Sunday, November 1, 2009


An editorial in the ‘Boston Globe’ today is one of those tortured pieces that simultaneously signals the paper’s efforts to be objective (it’s a forgotten skill there), while backing away from a stampede it helped to create, without admitting either its role in creating the stampede or that it was indeed a stampede in the first place, and simultaneously leaving the door open to the defense that ‘whatever’ it has turned out to be it was meant well and fueled by only the very best of intentions.

It’s stuff like this that makes learning to read in the Soviet mode (read what isn’t there) worth it.
The background: a little under two weeks ago a gentleman with a long string of exposing himself and other similar crimes tried to rape a woman in a bathroom at a local hospital; the gentleman is described as 40 years old and ‘homeless’.

As – alas – should be clear as a bell nowadays, the ‘homeless’ tag is not so much a useful descriptor as a warning that anything from genuine mental illness to addiction (and if chronic, then with its own train of consequences psychologically and physically). Whatever this gentleman may be, a pure and simple ‘sex offender’ (if any such creature exists) he most certainly is not.

He had been recently released, having completed a prison sentence. The prosecutors had wanted to have him committed civilly, but in that State (Massachusetts) an individual facing such a proceeding may choose a judge or a jury to make the legal determination. The man chose a judge, and that judge did not consider that the man qualified for civil commitment under the relevant sex-offense legislation.

As it turned out, the man went out and was soon caught in the current situation. A District Attorney – at a moment in the State’s politics when the current State Attorney General is looking to get herself elected to the US Senate – quickly made public a proposal to amend legislation so that juries – rather than judges – would do the deciding. This is the way it is, the paper faithfully barks, “in other civil matters”.

Naturally, the practiced eye notices our old nemesis, the civil-not-criminal classification of sex-offense laws, and especially the commitment regimes. As soon as you see this, you are almost required to suspect either actual ignorance or some type of skullduggery in the form of ulterior motive.

And from what we know now of the political circumstances in New Jersey in 1994 when Megan’s Law was so indecorously and hastily rammed through the legislature by a Speaker looking to be elected to the US Senate (and a zealous Chief Justice, and prosecutors looking to distract attention from a fatal plea-bargain that they had allowed), we know that ‘politics’ has played a stunning – perhaps primary – role in all sex-offense legislating.

The ‘Globe’ can’t see what the fuss is about. Juries, it opines, in one of the State’s largest counties have been in the past decade “almost twice as likely as judges to commit offenders for periods that can last anywhere from one day to life”. You are welcome to go digging and tote up the number who have been committed for “one day”.

But lest it appear to be simply a shill for prosecutorial dampdreams of easy convictions, the paper notes immediately that “in a quarter of the cases decided by jury, the convicted sex offender was found to be no longer sexually dangerous”. (So, he only had to Register and go onto the Internet).

This very line of thought is tinged with conceptual incoherence. The entire gist of the legislative Findings that ground this sex-offense law in the first place is that a sex-offender is always potentially dangerous in a sexual way. That’s why there are Registries and Notification regimes in the first place.

On top of that, then, the civil commitment scheme is not so much an effort to deal with mental illness (after all, the offender is for all practical purposes to be considered sex-crazed to begin with) as it is a handy second-option to get rid of sex-offenders under color of law and – so sensitively – therapy.

There is no ‘sex offense’ diagnosis in the Manuals, and while the legislation (though not the professional psychiatric research and therapy community) admits ‘mental abnormality’ (a journalistic but not professional diagnostic term) and any sort of ‘personality disorder’, yet ‘personality disorder’ is one of the lowest-grade and almost hopelessly general and non-specific diagnostic categories. So much so that there is even a ‘personality-disorder, not otherwise specified’ to give any enterprising ‘therapist’ a hook for getting a reimbursable diagnosis into the main computer. So if your ‘patient’ can’t even conceivably be shoe-horned into one of the already ‘specific’ personality-disorder categories, you can go and toss him into the ‘not otherwise specified’ basket for the money-shot, billable diagnostic numerator category that will open the insurer’s spigot. It is possible that fully half the population, conservatively, qualifies as having some sort of ‘mental abnormality’ or ‘personality disorder’.

Clearly, the prosecutors in this matter are looking to get around the judges. And given some of the legal ‘thinking’ we’ve seen in some of these SO cases, you have to figure that something’s up: are the judges starting to back off from the SO mania? Or do the judges themselves want to get out from under the burden of having to protect SOs’ rights and would prefer a jury to take on the responsibility?

And perhaps in this case, while the gentleman in question may have qualified for some sort of civil commitment on the basis of outright insanity, he did not qualify for civil commitment under the sex-offense rubric, so the judge felt compelled by justice and law to let him go. Which perhaps indicates that the prosecutors should have gone for a garden-variety ‘insanity’ commitment rather than the trendier ‘sex offense’ commitment.

Of course, the gentleman may simply be a ‘career’ type of offender, in which case he should be subject to increasingly long penalties for subsequent convictions.

But that’s the kicker: sex-offense law, on top of its hugely dubious Registration-Notification regime, is also an exercise in ‘preventive’ law: the idea is to prevent the crime, not simply to convict the perpetrator afterwards.

As I have said in prior Posts, this is a recipe for a police-state, and a verrrrry invasive one. Think of the book-film ‘Minority Report’ where a special police unit arrests persons before they commit a crime, and perhaps before the persons conceive of the idea of committing the crime. Of course, that requires the mysterious fortune-telling aliens who work for the police; in their absence, sex-offense law relies upon the legislative Findings about certifiable and incorrigible monstrousness … not as dramatic as the fortune-telling alien life-forms, but the pols tried to compensate for that lack with the most vivid and exaggerated language and selectively chosen factoids in their Findings.

But there’s another straw in the wind in the text of the editorial. The DA wants the juries dealt into the game because “it’s a reasonable proposal that could help gain broader community acceptance of verdicts in an explosive area of the law”.


So there’s some sort of concern among the elites that there isn’t (any longer, at least) a broad community acceptance of SO verdicts? Is this phrase an indicator that the elites are now worried that folks aren’t taking SO convictions seriously?

Surely, this would be – for the elites up to their elbows in the SO mania – a verrrry disturbing trend. After all, if the SO mania stampede starts to slow down, then the dust will start to settle, folks will start doing some thinking again, and they will notice – like Tolkien’s King Theoden as Grima Wormtongue’s spell wears off – that they have been turned into “a beast, crawling around on all fours”. And that, from an elite career point of view, wouldn’t be good – getting chased out by a very angry former spell-bound party now back in possession of his senses and royally pissed. Thus The People if they come to realize they have been cast under a spell and manipulated.

And in case you missed the phrase the first time around, the paper comes back to it later on in the editorial: While nobody knows if a jury too might not have freed this particular offender rather than civilly commit him, “it is certain that the public would be more understanding of the decision to free him had it been rendered by a group of fellow citizens”.

Well that’s a nice thought but I don’t see at all where it is “certain”. And in a mania situation – which is precisely the agitated and emotionally roiled state of affairs that the pols and the press created – it is precisely the judicial Branch that the Framers expected to stand tall against the law-squashing passions of the moment.

So are the prosecutors looking for more ‘play’ or are the judges looking to get off the hook of defending the rights of SOs? Or do prosecutors and/or judges realize that the SO mania is running out of steam, and the smoky fog that used to cover the true shape of this monstrosity is starting to clear away and they want to start putting some distance between themselves and the ‘mistakes that were made’ (ach!)?

After all, the editorial has termed the area of sex-offense law “explosive” – and that not only strikes a note that I have rarely heard, but is so vivid and over-the-top that it almost seems to indicate a genuine agitation … maybe even a fear. It’s a stunning admission – however indirect or unremarked – for a major paper to make; for so long SO law has been passed off as just a particularly newsworthy bit of ‘progress’ in the development of American law but otherwise it ain’t but a thang. Now suddenly this is an “explosive area of the law”. Y’a think? It’s been blowing up fundamental Constitutional integrity for almost 20 years – yeah, I’d say it was “explosive” and has been all along.

But as I entitled this Post, it’s a step forward. The editorial, and I expect with information provided by its friends in the DA’s office, goes out of its way to paint the DAs and even the juries in a reasonable light: While juries have been “twice as likely to commit” as judges in the past 10 years, “they are not acting reflexively either” because “in a quarter of the cases decided by jury, the convicted sex-offender was found to be no longer sexually dangerous” (except that he’s a sex-offender, but go figure).

Also “prosecutors aren’t going overboard to confine sex-offenders who have served out their sentences … since 2004 district attorneys have sought commitment petitions for just 515 of 8,700 sex criminals who completed their sentences … Of that number only 253 went to trial.” What happened to the other 262 of that 515?

And immediately thereafter: “It’s not a witch hunt. It’s an attempt to deal with the worst of convicted sex offenders”. The fact that the editorial would even volunteer that “witch hunt” (and on top of “explosive”!) is curious indeed: for sooo long the media didn’t even want the phrase ‘witch hunt’ associated with sex-offenses; America of the 1990s was far too enlightened and progressive to ever indulge in any of that stuff (and of course, to the secular elites of the recent revolutions, such irrational frakkery could only take place under the influence of ‘religion’; secular elites – by double definition – didn’t cause stampedes like that … yah).

“This is no small matter. Community acceptance of verdicts is a pillar of the legal system”. Again, the editorial volunteers this queasy non-admission: that it seems to think that at this point there isn’t so much ‘community acceptance’ of sex-offense verdicts. This is more than a straw in the wind; something has the elites riled and worried.* They’re trying to defend their actions without admitting that they’ve actually done anything wrong or frakked anything up (how Beltway!).

So this is a step forward, but I’m still not sure just why it’s being taken, so I’m not popping any champagne corks.

But I will note this, in conclusion. The editorial notes that “this is a challenging area in which judges and juries are not asked to determine what, if anything, someone did, but what they are likely to do in the future”. Again, this is preventive law – and will probably wind up causing as much frakkery as its younger (on the American scene) sibling, preventive war (and can you say ‘Iraq War’?). We shall wind up occupying ourselves as a police state the same way we are now occupying Iraq and trying to get control of Afghanistan.

But then it continues: “the law already recognizes the uniquely compulsive nature of sex crimes”.

Welllllll now. ‘Sex’ is certainly hard-wired into the human biology; Evolution has planned for the species to reproduce itself, after all.

But is it “compulsive” such that an individual has no control over it? This is a thorny enough question as it is.

It’s rendered even more so when you consider that for the past four decades or so it has been precisely a hallmark of ‘liberation’ that ‘sex’ is good and nobody can tell you when you can and when you can’t, and that ‘young women’ – as they are called – can do whatever they want and nobody – parents, ‘traditions’, or certainly ‘men’ – can tell them what they can or can’t do.

Surely, a civilization that spent a great deal of time and energy trying to shape the latent force of human sexual desire in order to clear a bit of space for humans to conduct their lives in pursuit of their higher and less primal potentials was doing something right. The fact that it has all been ‘deconstructed’ – and in the name of ‘liberation’! – in the past few decades has meant that huge numbers of youth are now grossly undertrained in the arts of controlling or usefully channeling their sexual capacities.

But this is a different type of ‘compulsion’ altogether. It’s a compulsion that’s not built into the sexual drive (persistent as it is) but rather is the result of an individual not being prepared , educated, or trained in the mastery of the sexual potential – and so the individual ‘feels’ that the sexual potential is ‘compulsive’ simply because the individual has no inkling of how to control it.

And – as has happened in this sex-offense mania – the “uniquely compulsive” nature is apparently specific to males, according to the theory. And I will certainly agree that in terms of maximizing reproductive potential, the male is sent into this life by Evolution with a hard-wired urge to propagate. But that is not a certificate of incorrigible monstrous danger so much as it is a clear challenge to civilization to train the male in the responsible use of his potentials. Which was what civilization had been doing for quite some time.

It was fashionable – perhaps still is – to assert that civilization was doing a poor job of it. But even if that were true it would be a signal flag for an improvement in civilization’s methods of education, not for a ‘deconstruction’ of any boundaries, followed by the invasive deployment of the criminal law to brand ‘sex offenders’ (which now comprise about one in every 230 males in the country).

So this “uniquely compulsive nature of sex crimes” is a hugely fraught, and not altogether accurate, assertion.

We had seen the conceptual problems with that approach in the Poritz Opinion, where the Findings ascribed an “incorrigible” aspect to sex-crimes (and, without having to say it, to males).
So, again, things are happening in matters sex-offensual. And any improvement should be encouraged. But it must not be forgotten that this entire sex-offense mania – in the content of its ideas and in the methods of its implementation – is fundamentally flawed. And poses – in its failures even more than in its ‘successes’ – a grave threat to democratic politics and to the foundations and structure of Our Constitutional Republic.

As perhaps now we will see more and more elites trying to either back away from it or ‘tweak’ it, we cannot forget that this entire thing is a plague and no amount of tweaking or fine-tuning will turn it into ‘progress’.


*Interestingly, I noticed the same sort of dynamic this past week in another context, and Posted about it on my other site here.

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