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March 3, 2009

Split Sixth Circuit ruling breaks new ground in federal guidelines masturbation jurisprudence

Faithful readers might recall this post from a few years ago discussing the case of a Florida jail inmate convicted of indecent exposure after a guard complained that he had masturbated in his cell.  I raise this bit of blog history because today brings a new Sixth Circuit case, US v. Shafer, No. 07-2574 (6th Cir. March 3, 2009) (available here), in which a split panel discusses at some length a novel federal sentencing issue:

Shafer contends that the district court erred when it imposed the two-level enhancement pursuant to § 2G2.1(b)(2)(A) because: (1) “sexual contact” does not include self-masturbation and (2) Shafer did not commit any “sexual contact” that can be considered “relevant conduct” for purposes of the enhancement.  Although we disagree with Shafer’s assertion that “sexual contact” does not include self-masturbation, we conclude that the district court’s imposition of an enhancement under § 2G2.1(b)(2)(A) cannot be supported by either theory advanced by the district court....

Shafer contends that the term “sexual contact” does not include selfmasturbation.  Neither party provided the court with any caselaw addressing whether self-masturbation is covered by 18 U.S.C. § 2246(3)’s definition of “sexual contact.”  We also were unable to locate such a case in any circuit.  Thus, this issue of statutory interpretation appears to be a question of first impression.

Though the underlying facts in Shafer should prevent anyone from turning this case into a tawdry joke, I cannot help being a bit amused that the federal sentencing guidelines have now helped engender a federal masturbation sentencing jurisprudence.

March 3, 2009 at 10:38 AM | Permalink


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Gee Doug, sex crimes have some disgusting facts, and sometimes these facts are set forth in great detail in legal opinions. Quelle surprise.

Posted by: federalist | Mar 3, 2009 1:36:03 PM

The point of this post, federalist, is not merely to note that sex crimes involve sex facts, but rather that the federal sentencing system apparently requires a federal appellate court to make a LEGAL determination about whether whether self-masturbation is covered by 18 U.S.C. § 2246(3)’s definition of “sexual contact.”

I do find the Sixth Circuit's need to create a federal guidelines masturbation jurisprudence somewhat surprising (or at least amusing), especially given that the Booker opinion was supposedly going to make the diktats of the guidelines less consequential.

Posted by: Doug B. | Mar 3, 2009 2:04:32 PM

Well, isn't that what courts do--apply the law to facts? It may be surprising to an ingenue, but to a law professor? Glad you find it amusing.

Posted by: federalist | Mar 3, 2009 3:05:23 PM

Why do you read this blog and post comments given your apparent disdain for the blogger?

Posted by: Guest poster | Mar 3, 2009 4:08:41 PM

I tend to assume, Guest poster, that federalist has a little too much time on his hands, though I always enjoy his engagement (and usually even his snark, though snark is often a bit too easy behind a pen name).

Posted by: Doug B. | Mar 3, 2009 4:41:58 PM

I look forward to the next law review symposium on this important and thus-far-undertheorized area of the law.

I imagine that there is ample social science literature out there that could have informed the court's decision, had it only been consulted or cited in a brief. Perhaps this opinion will mark the beginning of a new rich debate with diverse interdisciplinary perspectives.

And, of course, once there's sufficient interest, the empirical articles will start showing up in about 2012 or so.

Posted by: ab | Mar 3, 2009 5:02:00 PM

Snark? Sarcasm isn't the same as snark.

Posted by: federalist | Mar 3, 2009 8:48:15 PM

I trust, federalist, you will soon explain the subtle distinctions between snark and sarcasm. This is almost as important as defining the legal impact of self-masturbation.

Posted by: Doug B. | Mar 3, 2009 9:16:29 PM

Actually, the legal impact of onanism was more interesting in the Florida case. To me the big deal was the defense attorney's questioning of the jury on the point. She actually asked if prospective jurors masturbated.

I would have replied, "Do you?"

In any event, sarcasm can make a legitimate point; snark, on the other hand, is sarcasm coupled with sophistry. In another post, I stated something to the effect of "Sorry Al Capone, that tax evasion conviction stands". That wasn't snark, that was sarcasm. Why? Because it was directly germane to my point.

You don't argue with sarcasm; I do. You do two things: toss accusations of racism around and move goalposts when you get called out.

I often agree with you on more than you think. I just dont think that your arguments really arent that cogent. I find it amusing that you often think that criticism of the argument is disagreement with the conclusion.

Posted by: federalist | Mar 3, 2009 10:01:04 PM

So Doug, are we going to see some bizarre reference to drunk driving?

That's snark.

Posted by: federalist | Mar 3, 2009 10:02:31 PM

Can the Federal Self-Masturbation Reporter be far behind?

Posted by: Joseph Blow | Mar 4, 2009 9:08:57 AM

It's probably too early to draw any definitive conclusions, but early indicators suggest that Judge White will tend not to vote with the Sixth Circuit's liberals. (Remember, she was originally nominated by Clinton, then appointed last summer along with Judge Ketheledge in a liberal/conservative compromise package, championed by Senator Levin -- who's a family friend or distant relative of hers, if I recall correctly.) Judge White may join Judge Gilman as a "Democrat" who tends to vote with the conservatives on most close cases. If so, Levin's "compromise" will have tended to shift the Sixth Circuit further rightward.

Posted by: Anon321 | Mar 4, 2009 10:51:44 AM

Anon321, I noticed that too. I wouldn't read too much into it--this was a pretty nasty case on some pretty vile facts.

We'll see how she plays out in the death cases. Recently, the 6th Circuit sitting en banc reinstated a death sentenced--White didn't participate.

Posted by: federalist | Mar 4, 2009 10:58:38 AM

This really is a seminal case.

Posted by: anon | Mar 4, 2009 1:41:19 PM

Onanism? Onanism isn't the same as self-masturbation. Though trolling may well be.

Posted by: Michael Drake | Mar 4, 2009 1:48:18 PM

Remember my post indicating that the purpose of instituting ever-increasing punishment for sex crimes and ever-more-inclusive definitions of what constitutes a sex crime is ultimately to declare everyone a sex offender and thereby allow the government (made up of lawyers) to gain complete control of the non-lawyer population? Well, this is how it is accomplished! Once self-masturbation is legally defined as sexual contact which can be considered a crime (i.e., molesting yourself), every child who engages in masturbation at any time can be convicted of child molestation. This isn't so far-fetched. Look at the case of the two young teenagers who had sex and were each charged with molesting the other. And, of course, any adult who masturbates is guilty of a sex crime as well. Voila! We're all sex offenders.

Posted by: disillusioned layman | Mar 4, 2009 1:53:56 PM

disillusioned layman is not nuts. Sonograms, ‘child porn’ Yes, those sonograms, that "are usually found on the refrigerator of a house, framed on a desk in an office or more commonly posted on a personal profile on the Internet."

Posted by: George | Mar 4, 2009 3:46:18 PM

I was convicted over a dozen times for public masterbation and pled guilty on nearly all of them. Although I never touched anyone but myself.I was recently put on the scarlet letter registry for self masterbating all those times. I should have murdered someone.....I would have recieved a lighter sentence.

Posted by: william hohsfield | Mar 7, 2009 10:18:01 PM

I am a business manager. Last week I catched my 19 year old son, who's a student, live chatting on live-asian-webcam.com while masturbating. Of course it was an embarassing situation for both of us, but fortunately both of us were willing and able to talk openly about is. Subsequently I have confiscated his credit card with his consent. He admitted to have spent far too much money on this sort of nonsense sites. Am just wondering what other parents would have done in my case. Thanks for your reactions.

Posted by: wladiwostok | Mar 9, 2009 10:06:21 AM

I'm a Paralegal Your 19 year old son has found the modern version of what healthy men have been doing for years. Hopefully he hasn't gone too crazy with the credit card and can pay it off himself. Best thing is your son admits to the unreasonable expense. Make light of it and buy him some condoms. Reinforce the girl should be over 18, consenting and free. Smile when you say it!

Posted by: CTLADY | Mar 11, 2009 2:01:54 PM

hohsfield - retribution has taken its time ... masturbate in your own car and not get the girlfriend's father arrested! so much time has passed and could forgive so much if you became a better person ... laughin' myself silly over you getting put on the sex offender's registry. Enjoy your "lifestyle" ... your famous "lifestyle" speech ... it's biting down on both nuts!

Posted by: CTLADY | Mar 17, 2009 11:08:12 PM

Good blog... very interesting!! thanks for publish!

Posted by: Women masterbating men | May 22, 2009 5:25:59 PM

Though the underlying facts in Shafer should prevent anyone from turning this case into a tawdry joke.

Posted by: Online pharmacy | Jun 15, 2009 11:51:44 AM

ok im a teenage girl, and i was caught by my mom. its even weirder because i use my moms portable shoulder massager to do it! just as i orgasmed, she walked in, and i scrambled to cover up but she saw and knew what i was doing... she was all like "what are u doing" and i was like "yes, i do THAT" and shes like "i dont wanna know" and she walked out!! but the thing is that she is very proper, and hates anything from kissing to sex. she calls (but only when shes drunk) my 17 yr old sister a whore for not being a virgin..... PLEASE HELP?!? WHAT SHOULD I DO?!?!?

Posted by: generic viagra | May 17, 2010 7:15:21 PM

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