April 2014

The Ever-Changing Tide of Sex Crimes

Author: Norm Pattis

“If you build it, they will come,” a voice told Ray Kinsella, played by Kevin Costner, in the movie, Field of Dreams, and it was so. A cornfield was plowed over to make room for a baseball diamond. Soon, magically, the field was filled with legendary baseball players.

I worry that correctional officers and prosecutors took the movie a little too seriously. There are plenty of prison beds to fill. Construct prisons, they say; we will create the crimes necessary to fill them.

We’re in the grip of a moral panic about sex offenses. I call the phenomenon sexoprhrenia. Although we use images of sexuality to entertain ourselves and to sell products of all sorts, from automobiles to toothpaste, we’re nonetheless savage in our punishment of sex offenses. It’s a national addiction, really, a libidinal tidal wave.

There’s a new tsunami heading toward the nation’s courts and prisons. This wave involves female sex offenders. Expect during the next decade to see novel application of old statutes to bring women into the ever-widening net of sex offenders.

We’re all familiar with the so-called “hot for teacher” cases. Van Halen’s song about a young man’s lust for his high school teacher runs through my mind every time I see one of these headlines. However much a romp with teacher might be the fantasy of a hot-blooded teen, most states regard such as an assignation as statutory rape.

Rape is a word connoting violence, and acts of violent rape ought to be prosecuted. But statutory rape is something different. A 15-year-old child cannot lawfully consent to intercourse in most states. They are too young, by operation of statutes defining the age of consent, to make that decision. Thus a 19-year-old and fifteen-year-old heating passion’s sheets face a difficult prosecutorial road: the 19-year-old is, in the eyes of a law, a rapist, no matter how ardent the 15-year-old’s “yes” rang in his ears, or how old the fifteen-year-old might have looked.

In recent decades, prosecutions of older men for statutory rape were common, but prosecuting women for their escapades with teenagers was ignored. I’ve seen more than one judge or prosecutor giggle behind closed doors about the lucky guy who “scored” with his neighbor.
Times are changing.

In part, credit the success of the women’s movement. Early on, rape was regarded as a crime committed by men against women. But true equality suggests that the door to the prison should swing with equal ease for both men and women. There is no principled reason why women should be treated differently than men, if you assume that consensual sex can ever really be a crime.

But what is a crime? The lines separating lawful from unlawful conduct are historical artifices, not written for all time in the heavens.

Consider the history of legislation regarding the age at which a young person can consent to sexual contact. In the early 19th century, the age of consent was typically 10 to 12 years old; in Delaware, the age of consent was seven years old until 1895, following ancient Roman doctrines about the capacity of children. These numbers shock today.
The Women’s Christian Temperance Union led the fight to increase the age of consent in the United States during the late 19th century. The union was concerned that as young women left family farms for urban areas during an era of rapid industrialization, they would be preyed upon by older, lecherous men. Statutes setting the age of consent in the late teens are scarcely older than the automobile.

The age of consent is not the only legal doctrine about sexuality that is a product of recent historical forces. Only recently the law stopped criminalizing sodomy between members of the same sex. Indeed, as you read this, states experiment with the recognition of gay marriage.

Libidinal politics are explosive. Sexuality defines who we are; without it, the species would quite literally fail. These politics are also big business and a thriving source of academic research.

In the next decade or so, I expect to see an explosion in the prosecution of female sex offenders. We are no longer scandalized by homosexuality, and do not, as we did in the 1950s, hospitalize men for their orientation. Despite the furor over immigration reform, and the browning of America—Anglo-Saxons will be a minority in this country for the first time in centuries by the year 2042, if current demographic trends continue—we no longer demonize such immigrant groups as Mexicans as the source of a wicked sexual contagion, as was the sub-theme in the 1936 film, Reefer Madness. (The primary villain in that film was another outgrown fear, marijuana.)

The intellectual groundwork for expanded prosecution of women for sex crimes has already been laid. Scholars now openly debate in their journals whether incest, and pedophilia, aren’t, in fact universal, thus shedding sustained light on the sorts of contact that occurs between mother and child, or between babysitter and ward. In 2007, the Justice Department began to focus on female sex offenders, focusing on prison sexual misconduct, and promising, in a paper it published, to help lay the intellectual foundations for a new area of research. I suspect the day is not too distant in which Dustin Hoffman’s character as played in the The Graduate will be regarded as a victim, and Mrs. Robinson as a coo-coo ca-choo criminal.

The various laws defining sex offenses are broad and have the capacity to categorize a wide array of contact between adults and children as sexual. Combine the interests of a therapeutic state, with aggressive child-welfare workers manning hotlines, and our preoccupation with sexualizing desire and the shape of the world to come emerges as one in which increasing numbers of Americans, this time women, are in prison, on probation, registered as sex offenders, and required to endure expensive treatment.

Not long ago, I represented a school teacher accused of having sex with a 14-year-old boy. She claimed he raped her. She didn’t report the event out of shame. The student surfaced many years after the event, after he himself had been accused of violent crimes, to blame her for his troubles. We succeeded in getting the case dismissed, but only after her life was destroyed. Although the record in this case will never reflect it, there was plenty of talk behind closed doors among the lawyers and judge about whether this case should be prosecuted at all. I used to hum Van Halen’s tune in chambers to torment the prosecutor.

“If the genders were changed, we’d all agree the case should be prosecuted,” the judge once said.
I would be more troubled by a 14-year-old girl’s being intimate with a 25-five-year old man. But I am not sure why that is the case; I can’t give a principled account that the law recognizes about why these men and women should be treated differently. No one can.

So brace yourself for a whole new world of prosecutions: babysitters accused of an unlawful touch, Juliet being prosecuted for her dalliance with a younger Romeo, mothers in prison for the not-so-innocent games they play with their children.

We’ve built the prisons. We have the social science research at our fingertips. Federal prosecutors are gearing up to explain why the law needs to criminalize yet more conduct. And prosecutors and accusers are armed with self-righteous fury in a culture that loves victims. In the name of fairness, we’ll set about criminalizing the conduct of women.

Perhaps in a decade or so we’ll actually stop to count the costs of an ever-expanding criminal code. Yes, there are sexual offenses that should be prosecuted. But ours is an age that takes real pleasure in expanding the libidinal net to include ever more people. We’re crazy about sex, I say. We use it to sell everything. Just don’t color outside the ever-shifting libidinal lines.

Norm Pattis, one of America’s most controversial and successful trial lawyers, is frequently in the national news, representing high-profile criminal defendants, winning multi-million dollar civil rights verdicts, and other high stakes cases. He appears frequently as an expert legal commentator for national media outlets, including Fox, NBC, CNN, ABC, the Today Show, The NY Times and others. A syndicated blogger, popular speaker, and social philosopher, Norm Pattis is based in New England.

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