American sex laws are the most irrational and unenforceable among
all advanced nations. Certainly some-well intentioned people may
think ours are more decent, or more in keeping with the Judeo-Christian
ethic, or that we don’t want to be as “immoral”
as the Swedes or Germans or British. OK, look at our rate of divorce.
Of violent rape. Of single teenage mothers. This is moral? Not only
are our laws unenforceable and self-defeating, they drain away money
and energy that could be better spent in dealing with our crime
problems.
About This “Jail Bait” Problem:
Even as I’m writing this, there’s an uproar taking
place in a neighboring state, Wisconsin, regarding the trial and
conviction of an 18-year-old boy who had impregnated his 15-year-old
girlfriend. In that state, so far as sex laws are concerned, anyone
under 18 is a child, period, and anyone 18 or older is an adult,
period. The young man took full responsibility for the situation
and expressed a desire to marry her and support his family. The
couple had the approval of both sets of parents.
But an overzealous district attorney insisted on prosecuting, and
the boy was prohibited from communicating with the girl. Technically,
he was guilty of “statutory rape.” Members of the jury
said publicly they thought the law was wrong, but as it was written
felt they had to vote for conviction. The boy was found guilty,
and sentenced to probation instead of prison by an understanding
judge, and given permission to see the girlfriend again. But now
he has a felony record that will follow him to the grave unless
the governor or state legislature intervenes. And, he must register
as a “sex offender” wherever he lives.
Ironically, just across the line in Illinois, his sexual relationship
with the girl would not have been felonious, although it would have
qualified as a misdemeanor, because his age was within five years
of hers. This introduces at least a measure of reason into the issue.
But prosecutorial fanaticism doesn’t end at the state line.
Here in Illinois, authorities waged a lengthy and costly prosecution
of former congressman Mel Reynolds, for the crime of having engaged
in sex with an admittedly experienced and willing 16-year-old campaign
worker. It was widely believed that Reynolds was actually prosecuted
more for being a powerful, independent-minded black than for where
he unzipped his fly. Just to be sure he didn’t get off easily,
other charges were later brought, suggesting that he had more trouble
keeping his hands out of the cookie jar than out of a young girl’s
underwear. Although the legitimacy of those charges was highly questionable
at best, not many objected to Reynolds being prosecuted for alleged
corruption; stealing taxpayers money just isn’t kosher. On
the other hand, the megabucks that were spent pursuing the sex charges
are just as gone as if they’d been stolen. So are all the
dollars spent across the nation prosecuting similar “crimes”
and incarcerating or probationing their perpetrators.
A couple of states away, in Michigan, Reynolds couldn’t have
been prosecuted for the 16-year-old: That’s the age of consent
there. So it’s not a crime for an adult to have a sex partner
who has barely reached sweet sixteen. But that same adult could
go to prison for showing that same sex partner a pornographic picture!
So if an adult were having sex with a willing 16-year-old he or
she should be careful to turn all the mirrors to the wall. In Lafayette,
Louisiana, where I lived briefly, there was a joke that the person
who laid out the town must have been drunk for six months before
drawing the first line. Sometimes our sex laws are in the same category:
Someone would have to be drunk for six months before writing the
first statute.
Back to Michigan's 16-year age of consent. There's been a push
to raise to 18 the age at which it's legal for a young person to
have sex, and a survey shows that the majority of residents think
18 is plenty young enough . The same survey shows, however, that
an even greater majority believe such a law wouldn't work, and the
American Civil Liberties Union has pointed out, quite logically,
that the form of the question could easily distort true public sentiment
on the issue. It's one thing to say (hypothetically) "the law
should not condone sex by young teenagers." It would be something
else altogether to agree with a statement such as "if my child
had a sexual encounter with a consenting 17-year-old (or 16- or
15-year-old), he or she should be arrested as a criminal, face a
possible prison sentence, and carry a felony conviction plus sex-offender
label for life."
You see, most of these laws date back to Victorian times or earlier,
when “losing” her virginity meant a girl was “ruined,”
when a woman under the age of majority was assumed to have no decision-making
capability. It was also when the double-standard applied big time!
Girls were assumed to be sweet, innocent, and sexually ignorant,
and all but the lowest class female was supposed to be incapable
of experiencing sexual desire. Boys, on the other hand, were presumably
knowledgable, with a streak of sexual predatoriness. To further
complicate matters, the biggest hope for a family to improve its
social and financial state was for one of the daughters to “marry
up.” (Sons were not nearly so useful for this purpose! But
they were handy for plowing the field or helping in the shop.) So
deflowering a damsel might be akin to tearing up someone’s
winning lottery ticket. In other words, a crime.
For all of that era’s public prudishness, a cynic could
say that the typical marriage of the day really amounted to prostitution
under contract, with a clergyman playing the role of pimp!
Although not addressing the issue of under-age sex partners specifically,
Christina Tchen makes cites some facts, in her article "Rape
reform and statutory consent defense (2),"
that appear to support the "property rights" explanation
of these moralistic laws. When ancient laws were codified, rape
of a virgin betrothed to another man was treated as a very serious
crime, subject to death by stoning. Raping an unbetrothed virgin,
however, was treated as a minor offense, usually punished by an
order to marry her and pay a fine to her father. In other words,
it was a property crime by one man against another.
Things have changed substantially in American civilization. While
feminists can correctly point out that there’s still room
for improvement, generally speaking women are recognized as having
sexual feelings and needs and, even more important, as being capable
of thinking for themselves. Sexual ignorance is not considered a
virtue. While double standards still exist, most don’t play
as well nowadays: We tend less to think of the sexually active boy
as a wordly stud and his female counterpart as damaged merchandise
at best.
OK, time for a reality check. Like most important issues this one
is not all black or all white. Yes, there are people who highly
value virginity, for both sexes, but I believe most of them recognize
that this is a moral choice, not to be mandated by law. And yes,
many boys are willing to use almost any ploy to “score.”
(If you cared about me you’d do it...if you get pregnant I’ll
marry you...what’s wrong, are you a lesbian or something...ad
infinitum.) And many girls enter sexual relationships out of a need
for acceptance rather than from desire. In my clinical practice
I’ve heard plenty of this, but I’ve met more teenage
girls who experienced a strong sexual desire, some of whom were
even eager to begin sexual activities before the boy was willing
or able to propose anything that couldn’t be done with all
four feet on the floor. It’s an insult to the female half
of our species to assume that such girls are less capable of competent
decision making than boys near their own age.
In case you believe I’m employing my own double standard
here, let me add that some girls are also capable of unscrupulous
sexual behavior. A girl may pretend to be pregnant or lie about
using birth control in order to actually become pregnant, in the
hope of trapping a husband. Perhaps you've known a girl who successfully
maintains a team of boyfriends, each willing to do almost
anything for her. Often the trick used is convincing each boy that
all the other relationships are non-sexual, and that he is
the only guy she'd ever dream of "doing it" with.
I knew of one charade successfully pulled off by a 15-year-old
girl, a rather bright and pretty if somewhat unscrupulous young
woman. A good looking, morally conservative, and painfully shy young
man about her own age felt extremely flattered when she openly expressed
interest in him, and suggested they take in a a movie at the local
double drive-in. Her parents had no objection as he was obviously
"safe." The drive-in date was repeated frequently, and
each one was a major thrill for the boy, partly because it always
involved an interlude of very heavy petting. Obviously aroused sexually,
she would then announce "I'd better take a walk. There's probably
a long line for the ladies' room as usual, but I'll be back."
But it wasn't the ladies room she visited: It was her older lover
in his van in theater number two, i.e., the other side of the screen.
True, she was usually cooled off by the time she returned to the
"boyfriend," but it wasn't from the fresh air!
So neither boys nor girls, have a monopoly on deceit or naivete.
Nor does either variety of teenagers have a monopoly on good intentions
and the use of reason.
I believe that the majority of young people take parental, societal,
and religious mores into account, but make their own rules and standards
for sex. I also recognize that many if not most of them get some
emotional bruises along the way. Those same bumps and bruises might
well occur regardless of the age at which sexual activity begins.
It would be better if all people, of all ages, made responsible
decisions about sex, with full consideration for the well being
of their partner or partners, and it’s sad that this doesn’t
happen. But as I've said, in my experience, most people see these
as moral, not criminal, issues. If anything, many of these laws
as written are counter-productive.
When you tell a sexually excited teenage boy that the girl next
to him in the back seat, glowing with a sexual flush from brow to
bra and her hand in his fly, is a child, you lose believability.
It has the same effect on her when you tell her that this guy, who
misses basketball practice to be with her and happily spends his
last penny to impress her, can’t really care for her. Or when
you tell either of them they’re too young to have any real
sexual feelings. Physically, what they feel is very
real! What they understand is considerably more limited,
and our guidance could be valuable to them, if it’s not cloaked
in condemnation, and worse, criminalization.
Obviously most teenage pregnancies without marriage represent a
long-term disadvantage for the girl and a costly problem for society.
It’s been shown, though, that appropriate sex education is
more effective than criminal law in convincing teenagers to avoid
becoming parents prematurely. Some parents object to such courses
when they teach minors about contraception, on the theory that this
condones and encourages sexual activity. But students who’ve
had these classes are more likely to choose abstinence than
those who have not, while those who were almost certainly going
to be sexually active in any case are at least more likely to take
precautions against pregnancy and disease.
Michelle Oberman,in her 1994 article "Turning girls into women:
Re-evaluating modern statutory rape law” (3)
seems to argue that it's impossible for a teenage girl to
give informed consent. She very rightly deplores the use of coercion,
of making heroes out of boys who compete to rack up numbers of conquests
by any means right or wrong, and adults, including authorities,
who dismiss such behavior as mere pranks. I agree that this is not
only wrong, it is repugnant. Oberman also points out the irony that
some (including me: sorry) believe a girl is competent to decide,
under normal circumstances, whether or not to engage in the ultimate
physical intimacy when she's still too young even to sign a contract.
The point can be made that there's an upside to this irony. Anyone's
first sexual experiences can be confusing, and evoke extremely powerful
new feelings that the individual cannot fully understand. Perhaps
there's an advantage to navigating through these emotional whirlwinds
when still too young to make legal commitments! As I said a few
paragraphs ago, those bumps and bruises can occur at any
age at which one becomes sexually active. In my practice I've met
more than one couple who had their first sexual experience in their
mid-20s or later, and quickly jumped into marriage, convinced that
what they felt could be nothing less than love destined to last
a lifetime. Many times I've heard men and women (actually more often
women) say sadly "[W]e just should have had an affair"
or "I wish I'd gotten laid when I was sixteen."
The irony of legal sexual majority preceeding contractual majority
notwithstanding, in most other advanced nations the age of consent
is 16 at the oldest, yet as Richard Posner points out, they
have lower rates of such problems as teenage pregnancies than we
do . Here in the U.S. as elsewere, those same teenagers of both
sexes, who are not legally entitled to sign contracts, are held
responsible for payment of taxes, and can be tried in criminal courts.
Can we assume that a young person who is quite competent to decide
whether or not to participate in a purse snatching is not competent
to decide for himself or herself about sexual activities? Or could
we rationalize this contradiction by saying it’s only the
female of our species who, at this age, is incompetent to think
for herself and therefore incapable of giving informed consent?
That would be inconsistent with the principles that feminists have
been fighting for. Or can we say that a teenager is competent to
decide whether or not to commit, say, forcible rape (and therefore
can be held responsible) but mysteriously lacks that competence
when the decision concerns benign sexual activities? Any good lawyer
could rip that apart in court.
Whatever you and I think about teenage sex, it's the norm and trying
to prohibit it by legal sanctions makes as much sense as outlawing
snow in Chicago in January. It's been consistently found in studies
going back to the mid '70s that the median age for boys at time
of first intercourse is about 15 and for girls about 16 (5).
A few more interesting points presented by Richard Posner
(3):
Christian societies are generally the most conflicted about, and
repressive of, sex;
America punishes sex crimes more severely, and non-sexual serious
crimes less severely, than other advanced nations (although we also
hand out exceptionally harsh sentences for run-of-the-mill non-sexual
crime, discussed elsewhere in these pages);
The higher the age of consent, the more sexual behavior is criminalized,
the lower, the greater the risk of coercion. In better-informed
societies it should be lower because children are better prepared
to protect themselves;
In Japan, pornography is sold openly, including scenes of rape
and bondage, prostitution is tolerated, teenage sex is common, but
illegitimacy and teenage pregnance are uncommon, and the divorce
rate is very low;
It's paradoxical to assume, as American society does, that sex
with an adult male will impede a girl's heterosexual development,
but that sex with an adult male will facilitate a homosexual
adjustment in a boy.
Is this going too far?
The knee-jerk paranoia about teenage homosexuality does not end
at our shores. In England the age of consent for heterosex is 16,
but for homosexual activities, 21! A 1995 effort to end the disparity
failed by a relatively small margin in parliament, but some British
citizens, notably Peter Tatchell (6), believe
the age of consent for all sexual activities should be lowered at
least to 14. Per Tatchell, 1/3 of lesbians, 1/2 of heterosexuals,
and and 2/3 of gay men, are sexually active by age 16, and "the
law makes criminals of them all." Making some comparison's
similar to Posner's, he calls attention to the Netherlands, Portugal,
Spain, and Malta where the age of consent for everyone is effectively
twelve years of age (he does not define “effectively”)
and in Slovenia, Iceland, Montenegro, Serbia, Italy, San Marino,
and in some circumstances, Germany, it's set at 14.
One solution to the problem of over-criminalization of teenage
sex that has been suggested in Britain is to eliminate the age of
consent altogether, provided there is no more than three years difference
between the partners. Thus, in Tatchell’s example, there would
be no penalty for sex between a 15-year-old and a consenting 12-year-old.
This ignores what seems obvious to me: Not all three year periods
are created equal. The three years, say, from ten to 13 are a hell
of a lot more significant than the three years between 18 and 15!
By the way, if this three-year criterion were applied across the
board, could a 50-year-old be charged with statutory rape for having
sex with a consenting 45-year-old? So making the needed changes
requires some intelligent, non-moralistic thought, i.e., some effort
and, therefore, expense. That one-time effort should, however, be
considerably less of a drain on resources than the yearly drain
created by the current non-system. By now you understand my point:
These sex laws are outdated and arbitrary, impossible to enforce
fairly, and an unnecessary drain on the criminal justice system.
In our society, they also make a mockery of the basic concept of
law.
Instead of spending $19,000 [currently between $22,000 and $28,000 average, PKF, 2007]
a year to keep in prison someone whose
crime was to have sex with a willing 15- or 16-year-old, I’d
rather spend the money apprehending and punishing the bastard who
forces sex on an unwilling partner, and protecting
children from the men (and sometimes women) who choose sexual targets
of twelve, or nine, or six years of age. For willing teenagers past
some arbitrary but reasonable limit, the matter should be seen as
a moral, not criminal one. If it belongs in any court at all, it’s
a civil court.
At this point, I wish I could lay out the cost of keeping in prison
those convicted of having sex with a consenting 15-, 16-, or 17-year
old, but even a reasonable estimate is difficult because of how
records are maintained. Please forgive me for offering instead what
I readily admit is a guess! The actual number of prisoners
involved is, in any event, relatively small.
When state court statistics are compiled by the U.S. Department
of Justice Statistics statutory rape is categorized as a form of
violent sex crimes against children, as is "lewd acts with
children." The definition of the latter is, of course, leaves
a great deal of room for speculation and opinion. Statutory rape
with an older child is, by definition, not really violent, because
"forcible rape" is a separate category. But could some
of those lewd acts with children be forced, or would a forced so-called
lewd act be categorized with "other sexual assault?"
My own guess is that the majority of "lewd acts" are
voluntary on the child's part. The typical scenario I imagine is
that completed genital or oral intercourse is considered statutory
rape if the child consents, and forcible rape if he or she does
not. When the activity the child consents to is sexual, but falls
short of actual intercourse, I believe this would typically be considered
a lewd act.
The only age breakdown given for victims is before or after the
child's 13th birthday, so from these data we do not know the number
of victims ages 15 through 17. Of the ages 13 through 17, ages 15,
16, and 17 comprise, of course, 60%. This does not automatically
translate to 60% of prisoners having taken victims in that age group
because the actual age of consent varies from state to state, and
there is less likelihood of an adult accused of having sex with
a 15- to 17-year-old being tried, convicted, and sentenced to prison
even if the victim is still under the legal age of consent.
In the data before me, as of 1991, there were only 373 adults
serving time for statutory rape of victims age 13 to 17, and 3,195
serving time for for lewd acts with victims 13 to 17. My admitted guess
is that 40% of the statutory rape group had victims 15 to 17. Further,
I'm daring to guess that 40% of the lewd acts group also
had victims 15 to 17, and that 80% of these acts were consensual
on the part of the child. If these guesses are close to correct,
then as of 1991 we had 1,171 serving time for sexual activities
with consenting partners 15 to 17. The cost for keeping them
incarcerated would be over $22,000,000. Costs of apprehension
and conviction, plus probation or parole for those not actually
in prison, would probably double that figure, to around $45,000,000.
In the grand scheme of national economics, that's not a huge sum.
But it's enough to hire about 700 additional police officers for
high crime neighborhoods, and about 500 social workers to assist
high-risk families. Equally important, in my opinion, is the intangible
cost of criminalizing non-criminals and undermining confidence in
the logic and fairness of American laws.
Grown-Up Americans, Subject to Childish Laws
So far we’ve only incidentally mentioned laws intended to
control sexual behavior between consenting adults, sometimes even
between husband and wife. Much has been written about this, in various
contexts, by numerous authorities. Failing to give the subject a
few paragraphs in a book about flaws in our approach to criminal
justice, however, would be a glaring omission.
The Peewee Herman matter incensed civil libertarians and provided
a windfall of new material for comics. Personally, I felt sorry
for Peewee and thought his prosecution was--how do I say this--stupid!
An issue even larger than the unnecessary criminalizing of one person
is the criminal misappropriation of resources. In the time it took
those two officers to apprehend one unlawful dingwhacker, they could
have been patroling a high-crime neighborhood. Or talking to high
risk teenagers at a youth club. Or walking a beat and strengthening
citizens’ trust in their protectors. Need I go on?
Now multiply that by all of the similar but less notorious cases
arising (no pun intended) every day, and you see that the misdirection
of resources is more than trivial. A column in a conservative German
Newspaper, Neue Zürcher Zeitung
by Ulrich Schmid expressed bemused dismay at American sex laws:
“...alongside America’s ample generosity and freedom,
there still exists a goodly measure of small-mindedness and, above
all, hypocrisy (translation) (8).” Schmid
refers to a number of ridiculous and intrusive laws, including the
illegality of oral sex between a man and woman in 23 states (one
man received a five year sentence for oral sex with his own wife),
anal sex punishable by a life sentence, and the burlesque of Georgia’s
legislature considering warning signs of forbidden sex acts in hotel
rooms during the 1996 Olympics. The idea of the signs was abandoned
on the realization that illustrations would be needed in order to
properly warn non-English speaking visitors.
Even if such laws were never enforced, they would still make their
contribution to our crime problem: Every such statute can be taken
as proof that “The Law” as a whole is pointless. What
does “Law” stand for when it makes criminals out of
(probably) the majority of Americans? I've heard this legal lunacy
cited by an "old timer" on the cell block in the edification
of young minor offenders: "You think you can live within the
law? You can't, not when you can get locked up for getting a blow-job.
So why try?" And the audience listens with puzzlement, then
nods in agreement. But attempts are made to enforce morality laws,
sometimes to the letter. The more vigorous those attempts, the greater
the waste of resources.
Is watching a big threat to society?
For a while I was a standup comic in a strip club in a large southern
city. (OK, it wasn’t the most saintly pursuit in the world,
but it was the best paying honest job I could get at that time.)
The local morality laws were rather strict. Three or four times
a week a contingent of the vice squad would drop in. OK, there’s
stuff that shouldn’t go on in a club like that, or anywhere,
so police surveillance wasn’t inappropriate--up to a point.
But these officers, seven of the city’s most capable, spent
incredible hunks of time trying to catch a dancer doing a “bump”
with her knees apart, or letting a little nipple show above her
pasties , or wearing a “fringe” that was even a little
transparent. A “fringe” is the dancer’s decorative,
moderately revealing briefs. Where G-strings aren’t permitted,
the fringe, plus pasties instead of a bra, is about as naked as
a girl could be without getting a free ride to jail. If any of the
dancers had actually appeared in a real G-string, I wonder if the
police might not have roared in with machine guns blazing. Heaven
knows what they would have done to any Peewee Hermanites they found
in the audience!
That city wasn’t the murder capital of the nation, but neither
was it Camelot. There were areas of town that sorely needed more
protection, and too many capital crimes that went unsolved. But
here were seven of the city’s best, and best paid, officers
assigned as full time pubic police!
Recently officials of Cicero, a near suburb of Chicago, announced
proudly that they had successfully closed the last two bars with
nude dancing in the town. Cicero has been known for such T &
A shows at least as long as I've lived in Chicago and, if anything,
they've become more benevolent. There used to be frequent rumors
and reports by columnists of some guy handing over a credit card
in such a place, and discovering later that he'd bought several
thousand dollars worth of entertainment in a couple of hours. Or
even of drinks getting doctored and customers getting fleeced. Real
crime tends to flourish in artificially created forbidden territory.
I'm not in a position to comment on the accuracy of these stories,
but can say I haven't heard any for a long time now.
What we do hear about frequently is the growing gang problems in
Cicero and surrounding areas. The usual violent rivalry, street
corner drug sales, and drive-by shootings have invaded what used
to be a safe area to live in. Why are officials wasting their time
and taxpayer's money, using licquor licensing laws, to prevent consenting
adults from paying to ogle other consenting adults shimmying around
in the altogether? I have never yet had a defendant give an explanation
for a crime such as:
Well, here I was, drinking a beer, watching this girl squirm around
on the floor and pull off her G-string, and I was struck with this
overpowering urge to grab my 9 mm and kill a couple of strangers.
If only it had been non-alcoholic beer, or if the girl had kept
that couple of inches of whazzit covered, they'd still be alive.
Maybe the same time, money, and energy could have put a couple
more policemen on patrol in high crime areas, or steered a few kids
away from the gangs. Sometimes I wonder where the hell our heads
are!
Are We Going Back to Public Stocks?
An occasional front-page article in big-city newspapers features
the boasts of police about the number of “Johns” they
busted last weekend, i.e., the number of men arrested while attempting
to do business with a street prostitute. It is not uncommon for
dozens of police officers to be involved in these “sweeps.”
In some ways, the process is like legal blackmail: In some municipalities
the names of men arrested for this “crime” are published.
In many their automobiles are confiscated until they pay a fine
and other costs, usually totalling several hundred dollars, and
most guys fork over the money quickly to avoid having to explain
to a wife or girlfriend where the car went, and why.
Sometimes the embarrassment is heaped on people who are totally
innocent. Men have been arrested for asking directions, women have
been arrested for waving at a friend in a passing automobile. I
was once an unwilling participant in an event that could have been
very unfortunate. This happened about 25 years ago, but I’m
sure similar charades still occur regularly.
One Saturday evening my wife and I were having dinner with a couple
we knew, a minister and his wife, and listening to folk music. Our
live-in housekeeper/babysitter had gone shopping that day, and arrangements
included her getting to a street corner in the area by public transportation
and us picking her up at a specified time so she could ride home
with us. We were still talking when that time came, so we agreed
that I would get the car out of the garage, meet the girl, and bring
her back to join us. Seeing her on the corner, I tapped my horn
and she got in the car. She was a strikingly pretty young Jamaican
woman but she was very religious and dressed modestly. As I started
to drive away a police car suddenly appeared and cut me off with
inches to spare. Only after it stopped did the flashing lights come
on, as one officer came to my window and another positioned himself
outside the passenger’s door.
“You got some identification?” he asked. I produced
a driver’s license. “Where are you going?” I told
him my wife was waiting for me with some friends. “Where do
you work?” was the next question. I told him the name of the
company and my position, and showed him a business card. “So
who is she?” he demanded, shining his flashlight in
the frightened girl’s eyes. I started to say simply that she
worked for us, but knew he might misinterpret that: Aha, this guy
runs a whorehouse, and he's retrieving some of the merchandise.
Instead I said “She’s our housekeeper and babysitter.
She’s lived with us for over a year.” By then he realized
he’d jumped to the wrong conclusion, and said matter-of-factly
“Sorry to bother you.”
When I told the minister friend, who happened to be black and very
involved in civil rights work, he just shook his head sadly. The
girl asked if they thought she had stolen something. When I explained
why we had been stopped, she was furious! I apologized for the policeman,
for the United States, for the white race, for not having foreseen
that this simple action could be misunderstood, but she reminded
me daily for the next month that she was still angry at “those
police people.”
OK, no major harm done. But I couldn’t help wondering how
it would have turned out if I’d had to say I was unemployed,
or didn’t have my driver’s license with me, or if the
girl had known what was happening and had dared to get angry with
a white police officer, or if my fender had dented the police car
when the driver decided to play Elliott Ness, or if I were not white,
or were driving a less respectable car, or hadn’t known English.
Of course there are some legitimate reasons to intervene in street
prostitution. In areas that are frequented by prostitutes, other
women get propositioned on the street. Occasionally the services
are performed on someone's front porch. Men sometimes ring doorbells
after midnight, in a misguided search for "action." Street
hookers have gotten beaten or killed when the customer wasn‘t
satisfied with the service. All too often what appears to be a woman
offering horizontal recreation is really there to set up robberies,
robberies that sometimes turn into murders. This kind of street
vending spreads disease, including the deadly HIV.
But current policies don’t work well, waste resources, and,
as I’ve said, use legal blackmail as a law enforcement tool.
Legal, controlled prostitution is commonplace in most countries,
including other advanced nations. Fees paid for licenses cover the
costs of frequent medical examinations. Designating specific areas
and establishments, as well as legal times of operation, virtually
eliminates the kinds of problems I've described. Since the business
is legal, practitioners are more likely to pay taxes like the rest
of us.
Don't ask me how they'd handle depreciation of capital equipment
on Schedule C. That's what accountants are for.
Back to the subject of public humiliation as punishment. Something
like this is taking place as I write this in Door County, Wisconsin,
a sort of working man’s Riviera . As you are no doubt aware,
laws have been passed permitting or requiring notification of residents
if someone convicted of predatory criminal sexual acts against children
is released and living in the area. There are solid reasons for
such laws, as any number of tragic events have shown. Wisconsin
law permits the public identification of all convicted sex offenders,
and the Door County sheriff has posted a list of 27 such individuals
who “live in, work in, or regularly visit” his domain.
A flyer with photos and other identification was inserted in local
newspapers and shown on television.
While no rational person could disagree with efforts to prevent
serious harm to a child, when it is reasonably possible such harm
would occur, this public airing skewers a number of former offenders
who have long since ceased being a threat to society, as well as
harrassing some who were never much of a threat to begin with. Examples:
A man who, after his 18th birthday, continued his sexual relationship
with his 14-year-old girlfriend. This happened seven years ago.
He served two years in prison for this “crime,” and
is now steadily employed in the area and engaged to be married;
A former Lutheran pastor who, in 1993, had an affair with a
church secretary, by his account after her repeatedly walking
naked into his office. This happened in Minnesota where it is
a felony for anyone in a "counseling role" to have sex
with someone he or she serves. Not a bad idea when it comes to
preventing therapists from seducing their patients, but a pastor
and church secretary??? And now it’s plastered all over
the area where he works and makes a substantial contribution to
the community;
A 41 year old man who, 21 years ago, in a drug haze and angry rage,
attempted to rape a woman. Fortunately, he was stopped, and he readily
acknowledges this act was very wrong. He served 16 years in prison
and is on parole until 2010, is now married, and runs a gourmet
coffee shop catering to police officers, judges, and lawyers. His
wife’s response: "...my husband is a reformed, upstanding
human being. He’s a doll. Now he’s being punished again.
It makes me want to cry.”
At the risk of redundancy, children should be protected, and sexual
predators should be reasonably restrained until they are no longer
a serious threat. But treating all offenders convicted of
any sex crime, for the rest of their lives, as though they
are monsters ready to rape the next five year old they meet on the
water slide, is a gross injustice. To this psychologist, this kind
of trend simply betrays our society’s sexual insecurities,
symbolically “purifying” ourselves by torturing those
on whom we project all of our own conscious or unconscious fantasies.
Summary
I’ve chosen not to lace this discussion with too many numbers
and citations, because precise statistics relevant to this point
are elusive and because I think you will get the point clearly without
them.
The category of “other sex crimes” is really too broad
to address here. In my opinion, exposing oneself ought to be punishable
if it’s intended to cause fear or other emotional distress,
or if the target is a child. But urinating behind a tree when there’s
no other alternative is hardly criminal. You can probably guess
what I think about prosecuting consenting adults for their personal
activities. (I’ve always thought that referring to sexual
intercourse as “personal” is a misnomer, since by definition
it is interpersonal; the only personal sex act is solitary
masturbation.)
Most pornography prosecution is a waste of time and money. Of
course, you and I have a right to walk down the street without being
subjected to heavy-duty obscenity, but making it available to adults
who want it should not be an arrestable act. Distributing pornography
to children, as well as producing or purchasing pornography involving
sex acts with children, is criminal although, as I hope I've
made plain, I think our definition of a “child” in this
regard is out of contact with reality. Most egregious of all is
applying one community’s standards to a publisher who produces
where the standards are very different, as in the Larry Flynt case.
If we carry this to its logical end, executives of the Chicago Tribune
can be prosecuted by the authorities in some far-off village, where
the Trib happens to be sold, who are offended by Brenda Starr.
Some final thoughts: Are you opposed to oral sex? Don’t do
it. Do you find the idea of “sodomy” repugnant? Don’t
do that either. (Did you hear about the guy who was charged with
sodomy, and his lawyer got the charge reduced to “following
too closely?” Sorry. I couldn’t resist that.)
Are you horrified at the thought of your teenager having sex? Or
having sex with an older person? Explain your reasoning to him or
her, and with love and wisdom, teach your child about other choices,
but don’t devalue your child completely if he or she makes
some choices that go against your moral grain. And don’t try
to use tax dollars to pay police, prosecutors, and judges, to enforce
your parental beliefs.
Is erotic entertainment repulsive to you? Easy enough. Don’t
look at it! (But that doesn’t mean I approve of the obscene
“spam” or unexpected pop-up ads on the Internet. You
shouldn’t have to see what you don’t want to see. And
I don’t think all the gratuitous erotocism in ads, movies,
and television programs serves any useful purpose.)
We can’t afford the money or mental energy to get
bent out of shape about pretty ladies bouncing around on a stage
with their clothes off. I’m more concerned with the ladies
who get their heads bounced off the pavement, who are raped and
mutilated, by guys who are going to do it again and again before
we catch them. We can’t be obsessing about kids making out
in the back seat, when there are so many kids who don’t make
it home from school alive. We can’t call out the Marines when
older and younger lovers fall for each other, when we have cities
falling into crime-ridden ruins.
We’re capable of straightening out our problems, if we start
by straightening out our priorities.
Notes
1.Daubenmier, J. (1997, July 27). Poll: Adults favor raising age
of consent for teen sex. The Herald-Palladium (St. Joseph, MI) p.
A1.
2. J. of Criminal Law and Criminology, 74, winter, 1518 to 1555.
3. J. of Criminal Law and Criminology, Vol 85, summer, 15 to 97
4. Posner, R. 1992. Sex and reason. Cambridge, MA Harvard University
Press
5. Cvetkovishg, G., and Grote, B. 1983 Adolescent development and
teenage fertility. In Byrne, D., & Fisher, W. (Eds.) Adolescents,
sex, and contraception. Hillsdale, NJ: Lawrence Erlbaum Associates.
6. 1995, Sweet fourteen New Statesman and Society -- vol 8 june
23, page 25
U.S. Bureau of Justice Statistics 1996 Child Victimizers: Violent
offenders and their victims.
7. The crimes of love. (1997, September). World Press Review, p.
34.
8. For those who are totally non-conversant with the bump and grind
culture, a pastie is a flat-cone-shaped wardrobe accessory that
is attached to the dancer’s aureola (I guess that should be
plural!) with double-sided tape or some kind of (hopefully!) non-irritating
glue, just large enough to cover the area, i.e., between one and
two inches in diameter. Sometimes they’re made so that they
resemble a real nipple from a distance, in which case they’re
called cheaters. Gets silly, doesn’t it? A G-string is essentially
a couple of pieces of elastic and a triangle of fabric that covers,
barely, the lady’s pubis. Sometimes legal authorities get
tied up in such momentous issues as whether the G-string covers
enough, or is too transparent, or if local law requiring a G-string,
as written, means the girl’s legal if she’s wearing
it on her head, etc. etc. etc.
9. If you didn't know, T & A is a polite show business abbreviation
for tits and ass.
10. Holt, Douglas (1997, December 7). Published list of sex offenders
stirs Wisconsin debate. Chicago Tribune. Section 1, p. 3.
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