“If we in the judiciary do not have the authority, indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.”
Federal Judge Martha Craig Daughtrey
Sex educator, Dr. Marty Klein recently published a blog titled, “Politics? I’m Interested in Sex, not Politics.” His thesis is that sex and politics are inextricably connected, and if you care about rational public policies regarding the management of sexual behaviors, it helps to have a stomach for politics.
There’s a natural tension between complex social problems, public opinions, and laws – perhaps that’s one definition of “politics.” In a democracy, laws are frequently driven more by public opinion than sound science or constitutional principles. Some “sex offender” laws seem to be driven by fear, anger, and misinformation, and resemble moral panic more than informed public policies. When the lag-time for scientific advances takes too long to engender best practices or influence public policies, or when a compelling public interest can no longer justify laws that breach the boundaries of constitutional safeguards, often the courts step in. Beyond the illustrations that Dr. Klein offers in his blog, there are many examples of laws that are (or were) unwarranted, overreaching, or unreasonably intrusive, and the courts intervened. Consider these “sexual offenses” of yesteryear.
In 1967, SCOTUS struck down laws that banned both interracial marriage and interracial sex (Loving v. Virginia). Until 1965 it was against the law in some US states for married couples to obtain prescription birth control (Griswold v. Connecticut). It took seven more years for that right to be extended to unmarried individuals (Eisenstadt v. Baird). In 1962, sodomy was considered so offensive that it was illegal in every US state, in some cases even between married partners. Sodomy laws were reaffirmed by SCOTUS in 1986 (Bowers v. Hardwick), before finally being struck down in 2003 (Lawrence v. Texas). In 2008, the US Court of Appeals (Fifth Circuit) decriminalized the sale of sex toys (binding in three states). By 2015, 37 US states had legalized same-sex marriage before SCOTUS determined that neither race nor gender were material to the civil controls of marriage. Same-sex marriage became legal in the US, ten years after Canada.
In each of the cases above, before they were eventually overturned by the courts, public opinion had at one time supported these laws. Some would argue that the courts stepped in too soon – others, like Margaret Sanger or Frank Kameny might have said both the tide of public opinion and relief through the courts took too long. History also reveals that even when courts overturn antiquated laws, controversies remain, and there can still be stubborn pockets of social resistance, or widespread cultural repression tenaciously anchored in historical roots. Homosexual acts are illegal in more than 70 countries, still actively enforced, and in perhaps a dozen countries, punishable by death. If not for a 2008 SCOTUS ruling (Kennedy v. Louisiana), some sex crimes in the US might still be subject to capital punishment.
Sometimes, social change makes laws obsolete, and they just fade away, but it is likely that there are still laws on the books criminalizing sexual behaviors (e.g., sodomy, fornication, adultery), which today are unenforced, but leave historical records of public efforts to control interpersonal sex. Sexual violence will always be intolerable, but sexual violations are a broad category of unacceptable sexual conduct.
Every US state, and countries worldwide, struggle with civil controls of marriage and age of consent. In the US and Canada, citizens must generally be 18 to marry, but in Mississippi parties must be 21. In several states, with parental/judicial approval, kids under 18 can marry - as young as 13 or 14 in New Hampshire, and in five other states there is no minimum age. Much to the detriment of teenagers, the age of consent for sex is a minefield - around the world. In the US and Canada, the age of consent is 16-18, with a confusing matrix of exceptions for age differences or factors related to penetration. In most of Europe, it’s even more difficult to navigate age of consent laws that generally range between 14 and 16. In China, Brazil, Japan, Mexico, and the Philippines, the age of consent is 12-14.
Controlling sex has been vexing civilization since prostitution was described as the world’s oldest profession. While sex trafficking and child prostitution is abhorrent throughout most of the world, tolerance for prostitution around the world varies considerably. Depending on one’s role in prostitution, penalties in the US carry fines from as little as $100 to as much as $750,000, and from 15 days in jail to 20 years in prison. Prostitution is legal (regulated) in several counties in Nevada, and some foreign countries. Around the world, and throughout the US, consensual sex, legal in one jurisdiction, can create a “sex offender” in another.
There is a long history of society’s efforts to control interpersonal sex through criminal laws, but now a proliferation of civil laws have made it easier than ever for one to become a “sex offender.” With public angst about “sexual offenders,” the courts are playing a pivotal role in trying to maintain balance between veritable public safety and constitutional safeguards around civil regulations. Competing concerns cannot always be resolved by the courts, but sound science can always help guide the process. It is noteworthy that numerous ATSA members contributed to much of the research noted below, and/or helped to inform policymakers. Informed policymaking does not guarantee an outcome of good public policies; but most assuredly, misguided public policies are the product of misinformed policymaking.
A 2016 decision by the Washington Supreme Court opens the state registry to public view, apparently even for registered juveniles. Washington has strong public-access-to-data laws, and in 2012, the Ninth Circuit ruled that juveniles can be publicly identified on sex offender registries. Laws intended for adults have migrated into the juvenile system, with counterproductive outcomes. The registry has devastating consequences for juveniles. The registry’s “irreparable harm to youth and their families” has been extensively researched and articulately described in a 2013 report by the Human Rights Watch.
There is a growing awareness and substantial research that the sex offender registry is overreaching, ineffective, fails communities, and is counterproductive for those in recovery. There are numerous, ongoing court challenges to the registry, particularly as it applies to juveniles. In 2012 the Supreme Court of Ohio struck down automatic lifetime registration of juveniles, and in 2014 there was a similar ruling in Pennsylvania. As the foundation erodes for the 2003 SCOTUS decision (Smith v. Doe) that upheld SORNA, it is likely that the courts will continue to reconsider registration requirements.
Another popular civil control for “sex offenders” is regulating where they can live or go. While residence or zone restrictions have historical appearances of banishment, about half the US states have statewide residency or zone restrictions. Research is becoming conclusive: residency laws are not only ineffective but counterproductive. The media is beginning to recognize the problems with residence restrictions, and laws are continuously undergoing review by the courts.
In February, 2016 Congress passed International Megan’s Law, which will make international travel for registered sex offenders profoundly difficult, and requires US passports to identify citizens with certain sexual offenses. The public law was challenged in Federal Court in California. ATSA filed an affidavit supporting a motion for preliminary injunction; the US Attorney’s Office opposed the motion. In April, 2016, the motion was denied as premature, but the lawsuit continues.
Perhaps the most onerous civil regulation that “sex offenders” are subject to is civil commitment. There have been thousands of lawsuits filed in US courts challenging civil commitment laws. In 2015, two separate federal courts found SVP programs to be unconstitutional: MSOP in Minnesota, and SORTS in Missouri. The state of Minnesota appealed the District Court ruling and Judge Frank’s remedies to the Eighth Circuit. In April, 2016, the US Court of Appeals in St. Louis heard oral arguments. A decision from the Eighth Circuit is expected in the summer of 2016, however further appeals are expected.
What do all these criminal and civil laws, past and present, have in common? Social controls around interpersonal sexual behavior. The truth is, there has never been a time in history when “sex” could be separated from “politics.” What does ATSA have to add to sex, politics, laws, and the courts? More informed public policies.
Jon Brandt, MSW, LICSW
Author’s note: The large number of links embedded in this blog are in lieu of a long list of references, and intended to both provide empirical support for assertions, and offer readers an easy opportunity for more information. Links to court cases are intended to inform readers only about the nature of certain court cases. Links to research or articles are only a sampling of the voluminous information available on the topics herein. I would also like to add that, beyond ATSA, there are innumerable professionals, concerned citizens, and organizations, which have contributed immeasurably to the common quest for informed social policies, safer communities, and better lives. It takes a village. Comments or corrections welcomed.