district court. Also controversial was Kansas's Sexually Violent Predator Act of 1994, under which a sex offender who had served his sentence was subject to a separate, civil jury trial to determine if he were still dangerous and suffering from a "mental abnormality" that caused his criminal behavior; if these conditions were found to exist, he would then be civilly confined in a mental hospital and reevaluated
each year, with the potential for lifetime commitment. The law was struck down by the state supreme court in 1996 on the grounds that "mental abnormality" had no psychiatric basis and that people who were not mentally ill could be unconstitutionally confined.
The defendant involved, Leroy Hendricks, was a classic "predator" who had been involved in offenses against children over four decades and had consistently re-offended when released from various institutions.
It was this case, Kansas v. Hendricks, that was appealed to the Supreme Court and that in 1997 gave the justices the opportunity to rule on the contentious predator legislation. By five votes to four, the Court upheld the Kansas statute, permitting detention past sentence on the basis of a dangerous "abnormality."
Coincidentally or not, the decision was announced only a week after the conviction and capital sentencing of Jesse Timmendequas in the murder of Megan Kanka. In an opinion written by Justice CIarence Thomas, the Court agreed with the state's contention that the "predator" hearings were not in fact criminal proceedings and did not therefore threaten double punishment for a single offense, although a dissenting opinion written by Justice Stephen Breyer agreed with the defendants claim that he was being subjected to double jeopardy imposed by an unconstitutional ex post facto law.
The implications of the judgment were uncertain. Thomas suggested that the "abnormality" principle justified detaining those whose condition fell short of true mental illness, which could open the way for a vast expansion of semi-criminal commitment; other justices warned that future laws would be carefully scrutinized. Whatever the long-term outcome, the reborn sexual psychopath laws had survived their first crucial test. [*26]
The collapse of the original sex psychopathy laws in the early 1970s was accelerated by general doubts about the capacity of institutions to do more good than harm. Institutional responses to deviancy revived in popularity during the 1980s, and the sex predator laws reflected the principles that were regaining credence throughout the justice system.
The most obvious revival occurred in the prisons and jails. The total number of inmates in the early 1970s stood around 330,000, but the figure soon expanded dramatically; by the mid-1990s it exceeded 1.5 million, by far the highest incarceration rate among the advanced industrial nations.
Although less dramatic, a similar revival of older practices occurred in the mental health arena. In reaction to the excessive use of commitment in the mid-twentieth century, courts and legislatures made it difficult to commit
DepoProvera, and he initiated a lawsuit to require the state to supply the means by which his desires could be controlled.
A similar case involved a man in Texas, Larry Don McQuay, who claimed to have molested hundreds of children. Sentenced to prison in 1989, he began a prolonged campaign to prevent his being released when his term was up, warning,
"I am doomed to eventually rape then murder my poor little victims to keep them from telling on me."
He pleaded that, if his release could not be legally prevented, then he should be castrated. [*29]
In the harsher climate of the 1990s, the need to control sex offenders acquired added urgency, and there was a renewed willingness to experiment with solutions once deemed extreme. Sterilization laws of the early twentieth century were recalled by demands for measures mandating that the sexual urges of offenders be reduced or eliminated, and a California law that passed with great fanfare in 1996 required "chemical castration" for repeat sex offenders. Anyone twice convicted of child molestation would be periodically injected with a drug to inhibit sex drive, unless the offender himself agreed to surgical castration, and provisions could be invoked for a first offense if it were sufficiently egregious. Governor Wilson asserted that the goal was "to control the deviant behavior of those who stalk our young," and the bill's sponsor argued that "there is no crime out there more heinous than child molestation." Although courts in other states expressed doubts about the procedure, the public mood made it likely that such proposals could become commonplace. [*30]
Although legislation enacted in the 1990s revived the debates of the distant past, one of the major areas of controversy concerned a whole new medium undreamed of in earlier panics: the Internet. The image of pedophiles hunting on-line originated as early as 1983, when the NAMBLA inquiry suggested that abusers were using computers to circulate details of potential victims in addition to pornographic images and fantasies. In 1986, the Meese Commission on Pornography placed special emphasis on the need to control the exchange of child pornography through computer networks. [*31]
Beginning in the late 1980s, media reports told of molesters using the Internet to seduce children by adopting the personae of young people in the anonymous chat rooms that were so popular a feature of the networks. It was charged that " on -line pedophiles" were conducting sexually oriented
conversations with children and teenagers, with a view to arranging encounters or abductions: as one on-line guide for parents warned,
"Pedophiles have a new playground on which to attract children-the Internet."
Fears were aroused by the facelessness of the medium, which permitted no visual clues about the true identity of a message's sender. The threat-potential was enhanced by the symbolic associations of the phrases the Net and the Web -- both devices used to hunt, entrap, and confine. And these images predated the explosion of home computing: as far back as 1977, those warning of a national menace of organized pedophilia had spoken of "spider webs strung out all over the nation," while ritual abuse was called "the devil's web." [*32]
A spate of "cyberstalking" incidents highlighted pedophiles using computers to approach lonely latchkey children. A 1989 case involved two Virginia men accused of using a computer to arrange a meeting with a boy in order to molest him and possibly to kill him in a snuff film, an attempt exposed when the men unwittingly contacted a police officer on-line.
Federal investigations were galvanized by an alleged link between Internet usage among pedophiles and the 1993 disappearance of a Maryland boy, and child protectors now went on-line to seek out molesters. Police reported efforts to expose pedophile-oriented Bulletin Board Services, or BBSs, and the vigilante Guardian Angels now formed their CyberAngels.
A police officer in San Jose, California, claimed,
"It really doesn't take us long to connect with a pedophile, usually only two or three minutes. ... They are out there waiting to prey on these children."
Articles appeared in Newsweek and USA Today, and the Washington Post ran a headline that alerted readers to an innovation: "molesting children by computer." [*33]
Media reports of on-line pedophilia peaked during 1995, when a Georgian was charged with "surfing the Internet in search of children to molest" and a Florida man seduced and raped a fifteen-year-old Maryland girl whom he had met through electronic conversations.
The New York Times devoted a front-page story to an imprisoned pedophile who used a computer system within the penal institution to maintain detailed files on a number of children living in nearby communities in Minnesota. In one case, two Texas men were accused of assaulting boys encountered through a "computerized sex ring," a striking and increasingly common juxtaposition of words. [*34]
This technological dimension explains a renewed upsurge of charges concerning organized pedophilia. Between 1986 and 1988, the phrase pedophile ring was recorded on just four occasions in the media outlets
lets surveyed by Lexis-Nexis, while the combined figure for the four years 1989-92 was nine; but thereafter the frequency rose, from
eighteen references in 1993 alone to
thirty in 1994 and
twenty-nine in 1995.
Concerns about "cyberstalking" soon merged with those about "cyberporn," or the transmission of pornographic imagery through computer networks, although there was some confusion about what cyperporn entailed.
Discussions of child pornography on the Internet usually touched on two quite distinct problems, namely,
the portrayal of sexual acts involving children and also
the exposure of children to adult material.
At the height of censorship controversies during 1995, advocates of restriction enjoyed much success in portraying the whole issue as a subset of child pornography, offering the chance to regulate the Internet by the lower legal standards prevailing in that area and also to control merely indecent as well as overtly obscene material.
As in previous debates, the amount of child pornography available was vastly exaggerated and portrayed as more central to the broader sex market than was actually the case. Also, pornographic materials were regarded as inextricably linked with actual molestation, so that stalking and obscenity were seen as two sides of one coin. Although the two activities are connected in some cases, it is not certain that sexual fantasy and actual behavior are so inevitably connected.
Much of the controversy concerned the Usenet, a collection of thousands of on-line discussion groups devoted to every conceivable aspect of popular culture, hobbies, politics, and science. Although sexually oriented groups represented a small proportion of the Usenet, they permitted the transmission of any type of text, story, or fantasy, while binary technology allowed the transfer of visual images. Sexual materials became widely available with the expansion of Web access during 1994 and 1995, the vast majority of images showing adult participants engaged in acts no different from those found in any sex magazine, but Internet pornography raised multiple concerns about the creation of a whole environment outside the control of governments, laws, and codes of decency.
The media now warned of the danger posed to public safety and decency. One article from the Spectator was read in its entirety into the Senate record by Charles E. Grassley, Republican of Iowa, who had a long record of activism against obscenity and organized pedophilia. [*35]
Denouncing "an electronic sink of depravity," the Spectator piece described stories encountered in specialized Internet groups. One story, by "Blackwind," describes
"a six-year-old boy named Christopher, who, among other indignities, suffers a castration -- reported in loving detail -- before being shot. The other is a girl named Karen, who is seven years old and is raped repeatedly by no fewer than nine men, before having her nipples cut off and her throat slashed."
According to this account, Netnews groups regularly featured
"tales of fathers sodomizing their three-year-old daughters, or of mothers performing fellatio on their pre-pubescent sons, or of girls coupling with horses, or of the giving of enemas to child virgins."
" Alt.sex.intergen," the "intergenerational" group, was described as the "pedophile bulletin board."
On-line services like America On-Line (AOL) and CompuServe came under fire for however unwittingly transmitting extreme and perhaps illegal pornographic materials.
In 1993, forty people in fourteen states were arrested for circulating child pornography on-line in a federal investigation named Operation Longarm. U.S. customs agents raided the alleged headquarters of a "worldwide computerized child porn ring," and the federal government declared that computers represented the key front in the war on child pornography.
In 1995, one hundred individuals were arrested in the Cincinnati
area for downloading child pornography via AOL, and the service was being cited
in embarrassing contexts. The services became conscious of the need
to act visibly in warding off restrictive regulation, and AOL and the other
major networks cooperated with the NCMEC in sponsoring warnings about keeping
children safe on the Information Highway. [*36]
By early 1995, the issue of cyberporn was gaining political force, invigorated by authentic cases of sexual predators who had entered the electronic age. The major legislative endeavor was launched by Senator James Exon of Nebraska, ,a conservative Democrat who had cooperated with Charles Grassley over fiscal matters. [*37]
Exon proposed to amend the existing Communications Decency Act (CDA) to regulate "indecent" or offensive material on the Net, imposing fines and prison terms on anyone who knowingly made material available to those under eighteen years of age. For many reasons the Exon Bill was felt to be excessively punitive and a threat to the whole emerging technology. If passed, the law would open to prosecution material that was merely offensive to some, and the moral standards applied could be those of the most conservative and offense-prone communities. This would limit the discussion of virtually any sexual or
controversial issue on the Internet and criminalize speech normally subject to First Amendment protections. The measure also treated the Internet as a species of broadcasting, so that anyone transmitting a message judged offensive or indecent would be as liable as a television station would be.
Internet advocates argued that a better analogy was provided by the publishing world, in which free speech was well protected, or perhaps of the telephone service, which transmitted information impartially without being held liable for its content or consequences.
In the spring of 1995 the Exon proposal appeared to be doomed, but it not only survived in amended form but was actually voted into law at the end of the year. This turnabout was achieved by a powerful alliance of moral activists in Congress and the executive branch, whose summer-long campaign against cyberporn made moderates reluctant to be seen as opposing measure to defend children.
A turning point came when Exon presented to his Senate colleagues a blue book of extreme pornographic images supposedly downloaded from the Internet. Anti-pornography activists drew the legislators' attention to similar pictures depicting bondage, bestiality, and pedophilia. As Time noted,
"few Senators wanted to cast a nationally televised vote that might later he characterized as pro-pornography,"
and the bill passed handily, eighty-four votes to sixteen. [*38]
This movement drew strength from an article in which a student from Carnegie-Mellon University reported that a large proportion of observed Internet usage involved extreme pornographic materials. Examining Usenet groups, Martin Rimm argued that there was
"an unprecedented availability and demand of material like sadomasochism, bestiality, vaginal arid rectal fisting, eroticized urination, ... and pedophilia."
Ralph Reed, the leader of the Christian Coalition, stressed that
"this is bestiality, pedophilia, child molestation."
The study became a major news event, with Time magazine publishing a lengthy article under the title "On a Screen Near You: Cyberporn," a piece that Grassley promptly read into the Senate record. [*39]
Reporting on "the first survey of on-line erotica," the magazine remarked that
"it's popular, pervasive and surprisingly perverse,"
citing Rimm's finding that
"on those Usenet newsgroups where digitized images are stored, 83.5 percent of the pictures were pornographic."
The images portrayed not just conventional nudity and heterosexual intercourse but also
"pedophilia (nude photos of children), hebephilia (youths) and what the researchers call paraphilia -- a grab bag of 'deviant' material that includes images of bondage, sadomasochism, urination, defecation, and sex acts with a barnyard full of animals."
Time used the Rimm study as the basis for an account of alleged computer threats to children, reporting that a ten-year-old boy who frequented one chat room received
"E-mail from a stranger that contained a mysterious file with instructions for how to download it. ... The computer screen filled with 10 thumbnail-size pictures showing couples engaged in various acts of sodomy, heterosexual intercourse and lesbian sex."
Newsweek contextualized the pornography issue with cyberstalking:
"Most disturbing of all are the tales of sexual predators using the Internet and commercial on-line services to spirit children away from their keyboards. Until now parents have believed that no physical harm could possibly result when their progeny were huddled safely in the bedroom or den, tapping on the family computer. But then came news of cases like the thirteen-year-old Kentucky girl found in Los Angeles after supposedly being lured by a grown-up cyberpal." [*40]
For all the initial furor. the Rimm study soon fell into disfavor. Although both Time and Grassley cited its credentials as "the Carnegie-Mellon study," it did not stem from a research-team with any official standing but was the work of one undergraduate student. Its clandestine surveillance of computer usage was a possible violation of scholarly protocols governing research on human subjects, and other media sources also showed that its figures were misleading. [*41]
Most of the images surveyed were taken not from the Internet as a whole but from certain pay-for-service adult BBSs, which cater to a specific market of those who choose to receive pornographic materials; there was in fact little danger that the images might have been accidentally picked up by unsuspecting teenagers.
Overall, the volume of pornography on the Internet was perhaps a fraction of 1 percent, rather than the huge proportion alleged. These objections soon led to caution about Rimm's study, and the Senate Judiciary Committee withdrew an invitation for him to appear as the star witness on the proposed legislation.
But the news coverage given to Rimm's work nevertheless enabled campaigers to employ the supposed datum -- that more than 80 percent of Internet traffic involved smut -- a figure that acquired the status of social fact.
By July, the stage was set for hearings to proceed in an atmosphere that was far more sympathetic than might have been likely a few months earlier. Without Rimm, the main witness on threats to youth became Barry Crimmins, a
"children's rights and safety activist, ... also an adult survivor of childhood sexual abuse," [*42]
Crimmins claimed that AOL offered "numerous atrocious rooms" devoted to incest, pedophilia, and perversion.
"There is a major crime wave taking place on America's computers. The proliferation of child pornography trafficking has created an anonymous 'Pedophile Superstore.' As a result, the de facto decriminalization of child pornography is taking place. The demand for child pornography is also a demand for innocent children to be abused. ... The on-line service America OnLine has become an integral link in a network of child pornography traffickers."
Self-regulation had failed:
" AOL is the key link in a network of child pornography traffickers that has grown exponentially over the last several months."
Crimmins called for urgent punitive legislation:
"The pedophiles have a huge head start. People need to see their neighbors (who have participated in these criminal acts) taken away, jailed, and stigmatized as 'perverts.' If this is done in a public, no-nonsense manner, it should seriously reverse the crisis that is destroying countless innocent children. This crackdown must also include serious punitive measures against companies like AOL."
Crimmins's strategy was apparently taken seriously by the federal government. That September, AOL users were the target of a major sting operation, Innocent Images, which culminated in fifteen arrests and 120 searches of homes and offices around the nation, the charges involving both child pornography and the sexual solicitation of children on-line; media coverage portrayed the arrests and raids as a decisive crackdown on child exploitation and on pedophile rings. Similar interventions took place during the next year, when federal agents left baited messages in attempts to detect or entrap potential pedophiles on-line. [*43]
Although the AOL investigation had been in progress for two years, it is striking that the denouement of these federal actions should have come so shortly after the congressional furor over cyberporn. In keeping with the Clinton administration's policy on child protection, Innocent Images showed that the executive branch yielded nothing to the legislative in its zeal in this area.
The federal government had a vested interest in the regulation of the Internet, above and beyond the more obvious politics of morality. Following the Oklahoma City bombing of April 1995, investigations showed that the Internet was freely used by extremist groups to circulate radical and racist propaganda as well as techniques for waging guerrilla warfare and making bombs. This led liberal legislators to advocate the surveillance or suppression of communications designed to incite violence, an argument identical to the Exon demand for the regulation of Net materials promoting illegal acts.
Moreover, the Justice Department was at this time vociferously
demanding legal restrictions on the use of encryption technologies that could prevent federal agents from intercepting electronic messages relating to drug trafficking, espionage, or organized crime. It was thus in the interests of the administration to oppose overly strict interpretations of the First Amendment in the context of electronic communications and to exploit concern over child pornography for other ends. At the height of the encryption controversy, media stories declared that international rings of pedophiles and child pornographers were using the same encryption program then being targeted by the Justice Department. [*44]
Whatever the reason, a concatenation of congressional and Justice Department action fundamentally changed the nature of the debate and opened the way for the success of the Exon bill. As part of an extensive revision of telecommunications regulation, President Clinton signed a law making it illegal for a company to knowingly transmit sexually explicit material to minors over computers; it would be a serious criminal offense to post indecent or "patently offensive" sexual material that could be viewed by those under eighteen years of age.
The CDA immediately met legal challenges, and crucial components of the law were struck down by a panel of federal judges, who found it "profoundly repugnant" to First Amendment principles. In 1997, the U.S. Supreme Court agreed unanimously that the Internet was entitled to the highest standards of constitutional protection, and thus the CDA's provisions were resoundingly defeated.
Under the act, the term indecency could apply to artistic works or academic discussions dealing with topics that were sexual or controversial in nature, including
"discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalogue of the Carnegie Library."
The potential consequences were frightening:
"In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another."
The justices were eager to limit the popular tendency to use the ideology of child protection as an endlessly adaptable excuse to encroach on freedom of speech:
"Regardless of the strength of the government's interest" in protecting children, "the level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox." [*45]
Shortly after the execution of Westley Alan Dodd, a study of his case concluded with a threatening passage:
"Until such time that predators like Dodd can be effectively removed from our midst, society must remain aware that there are other Westley Alan Dodds out there at this very moment, lurking in the shadows and waiting for just the right moment to strike."
However hyperbolic in tone, this sentiment was more or less accepted as truth by millions concerned about the threat posed by itinerant pedophiles, just as it would have instantly struck a chord with observers half a century ago. What was remarkable was how sharply this view differed from the emphasis of the child-protection movement in 1985, when abuse was widely blamed not on unknown monsters who wandered from "state to state, town to town," but on the familiar men in the next room. [*46]
The change was still more marked in the debate about cyberporn, which was founded on an image of the ethereal pedophile insinuating himself into the family home, that fortress of safety, innocence, and domesticity: teaching us whom we should fear also implies whom we should trust.
To paraphrase Newsweek, what physical harm could possibly result when our offspring are huddled safely in their bedroom or the den? [*47] Little more than a decade earlier, feminist writers were arguing that the bedroom and the den were precisely the settings for most sexual abuse and that the perpetrators were often the victims' fathers and brothers. In the 1990s, this perception almost went the way of older notions like that of the passive, non-aggressive pedophile, as ideas about the sexual menace to children underwent yet another sea change.
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