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January 12, 2015
"Disgust, Dehumanization, and the Courts’ Response to Sex Offender Legislation"
A helpful reader alerted me to a notable article by Alexandra Stupple appearing in the Fall 2014 issue of National Lawyers Guild Review which has a title that also serves as the title of this post. The relative short article (which starts on page 8 of this pdf link) has the following introduction and conclusion:
Sex offenders have been subject to unprecedented restrictions and punishment. The government’s treatment of sex offenders is a clear example of the dangers of laws derived from and upheld because of the emotion of disgust. Disgust has led to a dehumanization of this category of people, which has led to a stripping of their constitutional rights. The law’s treatment of sex offenders is a clear example of why the law should eschew employing the emotion of disgust during all proceedings. In addition, the courts’, particularly the Supreme Court’s, treatment of the other branches’ actions regarding sex offenders is illustrative of why the law needs to insist upon empirical data in support of legislation and why the courts should not always defer to the other branches’ findings....
Today, all communities rightfully think of crimes such as child rape and molestation as the grave and heinous acts they are; however, a panic has ensued which has led to a squandering of public resources, the dehumanization of a swath of people, and the denigration of the Constitution. For the protection of everyone’s constitutional rights, a conscious commitment by all lawmakers to use empirical data in their fact-finding and decision-making is required, even if done while feeling and expressing emotions like anger and contempt. This may be the only way evidence-based practices and policies that actually protect the public from sexually violent persons will be born.
January 12, 2015 at 05:15 PM | Permalink
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Comments
Although words like animosity, hate, and disgust are words that are all the rage these days in certain sectors of the academy and those justices that listen to them I think it is horseshit. There is no basis--in either our civil law tradition or in our constitutional tradition--for annulling laws based on emotions of the people who passed them. The entire motivation for the Civil War was based upon the North's moral /disgust/ for slavery. Has anyone of these people ever bothered to read a copy of The Liberator?!
The academy has becomes so lost that these days William Loyd Garrison would be tagged as teahaddist. These crazies would be opposed to the Civil War simply because it was not motivated by love of the black population. What on earth are these people thinking!!
Posted by: Daniel | Jan 12, 2015 5:33:59 PM
Martha Nussbaum has written about the way "disgust" has led to problematic policy in books such as "Hiding from Humanity: Disgust, Shame, and the Law" and "From Disgust to Humanity: Sexual Orientation and Constitutional Law."
Emotion is going to be a factor in law-making and public policy in general, since humans are involved, but some emotions can mislead. Anti-slavery might have been influenced by the "disgust" of slavery, but also the empathy for the slave. Laws based on "disgust" of child molesters, making them basically inhuman at times, is a matter of concern. If the slave owner was treated as "subhuman" (somewhat unlikely as a general statement [I read a decent amount of antebellum history] and as a group generally elite, less likely to be a problem than if the class involved was the likes of convicted child molesters).
Anyway, public policy is supposed to be ultimately based on rational grounds and the perpetrators here are still human beings with rights. Emotion cannot be removed realistically but "evidence-based" strategies remain important, particularly in the courts.
Posted by: Joe | Jan 12, 2015 7:09:31 PM
Honestly, I think that the article was excellent and drills down to the heart of the purpose and cause of the proliferation of sex offender registration laws. Within the last ten years or so there seems to be a greater willingness amongst the courts to challenge legislative decisions, especially in areas where data is sparse or flat-out contradicts legislative intent.
It occurs to me that in any liberal democracy, before removing rights from an entire class of persons, there should (at minimum) be a showing that there's a rational reason for it (i.e., one not based on fear, or disgust, or hatred).
Posted by: Guy | Jan 12, 2015 9:35:11 PM
While watching Paragraph 175 I was disgusted once or twice.
http://www.tellingpictures.com/films/show/paragraph_175
Knowing where it went from there instilled some major cognitive dissonence.
Posted by: Meeow | Jan 13, 2015 2:42:05 AM
One MAJOR problem with Sex Offender laws is that the language has been usurped by the government and media under the “benevolent” auspices and assumed approval of the legal profession so that arguing about the effect of these laws and the subsequent consequences to actual individuals is meaningless. Add the legal (and non-conforming to historical definition) terms “violent” , “rape” and “child” to non-contact, non-penetration and persons past the age of puberty and you really scramble up any meaningful discussions.
One (of many) flaws in SO laws is the arbitrary setting of tiers of 10, 25, and lifetime registration which are not based on any reality. They were apparently pulled from some legislator’s rectum (their thinking part). That minors make up a significant portion of the registry is not even a point to be considered and discussed. I mean, really, what’s the difference between a 20 year old making out with a 16 year old and a 48 year old making out with the same 16 year old, whether consensual and desired by the victim or not. None if you consider the application of the laws and subsequent consequences.
The biggest lie of them all is the recidivism rate as defined in terms of all SOs. That certain individuals have a proclivity to repeat their actions and the rest are automatically thrown into the same stereotype based on no empirical reasoning and you have Justice Kennedy’s support for Smith vs. Doe which makes the Supreme Court just plain dumb and undeserving of any respect. It has not been earned.
I strongly believe that we are headed in one direction and that the laws that are meant to apply only to sex offenders now will be applicable to everyone’s grandchildren in the future in some way. We are that dumb!
Posted by: albeed | Jan 13, 2015 10:37:03 AM
What happens when large groups of former sex offenders say, "Enough!" and actually decide to do something about it. Will they use legal and non-violent methods to achieve redress, or will at least some of them feel compelled to use illegal, and even violent, means to repeal these useless law? Will they take a page out from those who are currently protesting police brutality from Ferguson to the present, or what? Time will tell.
Posted by: william r. delzell | Jan 13, 2015 4:55:48 PM
Sex Offender Registration is just an additional sentence for the offender. It does nothing to protect anyone. It creates jobs for the jackass cops to fill and gives the politicians something to rant about to get votes from their constituents.
Like all Jim Crow laws, it does nothing......absolutely nothing. Except make the ex-felon suffer longer.
When a sentence ends, punishment is over.
Posted by: Book38 | Jan 13, 2015 5:02:36 PM
How come violent offenders who have higher rate recidivism are not on any registry besides a few states and are not on any federally enforced registry. If someone hits you with a baseball bat, commits arson, and is part of a violent gang, and has a habit of shooting innocent people and being reckless, aren't they a threat to society?
HOW COME FORMER TERRORISTS OR THOSE WHO SUPPORT THEM ARE NOT ON ANY REGISTRY, AREN'T THEY A THREAT TO SOCIETY? SHOULDN'T THEY BE REQUIRED TO REGISTER? YOU WOULD THING YOUR LOCAL POLITICIAN WHO RUNS ON PASSING LAWS AGAINST OFFENDERS WOULD HAVE THOUGHT OF THIS RIGHT?
I think it has to do with the word "sex", you see "Sex" is a dirty word, "Sex offender" regardless of the actual crime (it can be a non-sex crime like temporarily detaining your nephew for misbehaving even for a few minutes or even if you didn't touch them), the fact that the state can label you a "Sex offender" almost regardless of the crime, and force you to carry a "Driver's license that says SEX OFFENDER" (can you go swimming if you leave the license in the locker room even though your not on probation and parole), is government power run amok.
Unfortunately our supreme court and many scholars agree with this madness. Regardless of political spectrum federalist,etc, improper statistics and evidence are used by the supreme court and defenders of SORNA and AWA. The heritage foundation defends it, but fails to mention that mere travel should not be considered commerce, and while teen consensual sex is not under sorna with 4 years, many other acts are, ie sexting between teenagers. The 100,000 missing "Sex offenders" hype has been accepted by the SC and john malcom and scholars at heritage.
"Mere travel is not commerce" without a crime on the state level should not be policed by the federal government, if one murders someone in one state and then 10 years later travels and murders in another state, federal law is not involved unless he was transporting things in violation of federal law.
Posted by: Morgan | Jan 13, 2015 6:18:00 PM
Good and bad article.
Bad:
No mention of the feminist witch hunt of the productive male to enrich the lawyer profession.
Left wing pro-criminal group with zero credibility.
Money talks. Suffrage for women happened after the daughters of robber barons inherited pre-income tax fortunes. Average women made money replacing men in factories. Vote ensued. Gay billionaires moved homosexuality from icky to spiffy. Need some pedophile billionaires, and all beefs will be straightened out with the lawyer.
Good:
Law should have empirical support, something the Supremacy has advocated from the beginning.
The sex offender registries offer no safety but do offer $billion in make government jobs. (from a footnote)
Law and appellate decisions are made on the basis of subjective personal perference of old people who are out of it.
Missed by these left wing lawyers.
First Amendment protects the receipt of information, not just the imparting. Downloading of child porn is immunized by the First Amendment.
Child porn decreases the sexual abuse of real children, its banning increases it. The penalties have not prevented child porn sites from growing to 4 million, have funded criminal syndicates overseas by maintaining high prices, have imprisoned harmless people who have not harmed children, while protecting thousands or far more of child rapists, and child abusers in the families of children.
The sex offender registries would not have helped their namesakes, Megan and Jessica. Both those innocent, beautiful little girls would have still been taken by vicious, repeat career child rapists and murderers, fully protected from the death penalty by the vile feminist lawyer traitor. The families of these little girls and of thousands of others each year should visit these feminist anti-family lawyers, and settle scores.
Posted by: Supremacy Claus | Jan 13, 2015 10:58:28 PM
To Supremacy Claus, I fail to see how this is a left wing issue, many "right-wing" legislators, particularly those who paint the left as "soft on crime", and also many conservative judges like alito have upheld this. Also "child porn" includes a "17 year old taking a picture of himself even without sharing it".
Yes registries would not have prevented crimes, especially since most crimes are done by folks familiar with the victim. Why can't I find out if an arsonists, violent gang or drug dealer, burglar, or terrorist lives nextdoor?
Posted by: Morgan | Jan 14, 2015 7:59:38 AM
Morgan: Walk over offering an apple pie with a plastic knife sticking from it, so he could cut it, as a welcome to the neighborhood offering. The offender finds you subtly threatening, maybe it's the knife, maybe you stare too long. He could have you arrested according to the registry website. So explain to me the specific benefit to you or to your family.
Posted by: Supremacy Claus | Jan 14, 2015 10:08:25 PM
This guy saw through the train wreck that is Megan's Law and the AWA (SORNA) 9 years ago! Strict liability "laws" are a witch hunt! Making people register will not keep Adam Walsh or Megan Kanka from dying in vain no MATTER what the NCMEC says. They are actually proud of and encourage the expansion and strict enforcement of this boondoggle. They love singing the praises of "knowledge is power" even though most sex offenders are phantom threats to children and are non-representative of the individual that brought about Megan's Law in the first place. Nothing says Christianity like marginalizing and witch hunting people by association!
If sex offenders even decide to march and protest.. they need to camp out in front of the lions den - the NCMEC building and not the capital. THEY are the ones calling the shots and tugging on the purse strings of Congress. The histrionics they use to justify their existence is nauseating and deplorable.
If you want to be sick to your stomach, watch THIS.
Posted by: Lance Mitaro | Jan 14, 2015 11:46:08 PM
The whol damed system is so sick and Corrupt. totally biblical mathew chapter 23 is back to the future, now..
Posted by: frank desmet | Oct 12, 2015 11:01:07 PM
im a citizin who needs your help for human rights and justice. a complete circle from now judicially to the bible 2000 years ago. Mathew 23 on ward WOE TO YOU SCRIBES and PARISEES (LAWYERS AND JUDGES) WHOE TO YOU.
Posted by: frank desmet | Oct 12, 2015 11:05:42 PM
