Monday, April 30, 2012
By Judith Levine
Roger N. Lancaster, Sex Panic and the Punitive State (University of California Press, 2011), 328 pages, $24.95, paperback.
In California Governor Jerry Brown signs a law prohibiting registered sex offenders from offering their homes as polling places. The bill’s sponsor, Republican Assemblyman (and former LAPD officer) Stephen Knight, says the legislation is necessary to protect high-school volunteers and children accompanying their parents on Election Day.
In Vermont a $13.8 million network of twenty-eight communications towers and eight “public safety answering points” is under construction to aid first responders in case of a terrorist attack. Homeland Security, which is funding the project, has granted Vermont—population: 620,000; state crime ranking: forty-nine—more than $90 million since 2001.
In New York a maverick group of psychologists and urban designers are agitating to bring back the old monkey bars and asphalt surfaces of playgrounds, which were abolished because of perceived risks of accidents and lasting psychological trauma. Sixty pages of federal playground regulations now advise, among other precautions, against children wearing drawstring sweatshirts and “mittens connected by strings through the arms.” Write the psychologists: “Paradoxically, our fear of children being harmed by mostly harmless injuries may result in more fearful children and increased levels of psychopathology.”
How are these items—collected at random during one week in 2011—related?
The answers can be found in Roger N. Lancaster’s Sex Panic and the Punitive State, a riveting history and virtuosic analysis of the way America’s thirty-year panic about child sexual abuse has fueled an ever-increasing appetite to “protect, punish, and preempt” crime and has served as the model for the creation of “something resembling a police state” in the United States.
Lancaster, a professor of anthropology and cultural studies at George Mason University, says that in the process the criminal justice ethos has been transformed. Today, “the protection of innocence trumps the presumption of innocence,” the victim’s “rights” to comfort and “closure” elbow out the constitutional rights of the accused or convicted, and a lust for punishment has supplanted a faith in rehabilitation.
Our civil and private institutions have become arms of the police and the vice squad. Public schools have students arrested for what used to be considered childish pranks. Public-housing authorities conduct unwarranted searches and evict entire families for the legal infractions of one member. Employee background checks, drug testing of food stamp recipients, voter ID requirements—such practices enact what Lancaster calls the “preemptive paranoid approach” to governance. Even art institutions, once redoubts of calm in a phobic world, now routinely warn audiences that an exhibition may be “inappropriate” for children.
Communities that tolerated a measure of deviance in the spirit of democracy and individual freedom now bond in the solidarity of paranoia and vengeance. The nation girds itself against alien invaders on its borders and at its airports.
And over it all, superimposed on the Stars and Stripes since 9/11, floats the image of America—not just its children—as vulnerable, victimized, and innocent.
The American carceral state imprisons an unprecedented number of its citizens: with 5 percent of the world’s people, the United States now has 25 percent of the world’s prisoners, leading all other nations in both percentage and raw numbers. On the other side of the bars, one in four-to-five American workers is engaged in private security or other “guard labor.” This “penal Keynsianism,” comments Lancaster, “solves two economic problems: it creates jobs while guarding the unemployed.”
Sex offenders constitute a relatively small proportion of people under the thumb of the criminal justice system. But the harshness of their punishment and the disregard of their rights lie outside the Pale even in an extraordinarily harsh system. And in a nation famous for second chances, sex offenders are uniquely bereft of the opportunity to discharge their debt to society, repent of their transgressions, and start anew.
Inmates convicted of offenses such as consensual sex with a minor (statutory rape) or possession of child pornography (which can be pictures of teenagers under eighteen) may serve terms longer than those who have assaulted or even killed a child. At the end of their sentences, sex offenders may be locked up in psychiatric civil commitment, based on psychologists’ inconsistent and unscientific predictions of future offense, with no certain date of release.
There are currently more than 705,000 people on sex offender registries in the United States, with more added weekly. These registrants include everyone from sadistic rapists to people who have urinated twice on a tree; the information on the registries makes it hard to distinguish one from the other. Almost ritually, every session both Republican and Democratic legislators enact tougher sentences and more diabolical restrictions on the residency, work, and freedom of movement of former offenders. For obvious political reasons, repeal is never on the agenda.
Violation of these stringent terms is practically inevitable, and a large number, perhaps the majority, of sex offenders who end up back in prison do so for minor infractions like failing to report the purchase of a car. Whereas parole and probation once aimed to smooth the transition from inmate to civilian, these policies do the opposite: they commonly result in homelessness and joblessness, political disenfranchisement, exclusion from higher education and military service, and even from houses of worship.
Former sex offenders and their families live under constant harassment and threat of vigilante violence; some have been murdered. Lancaster notes that during Hurricane Katrina, when certain New Orleanians were helped to evacuate and even the poorest were at least warehoused, only sex offenders were left to fend for themselves. “The classification of sex offenders as unfit for rescue” along with the special laws driving them from the community “reenact the logic of ‘social death,’” he says. Social death is the term Orlando Patterson used to describe slavery.
Civil libertarians have challenged these policies as double jeopardy, preventive detention, and a violation of the centuries-old principle of habeas corpus. But the courts have consistently upheld them as administrative, not punitive, measures—therefore constitutional. The federal judiciary, including the Supreme Court, appears to consider no punishment of a sex offender excessively cruel or unusual.
A decade’s worth of research has found that such restrictions enhance public safely not a whit. But, as Lancaster shows, “preventive governance” is not a rational response to actual crime, which has been declining for decades. In fact, contrary to police claims and public perception—stoked by such shows as Law & Order SVU and To Catch a Predator—sex offenders have extraordinarily low rates of recidivism for sexual offenses. Advocates of the registries attribute the low rates, and drops in crime generally, to increased incarceration and post-prison surveillance. Opponents claim that the restrictions are so stressful that registrants are more likely to offend again. Recent research challenges both camps: a careful analysis of several data sets by Amanda Y. Agan at the University of Chicago finds that sex offender registration neither increases nor decreases the likelihood of reoffense. The article is subtitled “Fear Without Function?”1
But data have no effect. Indeed, the model of sex offender registries has only spread to other areas of the law. Several states have proposed or set up public registries of people convicted of DWI and domestic violence, and, in Florida, of all released prisoners—all to minimize “risk.”
In an era where parents are afraid to let their children play outside—or fortify them with helmets and cell phones whenever they do—“risk assessment” is a growing discipline, which looks like science. It is in fact symbolic: the actuarial encoding of hyperbolic public apprehension, ever on the uptrend. Phil Taylor, a former Texas-certified sex offender therapist, told me that “sex offender ‘management’ is done like business management”: the state calculates its potential profits (including political ones) and losses and structures its policing bureaucracies accordingly. Never mind that what shows up in the debit column are the civil and human rights of people once called U.S. citizens.
Among this country’s unprecedented legions of inmates and parolees, people of color are vastly disproportionate. For example, the percentage of young African-American men in prison is higher than it was in the Jim Crow South, when prisoners were leased out as slave labor.
Yet sex offenders are white—not only on the prison rolls but also in the public imagination. Why is this so and how did it come to be? It is a puzzle that critics of the penal state have not solved—and rarely approach. The facts are simply too hard to square with the usually correct view that the carceral state is the latest iteration of a systemic repression of black and brown people.
So this is probably the most valuable and original contribution of Sex Panic: Lancaster’s treatment of the “racing” and “queering” of the sex offender and its effect on what now masquerades as civic solidarity.
Since the start of U.S. history, the myth of the black (and Native American) rapist of white women has justified slavery, lynching, and the hyper-policing of communities of color; Lancaster glosses this well-known portion of the brutal story. But it is the emotions and ideologies, and resultant laws and practices, from the mid-twentieth century to the present that he maps with particular subtlety, moving from lynch laws—used against black men accused of raping white women—to “sexual psychopath” laws, which “de-raced” (or, rather, “re-raced,” as white) the molester.
From the Depression to the McCarthy Era, the image of the child-molester had morphed from an unemployed man plagued by feelings of impaired masculinity to a homosexual, naturally hungry for young flesh, his deviance portrayed as both congenital and contagious. The child molester of the 1950s has been supplanted by the “pedophile,” a word that is now used indiscriminately for people who sexually desire prepubescent children and those (like the entire advertising industry, you might say, and by extension, the rest of us) who find teenagers sexy. Although the child molester is no longer explicitly described as homosexual, homosexuality makes a suspect person even more suspect. In fact, the Static-99, widely used to assess risk of sex-crime reoffense, lists “any male victims” as a risk factor. Still, as homosexuality is normalized, today’s “pedophile” is thrust, by gay rights and straight sexual freedom groups alike, even further to the margins of queerness. Lancaster calls it the “offloading of queerness.”
What happened to the bestial black male whose image shadowed white America’s nightmares? The 1960s law-and-order mania resurrected him for a time, and he appeared again in the 1980s, embodied with particular viciousness in the five black teenagers convicted—falsely, it turned out—of raping the Central Park jogger in 1989. Interestingly the term predator—coined in that decade to describe a species of remorseless black teenage criminals—migrated to the discourse of sexual terror, as the figure of the inscrutable, naturally evil black rapist shifted sideways to make room for the incurably sick, assumedly white, child-desiring queer.
Of course racism is not vanquished; whiteness is doing its work. “Shall we say, then, that in a society committed both to a war on crime (with its mass incarceration of black men) and to ridding itself of racism (through formal adherence to a regime of civil rights) the feared figure of the white pedophile is necessary?” Lancaster writes. “Perhaps part of the psychic work he performs is to absolve the guilty conscience of racism at a time when so many other fears are focused on the black gangbanger and brown border menace.”
The child molester is real; he does harm, Lancaster concedes. But so monstrous is he in America’s imagination that he must be understood as symbolic—and, by now, central to the nation’s understanding of its moral self. As the crime scene moves from the inner city to the suburb, from the “pathological” female-headed black family of the 1965 Moynihan Report to the white, heterosexual, middle-class family and from the purview of the welfare office and the juvenile detention center to the privatized surveillance of the PTA and the neighborhood watch, “overt references to the racial origins of [national] norms can be progressively erased,” Lancaster writes.
“Whiteness and straightness may not even be the right words anymore for the type of rectitude that is staged in moral panic.” To secure a place in the idealized American moral community—even in the radically dehumanized precincts of the supermax prison—all you need to do is bash a pervert.
This moral panic has been going on for nearly a century, interrupted by one brief decade. It is protean: in the last three decades alone, it has metamorphosed from outsized estimates of incest to belief in covens of Satanic abusers to the government’s claim of a massive global traffic in child porn—which can be neither substantiated nor refuted, since the public and the press are prohibited from viewing the images.
And, while false accusations of garden-variety child abuse continue unabated, the popular suspicion of adult malevolence toward children has spilled beyond sex. A young mother whose breast milk is insufficient is charged for the death of her starved baby. A father whose children are consumed in a fire is executed for their arson-murder.
Meanwhile, as Lancaster shows, the stain of “sex crime” is spreading into every discourse of danger. In some states, drunk drivers have been renamed “abusive” drivers. On the arm of a prisoner in Abu Ghraib, the world “RAPEIST” [sic] was scrawled in magic marker. The federal government’s tentacles of surveillance—Homeland Security and Immigrations & Customs Enforcement, or ICE—reach equally toward “terrorists,” illegal “aliens,” and men who masturbate to images of 15-year-old boys. “Victims of Human Trafficking”—largely defined as coerced prostitution, though forced domestic and industrial labor are far more common—are welcomed at the borders while economic refugees and political torture survivors are turned away.
It is not only the repressive right that got us to this juncture. The left and feminism have done their part, too. Lancaster points out that the left’s “fixation on injury” is balanced in more expansive times by a politics of liberation. But these are not expansive times. Even social service and economic justice advocates who understand the systemic causes of people’s troubles are nonetheless hunkered down defending the statutory protection of favored constituencies defined by harm. Mainstream feminists, obsessed with sexual victimhood, have formed tight alliances with moral conservatives and the paternalistic and racist forces of law and order (anti-porn, anti-prostitution feminists can be thanked for those distortions in the granting of refugee status).
Given the feeling of scarcity all around, perhaps it is not surprising that progressives have not critiqued the industry of support for crime victims—“a distorted little welfare state in the middle of savage capitalism”—while social services are slashed for everyone else.
Why should progressives have sympathy for these devils? Some sex offenders have committed heinous crimes. But so have the people on death row on whose behalf The Nation editorializes and the Quakers vigil. Even the guilty deserve justice.
Roger Lancaster was moved to write Sex Panic when his friend, a gay teacher, was entangled in a false accusation of sexual abuse. One item of evidence: he invited Lancaster, who is also gay, along on a school trip. I sometimes think the panic will end only when every American knows someone whose life has been destroyed by it.
Perhaps this book will hasten that day. With reasoned urgency and stirring intelligence Sex Panic makes palpable the injury this hysteria is inflicting, not only on people accused of sex crimes, but on democracy and freedom themselves.
- Amanda Y. Agan, “Sex Offender Registries: Fear without Function?” Journal of Law and Economics 54:1 (2011): 207–39.
Update: Ex cop faces sex charges involving 20 women
WINNIPEG - The fate of a former Winnipeg police officer is now in the hands of a jury.
Richard Dow is accused of sexually assaulting an 18-year-old woman during a photo shoot at his home in 2000.
Dow ran a side modelling business, along with working as an officer. He has since retired from the force.
The jury heard closing arguments in the case on April 26 and will begin deliberations Monday.
Dow has pleaded not guilty in the case.
NJ - Former police chief (Robert Holmes), accused in sex assault of girl 7 years ago, has yet to appear in court
MARLBORO — Seven years after he allegedly engaged in sexual acts with a 12-year-old girl, the former police chief of Marlboro has yet to make an appearance in court, according to a report on Marlboro Patch.
In July 2009, Robert Holmes was indicted on seven counts of aggravated sexual assault after the county's investigation found he allegedly engaged in sexual acts with the girl between 2005 and 2007.
At the time, prosecutors said Holmes had provided the girl with alcohol and assaulted her at his home.The girl was between the ages of 12 and 14 at the time.
The website quoted a representative from the Monmouth County Prosecutor's Office as saying the case was unresolved and "there is nothing new to report."
Holmes retired less than a year before the indictment was handed up by a Monmouth County grand jury. He is currently collecting a $106,010 per year pension. His final salary for the purposes of calculating his pension was $150,023.
- Ex-NJ police chief indicted on sex assault charge (07/08/2009)
By Molly A.K. Connors
Ordinance declared unconstitutional
In a move that could have implications across New Hampshire, the city of Franklin is appealing a recent court decision that said its ordinance limiting where convicted sex offenders could live was unconstitutional.
Merrimack County Superior Court Judge Larry Smukler ruled in January that a Franklin measure barring registered sex offenders from living within 2,500 feet of a school violated their right to equal protection under the law.
In his decision, Smukler said that when the city council adopted the rule in 2007, the body failed to show that the restriction would actually protect children.
Since then, the city has filed paperwork with the New Hampshire Supreme Court saying it intends to appeal, and though the city currently cannot enforce the measure, Mayor Ken Merrifield said officials stand by their belief that convicted sex offenders should not live within roughly a half mile of playgrounds, athletic fields, public beaches, child-care facilities and municipal ski areas.
- So your belief should not trump facts. If someone is intent on harming a child at any of these places, which is very rare, all they have to do is walk or drive in their care and commit a crime, so it doesn't really protect anybody.
"We thought it was good public policy, we felt that it would work at least to some degree," Merrifield said.
The nuanced legal arguments will not become clear until early next month after Franklin's attorney files a detailed brief with the state Supreme Court and the New Hampshire Civil Liberties Union, which is representing the registered sex offender who brought the suit, responds.
But a notice of appeal filed in February shows the city is likely to ask the court to review Smukler's ruling that the ordinance violated residents' rights to equal protection and his assertion that the city council failed to present sufficient evidence the ordinance would protect children.
"The judge seemed to conclude that we didn't do enough homework, therefore it was invalid," Merrifield said.
Barbara Keshen, the staff attorney with the New Hampshire Civil Liberties Union who argued the case, said she welcomed the challenge.
"I want the Supreme Court to weigh in on it," she said. "Even if they rule only that Franklin's (ordinance) is unconstitutional, I think that would be sufficient cause for towns to be very cautious before they tried to enact these ordinances."
Franklin's city council unanimously adopted the ordinance, which also prevented landlords from renting to registered sex offenders, in May 2007.
- And this is basically forcing these ex-offenders to live on the streets homeless.
Three years later, [name withheld], 66, moved to Franklin from Massachusetts. About 27 years ago, [name withheld] had been convicted of sexually assaulting a child in Middlesex County, Mass., and was incarcerated for three years, according to Smukler's ruling.
There is no evidence that [name withheld] has ever failed to comply with the requirement that he register as a sex offender for the rest of his life, Smukler wrote.
In September 2010, when [name withheld] registered as a sex offender with the Franklin police, he was told he had to give up his apartment within 30 days because it was within the prohibited 2,500-foot radius.
The move would have compromised the $1,000 deposit [name withheld], who is unemployed, put down. A few weeks later, he sued.
"People have a constitutional right to live where they want to in this country, and the government can't simply restrict that right without showing a compelling reason why that right needs to be restricted," Keshen said. "So it's the court's job to make that determination."
In his ruling, Smukler wrote that the city failed to show its infringement on a person's right to live where he or she wants meets "an important government interest," which in this case is the protection of children.
Smukler also noted that - according to city council meeting minutes - one city councilor who voted for the measure, Jeff Rabinowitz, said he had "not seen one single piece of evidence that the ordinance will protect children."
It is a point Merrifield still disputes.
"It seems to me that public policy, to some degree, you're going to rely on common sense and your own wisdom," Merrifield said.
He said the city council might also consider amending its current law to try to make it comply with Smukler's ruling.
"There might be other strategies," Merrifield said.
An ordinance similar to Franklin's has already been struck down in Dover, and the court's action could impact those still on the books in Tilton, Northfield and Boscawen, Keshen said.
"It really depends on the questions that are posed to them on appeal," she said.
The goal, she said, is not to protect sex offenders but to protect children. When the lists of registered sex offenders become thousands of names long, it becomes impractical for parents and officials to identify those who are a true threat, she said. And, she argued, if the restrictions on the sex offenders are too onerous, they can simply go underground and be impossible to find.
"Towns ought to be able to look at the history of these regulations and realize that they don't work," Keshen said. "They're not sound public policy."