<This article in the New Yorker> by Rachel Aviv appeared a year and a half ago. It received far less attention than it deserved.
The main title in bold print is "The Science of Sex Abuse". In much smaller type, after the colon, we have the vital bit: "Is it right to imprison people for heinous crimes they have not yet committed?"
Aviv tells the story of a man named John. I am astonished that society has not stood up and shouted in unison, "Oh, my God! let that guy go!"
Here's how it happened. An undercover cop with the handle "Indy-Girl" pretended to be a college sophomore. She found John online and engaged in sexy chat. He boasted he'd had sex with girls aged 10 and 14 -- complete fabrications, but well within the norm for online chat. (Later we find out that his strongest attraction was to girls "hitting puberty". He lost his virginity at age 19 to an adult prostitute. She and his other partners (mostly prostitutes) were all petite with small breasts.) Indy-Girl then said she had a 14-year-old sister who liked older men. He expressed some interest, but also was reluctant. After pestering him repeatedly, the agent Indy-Girl persuaded him to travel for a face-to-face meeting with her and her sister. The article implies that there was no agreement that any sexual activity was going to take place. He brought lacy undergarments with him -- but not condoms or lube. (One can also ask just how harmful and immoral would it be to have sex with an eager 14-year-old who is being chaperoned by her big sister, especially when the big sister has been pushing for the meeting. How much responsibility does the sister bear if this had been real? Would she have faced charges?)
Undercover officers arrested him, he waived his right to a lawyer, and eventually pled guilty to CP possession and meeting a minor for sex -- one can imagine that if he had remained silent things might have gone much better for him.
After serving his sentence of 4.5 years, John was released on probation. When he began using the internet again, he found pornography and then found himself drawn to illegal CP again. His probation officer found some CP images of underage girls and he was sent back to prison for another two years. He admitted he found pornography to be something of an addiction.
The law changed while he was in prison, and now when it was time for release, he had to face the prospect of civil commitment.
Civil commitment has a proper role in society. It is used to hold someone based on their insanity and propensity for violence. Considering one vital case, if a person has killed someone but is incompetent to stand trial due to insanity, it is the only way to protect society from him. But people like John are in no sense insane. Aviv notes that since 1999, the American Psychiatric Association has objected to civil commitment of sex offenders, calling it a perversion of psychiatry for political ends.
Under the civil commitment laws, prisoners who have served their time aren’t released until "a court or a treatment provider concludes that they are no longer dangerous, a risky judgment to make, given the stakes involved in a wrong decision." Headlines and political fallout await the board that lets out a man who commits a sex crime. There is no penalty and no news story at all for holding hundreds of them for years -- except Aviv's widely ignored story.
John is a quirky guy. He cries during interviews, writes notes with fantasies about sex with girls, and admits he's never been able to build a relationship with a woman his age. He notes that he would have trouble telling a lie even if it was to save his own life. He admits there is something wrong with him, but it's not what he's being held for, and what's wrong with him does not pose a danger to society.
The way the normal criminal justice system works is that people are never held because it is likely they will commit a crime -- it is called "preventive detention" and makes freedom-loving people shudder. The system recognizes that people who commit crimes made mistakes and it imprisons them for a while, then releases them, giving them a second chance. An independent judiciary holds to rules of evidence and law even when the public is hungry for blood. (Electing judges is a terrible idea.)
Aviv implies that John is being held indefinitely because of the risk he will actually abuse a child, not that he will look at child pornography again. Thank goodness society does not yet think preventive detention is warranted because someone might look at pictures of abuse. He has never abused a child, and it is far from clear he would have abused the 14-year-old "child" he went to meet.
The justification for holding someone based on CP is the claim that virtually every CP offender also abuses children. This linkage relies on the flawed Butner study. It turns out that others have studied the same question, and found that only some CP offenders do -- perhaps half. An explanation for why the Butner study found the anomalous results it did is that they pressured inmates heavily to confess to abuse of children or face loss of important privileges -- so the inmates made up instances: dozens upon dozens of instances. If only half of CP offenders have committed offenses against children, it is a grave injustice to let the one stand in as a proxy for the other.
When considering fair punishments for pedophiles who break the law, my favorite method is to compare them with others who have committed crimes of comparable severity. Our prisons are already overflowing with urban men of color who have committed only nonviolent crimes. To most liberals, this is a grave injustice. Statistical evidence could easily be produced showing there is a good likelihood that young men of the urban poor will commit a crime. Can we imagine the idea of civil commitment for teen boys who had been caught shoplifting? It is totally at odds with civil liberties.
Civil commitment of pedophiles who might commit a future contact sexual offense is justified only if you think pedophiles are alien and subhuman and not deserving of the rights we grant to all others.
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