Senior Editor's Note

by Alex Marbury

June 1, 2010

What We've Become

America has not yet recognized that it has been gripped for more than 20 years by a full-fledged media sex panic that has allowed the erosion of virtually all Constitutional rights for anyone deemed a 'dangerous sex offender'.  

In the June edition of THE NATION, JoAnn Wypijewski has powerfully summarized the current state of justice in America.  (http://www.thenation.com/article/what-weve-become ). She summarizes the dreadful case of a young black young man who in the 1990s became the center of this media panic, cast as a monster for having unprotected sex with young women (most of them white) without disclosing that he was HIV positive. Now, after serving 12 years for statutory rape and reckless endangerment, he's to be doubly punished. A state-appointed psychiatrist decreed, “ (there is) a reasonable degree of professional certainty that Mr. Johnson (ed.note: an alias) does have a mental abnormality.”  Because of this psychiatric 'expert opinion' a court will now  decide whether to confine him indefinitely to a mental institution because he did what many 19-to-20-year-olds do: he had a lot of sex; he didn't use a condom; he didn't ask his partner's age; and he didn't tell his medical history.

As Ms. Wypijewski points out, it's considered irrelevant that someone infected him, someone who also didn't tell; and irrelevant, too, that his partners didn't ask and didn't watch out for their own safety. Johnson is just one of hundreds of individuals prosecuted for having sex or in some other way allegedly endangering others because of their HIV status. Thirty-two states criminalize nondisclosure of HIV status, with penalties of up to 30 years in prison; and states without special laws pass similarly draconian sentences under existing law. Now Johnson could become one of some 3000 sex offenders locked up in civil commitment camps at the state or federal level: people who, Wypijewski writes, are confined "not for what they've done, but what someone fears they could do."

America once thought such psychobabble was confined to the Soviet Union or other evil empires, which regularly put people away for what they MIGHT do. Yet, this is indeed what America has become! As Wypijewski notes, in the recent Comstock case, not a single U.S. Supreme Court Justice denied some government the power to define and confine what it calls a 'sexually dangerous person.' Those justices who in an earlier case were in the minority opposing civil commitment, did not bestir themselves this time to make a point on principle  Thus, the only difference of opinion was over whether the states or the federal government, too, could engage in this abrogation of basic civil rights. As solicitor general, Elena Kagan, the 'liberal' nominated for the Supreme Court by President Obama, argued the government's case in favor of such a totalitarian system.

And there's so much more!  As RSOL participants well know, some 800,000 Americans who have completed their sentences must allow their personal data to be published for all to see on compulsory public government sex offender registries.  America now refuses passports for up to 3 million of its citizens because of past criminal records, including virtually all former sex offenders, and for a wide range of others such as those involved in drunk driving incidents or failure to pay child support. It urges its friendly neighbors to the north and south to exclude any American even accused, not only of sex offenses, but of many political offenses dating back as far as the 1960s.   This is what America has become.  The 'iron curtain' we once deplored in Europe is descending on America, and most Americans haven't a clue.

After more than a century of racial segregation, America finally said its citizens had the right to to live where they wished – without segregation of any kind.  Now, sex offenders are subjected to what a recent writer called 'the new Jim Crow' laws, restricting them to areas sometimes as isolated as swamps or under bridges, in order to keep them far, far away from innocent children – regardless of whether their offenses involved children.   All of this in the name of protecting victims, despite numerous scientific research articles which show that such laws do NOT protect victims of sexual abuse, which usually takes place within families. Yes, such segregated gulags in America characterize the society we've become!

Ms. Wypijewski merits a full quote on her main point: “The insidious nature of panics is that they exceptionalize the ordinary, and then make ordinary the legal machinery supposedly instituted for extraordinary circumstances.”

When we find people like Mr. Jonnson, enmeshed in this  machinery, our outrage grows.  Johnson, now married and is his thirties, has been deemed abnormal  and dangerous because of what he did sexually when he was 19 and 20, and also what he did when he was 13, out alone on the street robbing people.   He's deemed dangerous because in that same wild youth he went to strip clubs a few times. He's dangerous because in prison he had sexual fantasies, because he looked at porno, because he insists he didn't know the two underage girls' ages and didn't mean to hurt them. He's dangerous because he seems so undangerous at times that the shrink says even though there's no evidence he's attracted to underage girls, his very manner could manipulate them. He's even dangerous because now he says he'd give his similarly-aged wife whatever sexual favors she wanted. Any way he turns, he's suspect. No matter what Johnson does, there's no way out!  If he wants to write books, he's a fantasist.  If he says he wants to run a business, but his wife (a nurse) says he'll apply for disability, it means he must be lying! Gotcha!

When we see cases like this up close, Ms. Wypijewski believes “we peer down into the cold dead heart of the society we've become.”   This Senior RSOL Editor believes America has utterly failed its supposed heritage as the 'land of the free.' Other democratic societies – Canada and the European Union among them – have far less draconian sentences for all but the most extreme sex offenses.  These countries have refused to allow life-time commitment or public registries to shame any offenders. Most other people around the world  look at the U.S., and shake their heads, as once proud Americans did with reference to the 'evil Communists'- "Look what America has become!"  they say.

When will America become what America was supposed to be?   Even a cursory reading of our history will show us,   America has always been the land of the unfree – founded on slavery, male domination and the supremacy of private property.   Rather than calling us back to our unjust past, the sex offender reform movement must demand we finally move ahead toward real justice.