Harsh anti-sex laws under fire
U.S. Supreme Court limits predator statutes
KOINOS MAGAZINE #34 (2002/2)
Anti-child sex laws have proliferated throughout the world. In many ways, the United States has lead the way. Other countries have enacted strict legislation based on the U.S. model; the text for some written by U.S. police agencies. These laws have been successful in entrapping boy-lovers. About 25 percent of the more than 2 million U.S. citizens in prison are sentenced for sex crimes, many involving children. We look at the legal challenges to two of these laws in this and a subsequent issue.
Twenty-five years ago, ‘Hurricane Anita’ swept across south Florida. Former orange juice promoter turned right wing Christian Anita Bryant led a successful movement to overturn a Miami law protecting gays. Her Save Our Children campaign marked the beginning of an enduring repression against those who would have sex with children. Bryant put child sexual exploitation center stage in North America. From there it grew into a sex panic, spawning increasingly severe laws and spreading to Europe and parts of Australasia.
Many have criticized these laws as ineffective, wasteful of public resources and damaging to civil liberties. They are worse: they created a no-man's land of jurisprudence in which children are safeguarded at any cost and rights protecting those of all ages are absent. The anti-child sex laws erased the clear distinction between criminal and civil law in the United States legal system. Over time, courts had created strong protections in both bodies of law to prevent the government's arbitrarily depriving citizens of their liberty. These protections had been tailored for each body of law. They depended on the laws’ separation.
Today, for sex crimes involving children, these protections are weakened or missing. No longer does the accused have the right to trial by jury or to confront the accuser. The state need not prove guilt beyond a reasonable doubt. Gone are the prohibitions of double jeopardy (repeated punishment for the same crime) or ex post facto (a punitive measure created after a crime had been committed).
In addition, the rationales for the new laws substitute theories from the outer limits of psychology in place of concrete evidence of harm. This has vastly broadened their power. It has allowed them to become ever harsher, in an upward spiral of radicalization.
The result is that people are imprisoned for possessing an image of someone who merely looks like a child who might want sex. They are confined for life for touching a teenage boy on his clothing. Conviction rates are overwhelming. The federal government wins more than 97 percent of its prosecutions for child pornography. States with sexually violent predator laws, which allow them to incarcerate people for life, win about 80 percent of their commitment hearings.
Late last year, the highest court in the United States considered appeals of two of the most far-reaching laws. They had been repeatedly and unsuccessfully challenged. This time, things changed.
On 22 January, the Supreme Court limited the predator laws. It set a new standard of proof states must use in order to find someone a predator. The decision means additional litigation for states already burdened by the expense of implementing these laws; horrifically high costs which have stalled them from spreading beyond 16 states. The Court's ruling is a major setback for these laws.
There is also a possibility the Supreme Court will modify the ban on ‘virtual’ child pornography. This prohibition outlaws possession of sexually explicit depictions of people who appear to be children. At the time this article was written for Koinos, the Court had not announced its decision, six months after its hearing; an indication the justices are divided. Koinos will provide an update in a future issue.
About 1,300 people are confined as sexually violent predators in special ‘treatment’ facilities and mental hospitals. They have completed a prison sentence for a sex crime. They will be held until they can prove they are no longer likely to have illicit sex. Few have been able to do so.
These laws cover a wide range of nonviolent conduct. Most states can confine anyone committing "any criminal act [found] to have been sexually motivated". In Missouri, a predator is anyone "who, without committing an actual crime, do[es] something sexual in nature to frighten someone else".
The concept of a ‘sexually violent predator’ is recent and so far unique to the U.S. But many other countries have indefinite-detention laws which employ mental health components:
Out of control
The U.S. Supreme Court upheld the predator laws in Kansas v. Hendricks (1997). The opinion by Justice Clarence Thomas said states must show in a hearing that a person was "volitionally impaired" –unable to control their desire for illicit sex. Thomas said Leroy Hendricks – whom the media had portrayed as highly dangerous although the state conceded he never threatened anyone – had admitted he could not control himself.
This was not the case. The gay magazine The Guide says Hendricks – who served ten years for touching the crotches of two 13-year-old boys through their clothing – merely gave an honest reply to a trick question which the media then twisted to label him as out of control: "At his [predator] commitment hearing, Hendricks said he wasn't going to molest children any more.
But how can you prove you won't do it again, the prosecutor asked. Well, Hendricks answered, he couldn't prove it. The only way to prove it would be if he were dead." Hendricks' comment was reported throughout the nation as his saying he would not stop molesting until he were dead. It was cited by the Supreme Court as evidence he was volitionally impaired.
Volitional impairment was key to Kansas v. Hendricks. The Supreme Court was on wafer-thin ice in upholding the statutes. The way it did so was to extend civil commitment laws which apply to mentally ill people to include those who are not mentally ill. The only requirements in the states' predator laws as written are that the person had: (1) previously committed a sex-related crime or act, and (2) been diagnosed with a ‘mental abnormality’ – a term without scientific or medical meaning – or with a personality disorder. A committee of prison, police and social services officials makes the diagnosis; some states do not require a psychological evaluation. The diagnosis can be made merely by reviewing the prisoner's file.
This was a radical departure from existing mental health law, which permitted involuntary confinement only under narrow psychiatric criteria. It brought the civil commitment process exceedingly close to criminal law detention, but with none of the liberty protections either law had had.
As a sop to civil libertarians, the Court added a requirement for volitional impairment. Justice Thomas' opinion for the bare 5-to-4 majority mentioned the concept at least ten times without defining it. This strategy came back to haunt him when, four years later, the Court considered an appeal by the State of Kansas in another case. In it, a predator claimed he was not volitionally impaired.
Tough to prove
Kansas' highest court had ruled Michael Crane's commitment unconstitutional because the state had not shown he was volitionally impaired. Crane had been diagnosed with a personality disorder, this after he finished a five-year prison term for exposing himself to a tanning salon attendant and to a video store clerk. He had grabbed the latter and threatened to rape her unless she fellated him.
In last fall's Supreme Court hearing for Kansas v. Crane, the state's attorney general (chief prosecutor), Carla Stovall, warned the justices if they endorsed the standard set by the Kansas court, the state would have to free many violent predators. She told the justices the standard of ‘total impairment’ set by the Kansas court was impossible to meet.
She claimed volitional impairment as mentioned by Justice Thomas in Hendricks was merely descriptive to the opinion, not essential. "The overwhelming weight of mental health authority," she said, "would view virtually any person's behavior as falling along a continuum of volitional control, with even brutal, murderous sex offenders (…) exercising considerable volitional control..."
The justices rejected this. One pointed out: "We also relied on prior authority that made some reference to lack of control. I don't think that what was done by the court below was totally off the wall in light of what was said in our prior cases... How would you draw the line?" There should be no need to show lack of volitional control, Stovall replied. The justices said this would be too broad. Several pressed a point Justice O'Connor made early on, that more than 75 percent of the prison population could be labeled as predators. Noted one: "you would [also] pick up a substantial part of the population outside of prison."
Under questioning Stovall acknowledged people could be predators for having a minor personality disorder. One justice exclaimed: "wow." Her quick reassurance Kansas has committed only 1.5 percent of 5,000 people screened brought this rebuke: "If we thought of all prosecutors as being wise and kind and good, then there would be a whole lot of rights that we wouldn't have to worry about."
Perhaps this justice was recalling Stovall's remark to the Kansas legislature when it first considered the law. Inadvertently acknowledging its purpose of preventive detention, she had declared: "We cannot open our prison doors and let these animals back into our communities."
The Court ruled 7-to-2 against Kansas. It imposed a standard for volitional impairment: "proof of serious difficulty in controlling behavior". This adds a third requirement states must meet in order to commit. Kansas will have to give Crane a new hearing. So will the other states confining predators. In their rush to incarcerate, states had not bothered to prove volitional impairment for most.
More importantly, it opens the gates to a deluge of additional hearings and appeals – litigation which will prove costly for the government. The vagueness of the new standard allows ample room for defense attorneys – usually hired at public expense – to contest states' claims.
In its opinion, the Court said proof of serious difficulty should be decided on a case-by-case basis. This all but invites more lawsuits. Wrote Justice Breyer: "The Constitution's safeguards of human liberty in the area of mental illness and the law are not always best enforced through precise bright-line rules. We have sought to provide constitutional guidance in this area by (…) elaborating generally stated constitutional standards and objectives as specific circumstances require."
‘Predator’ has been a concept long used to vilify homosexuals and other ‘sex deviants’ in North America. But even before the Court's ruling in Crane, the predator laws were faltering under their own weight. Washington State, the first to enact such a law, has become the poster child of what's wrong with them.
Washington has spent more than $100 million to defend a long-running lawsuit in which a federal court found the state's predator treatment facility in contempt (acting illegally) because it does not provide constitutionally adequate treatment. This is in addition to its $50 million/year operating cost for housing about 100 individuals. The litany of problems in Washington includes violent public reaction the few times a predator has been released, the treatment center's staff physically and verbally abusing the inmates, and supervisors falsifying patient records.
Ten years after Washington's law took effect, the legislator responsible for creating it expressed remorse to the Seattle Times: "It just makes me want to pull the covers over my head," laments Ida Ballasiotes, once a moral force behind the creation of the law who now sees it as ill-conceived and wasteful. "Solution? I don't have one," she said, "except I do know that whatever it is, it is going to cost lots and lots of money."
Ballasiotes may have been referring to an influential article by legal scholar John Q. La Fond. He characterized predator laws as "black holes" sucking in state resources. Nationwide, the treatment programs average $100,000 per person per year, four times the cost of criminal imprisonment.
La Fond and others have also commented on the corrosive effects these laws have on public policy. What had been a focus on therapy is now solely social defense. Instead of rehabilitation, says Law Professor Jonathan Simon, the objective is "waste management". The price for this confine-at-any-cost approach has proven too high. Twenty states which were considering predator programs have halted plans for them. Washington had already begun dismantling its program before the Supreme Court's ruling. Probably the other states will follow.
The reason underlying the concern about costs is that volitional impairment is an ill fit with law. There is no easy way to fit them together. A mental health law expert, Eric Janus, compared the psychological literature of impairment to the legal theory and practice of an individual's inability to control their behavior. He charted the many pitfalls in trying to align these two ideas in a way that comprehends how mental health science understands impaired individuals and how the law handles them. He concludes, "...if the inability-to-control concept is to perform its constitutional role, it will (...) exclude the vast majority of sex offenders."
Any other conclusion short circuits Constitutional liberty protections, and allows the state to simply balance the risk of what it sees as safety for vulnerable people against liberty for a violent sex predator. The outcome of this type of balancing test is a foregone conclusion. Judging by its ruling, the U.S. Supreme Court is not ready to let this happen. This could well be the beginning of the end of the predator system.
Sources: see Appendix.
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