Picture this: A photo of a boy and girl — unmistakably naked, posed and giggling — holding two very large sausages (Italian?). The boy is maybe 8, the girl maybe 6. They are not touching each another, nor does the camera seem especially interested in their genitals. What catches the eye are those sausages, but not that they are involved in anything you or I would call, right off, sexual: They are not being licked, stroked or inserted. They are more atmospheric, I guess you could say.
Is this child pornography? Well, if you are a photo lab manager in Burbank, Calif., you follow the in-store policy and ask the store manager. The store manager, noticing the nudity and the meat, follows what he takes to be the law and calls the Burbank police. The police send two undercover cops out with instructions to nab the photographer. The cops then order the photo lab manager to phone the customer, tell him his prints are ready and instruct him to come pick them up right away.
The customer agrees to drop everything and run over, but then doesn’t show, forcing the undercover police to cool their heels for six hours before giving up. Later the cops do nab the suspect, who says the photos were taken by the kids’ uncle who thought the children’s play with the sausages was “funny.” The Burbank police decide to let it go with a warning laced with disgust: There’s nothing “funny” about photos like these, photos that are indecent, degenerate and, next time, criminal.
As a script written for the Keystone Kops, this much ado about sausages scenario would be funny. But it is a true story. It is a sorry saga about our confused desires when it comes to kids and sex, and the way these collective desires are reflected in our failure to clearly define and execute the laws governing child pornography. This black comedy set in Burbank proves a scary point: At this time there is no way to differentiate — legally — between a family snapshot of a naked child and child pornography.
Not that photo labs don’t try. They do, and every now and then they light upon (or concoct) what they take to be a case of child pornography. There are about 10 cases in the last dozen years that have emerged in the press. Some are worthy of mention here, mostly because they weren’t worthy of attention when they occurred:
- William Kelly was arrested in Maryland in 1987 after dropping off a roll of film that included shots his 10-year-old daughter and younger children had taken of each other nude.
- David Urban in 1989 took photos of his wife and 15-month-old grandson, both nude, as she was giving him a bath. Kmart turned him in and he was convicted by a Missouri court (later overturned).
- A gay adult couple in Florida decided to shave their bodies and snap their lovemaking, convincing a Walgreens clerk that one of them was a child. They are suing the Fort Lauderdale police.
- More recently, Cynthia Stewart turned in bath-time pictures of her 8-year-old daughter to a Fuji film processing lab in Oberlin, Ohio. The lab contacted the local police, who found the pictures “over the line” and arrested the mother for, among other things, snapping in the same frame with her daughter a showerhead, which the prosecution apparently planned to relate somehow to hints of masturbation.
Even though the number of arrests is not large and the circumstances seem ridiculous, this photo lab idiocy is a serious matter: It puts all of us at risk, and it significantly erodes free speech protection by insisting that a photograph of a child is tantamount to molestation. Since it is what is outside the frame (the intention of the photographer, the reaction of the viewer) that counts legally, we are actually encouraged to fantasize an action in order to determine whether or not this is child pornography.
Every photo must pass this test: Can we create a sexual fantasy that includes it? Such directives seem an efficient means for manufacturing a whole nation of pedophiles.
The laws, whether state or federal, are inevitably firm-jawed when it comes to meting out punishment to child pornographers. But they seem uncertain both in what it is they want to put an end to and how far they want to reach into our home photo albums to do it.
In the great sausage caper, the photo lab operator and the Burbank police acted as our representatives to decide whether pictures of children and sausages constitute child pornography. This suggests that they have a clear idea of what a child is and that they know porn when they see it. What this also means is that we have a system that allows criminal conduct to be determined by just about anybody.
So, how do I know which kid pictures I can take to Wal-Mart, and how does the Wal-Mart photo guy know when to call the police about my pictures? The short answer is that there is no way I can know because there is no way he can know.
Some states require that photo labs report any photo that they deem suspicious to the police while others do not, but none give much help in explaining what suspicious photos of children actually look like. State law on child pornography is murky at best, and it varies from state to state. And when a photo lab sends its material to another state for developing, federal laws (which may differ from the state laws, but are equally murky) come into play.
In the absence of clear jurisdictional authority, much less clear laws, anyone snapping pictures of kids and wanting to avoid the slammer might decide to simply ask about the policies of their local labs and the corporations that direct them. How do they separate those who are simply charmed by their naked kids from those who seek to charm others for profit?
I expended no little energy trying to unearth the guidelines from the corporate headquarters of photo developing giants. I may as well have tried to get to the bottom of Cosa Nostra rub-out policies by making a few calls. I did discover that the world of photo developing is surprisingly small and, perhaps not so surprisingly, secretive.
When one talks to people at the top, as I did, one finds a penetrating and pervasive fear of public exposure. My sources promised to speak only on guarantee of anonymity. Too many lawsuits are pending and too many threats of others simmer to allow policy issues to be made public, said a top lawyer at one of the nation’s largest photo developing companies.
Still, according to all my sources (which include executives on the corporate level and also five local photo-lab people incautious enough to spill the beans), the correct procedures for handling questionable photographs are never clear and they vary — even within the same corporation — according to state law. They do not pertain to erotic pictures of adults unless they appear to depict rape or some other illegal activity. (Or unless one of the adults could be mistaken for a child.)
Kids are different. Naked kids under the age of 5 or 6 are probably OK, so long as nothing else in the picture invites suspicion. Nudity in older children may be a problem — or maybe not. It is up to the lab person or a supervisor to consult his or her own sense of propriety and moral sensitivities, as well as any rough-and-ready training that has been given in how to determine whether a photo constitutes child pornography.
Actually, given that the focus of the law has shifted from the photo to the reaction of the viewer, the wise technician will consult his or her loins: A turn-on means porn.
In any case, it seems obvious that only a society under great stress, wanting to look at kids’ bodies and blame it on somebody else, would tolerate dissemination of its policing functions to photo development clerks. We put photo labs in the position of resolving a massive cultural confusion that is both vicious and duplicitous.
No one, of course, is allowed to say that improper snapshots are not a problem — much less that child pornography in all forms is nothing but an urban legend. Nevertheless, according to state police officials in California, there is no commercially produced child pornography in this country and hasn’t been for some time. The risks of making it, they say, are simply too great.
Several speakers at an L.A. police seminar I attended a few years back laughingly admitted that the largest collection of child porn in the country is in the hands of cops, who edit and publish it in sting operations. There is at most, they say, a small cottage industry among civilians in which pictures (most of them vintage) are traded.
Even so, one might argue that amateurs are pros-in-the-making and that the problem of distribution is not solved by such a distinction. But as Philip Stokes, a photographer and senior research fellow at Nottingham Trent University, points out, although it may be true that somebody guilty of assault on a child has nude photos of children, that does not allow us to reverse the argument and say that possession of such photos means someone is contemplating the act. One might as well assume, he says, that anyone possessing antique magazines is on the road to burglary.
The truth is that true research in this area is impossible, given that it’s illegal to look at anything that is or might be child pornography. As a result, nobody knows exactly what child pornography is, what forms it takes, where it is, how much of it exists — or even if it exists. We seem happy that nobody knows: That way we can take our fantasies, project them onto phantom demons (the child pornographers) and feel righteous.
As for kiddie porn developed by mainstream photo labs, I would bet that it hardly exists at all. Oh sure, you may be able to find a case or two, but, allowing for a certain hyperbole on my part, I would say that we are off on another loud ride into fairyland, duplicating our earlier trips into satanic ritual abuse and recovered memory accusations.
We know that kids are not harmed by family snapshots or any other kind of photography this side of snuff films and photographs that document actual cases of assault, rape and other forms of violent coercion. So when was it, exactly, that the law lost the ability to tell the difference between a family snapshot and kiddie porn?
The latest wave of confusion comes from two developments in the ’80s and early ’90s: New laws were passed to differentiate child porn from unapologetic adult hardcore porn, and a new philosophy of pornography emerged that insisted that a potentially lurid photo can be considered not just illegal but a criminal assault on its subject.
We owe the latter assertion to the lamentably influential anti-porn feminists Catherine MacKinnon and Andrea Dworkin. They argued that porn (originally adult heterosexual porn) constituted not just image but action — action identical to sexual assault that is repeated each time the photo is distributed or viewed. (They did not, however, bother to define “pornography”; they assumed we all knew it when we saw it, which, in turn, ensured that we could never really know when we were not seeing it.)
Child protection experts used these arguments to redefine activities that looked vaguely pedophilic as criminal actions. Child pornography became tantamount to murder. Lloyd Martin, the infamous LAPD officer who was considered a national expert on the dangers to children throughout the ’80s, popularized the equation. Any form of pedophilic activity, he announced, is “worse than homicide.”
I think I’d rather my uncle take a picture of me with any number of sausages than kill me, but the real question is: Why would we make such comparisons? Why does a nude kid with a sausage make us think of murder? What leads us to feel that family photos of naked kids might demand attention? What are we criminalizing? What are we protecting? Can’t we tell the difference between a photo and an action? Even if the photos seem, to some people and to some degree, erotic, so what? Can’t we sense the erotic without acting on it? Why do we pretend that photo lab operators and cops are experts in the interpretation of images and the erotic impulses of those who record them and those who look at them?
The law provides no answers. In fact, we have made the key terms in operative legal statutes so vague that we can hardly be certain that any photo is clearly pornographic or, more to the point, not pornographic.
In 1982 (N.Y. vs. Ferber), child pornography, as yet undefined, was declared
to have no artistic significance and to be indefensible on those grounds.
In 1984, child pornography was, for the first time, distinguished from adult
pornography in federal law and defined as the “lascivious exhibition of genitals” in an underage subject.
By 1989 (Mass. vs. Oakes), “nudity with lascivious intent” was added to the definition. (All of this, I should add, is a part of federal law, which comes into play only in cases of interstate activity. Otherwise it functions as no more than a set of suggestions for state laws, which vary widely and wildly.)
The inclusion of “intent” shifted attention from the photo itself to the motives of the photographer and even the receiver of the photo. As a result, more laws were needed to list the elements that might provide clues to the photographer’s intentions. Now such things as a “visually suggestive setting or pose,” “inappropriate attire considering the child’s age,” a suggestion of “sexual coyness,” an intent “to elicit sexual response in viewer” or the use of a photo, regardless of the photographer’s intent, are specified “factors” in making the determination as to whether or not a picture of a child can be considered pornographic.
And that’s not all. The subject need not be naked for a photograph to qualify as child pornography. In 1994, Janet Reno decreed: “Neither nudity or [sic] discernability of genitals through clothing is a required element of the offense.” It is also not clear whether child pornography needs to involve actual children. If the photo conveys the impression that a child is involved in lascivious photos, that may be good enough. So morphed and simulated photos may still be judged to have a devastating “secondary effect” by stimulating the public appetite for such photos.
The law leaves us in a fog surrounded by murk enveloped in blackness. Sometimes adults who look like kids are photographed lasciviously. Other times, what are clearly kids are pictured in what some regard as lascivious attire. New York Mayor Rudy Guiliani and many others were deeply shocked by a proposed Times Square billboard showing small boys in expensive underpants bouncing on a suitably expensive couch. He thought it might encourage lascivious thoughts — not in him but in pedophiles. Calvin Klein backed down and allowed the furor to give him the publicity the billboards were aimed at.
Makes one wonder. What would it take to produce a picture of a child that was indubitably not pornographic? Put another way, why do we declare some things innocent and some criminal, some cute and others disgusting?
Consider this: Within the same cultural climate that sees sausages, showerheads and sofas as erotic props, “Naked Babies,” a book of photographs of the same by Nick Kelsh with text by Anna Quindlen, is not just acceptable — it’s in its second printing. Quindlen’s prose — full of treacle and truism, bathos and balderdash — provides a sentimental counterpoint that negates any suspicions aroused by Kelsh’s rain of naked bodies: “Adults in the presence of a naked baby reach out their hands,” she oozes, “as though to warm themselves at the fire of perfection.”
But how exactly is it that nakedness is divine at one point and the desire to touch it an act of flat-out reverence when, a few years later on in the child’s life, nakedness becomes shameful and any adults reaching out hands to warm themselves at the fire of perfection will find themselves in manacles? According to Quindlen, a naked baby is “androgynous,” “sensual as anything but not sexual at all,” while “a boy, a girl — well, they are something else.”
I agree that children are at risk — but not from cameras. Children are put at risk by neglect, emotional and physical abuse, bad health care, lousy education, lack of hope. Even sexual abuse, which ranks low among their torments, is not a problem of stranger abductions, child pornographers, priests or scout masters; it’s a family problem. And we all know that. It’s so well-known it can, it seems, be ignored.
Even sexual abuse, though it commands our attention, is not, statistically, a highly significant form of child abuse. The National Committee to Prevent Child Abuse reports that 11 percent of reports to child protective agencies involve sexual abuse (a little higher than “other”), far below physical abuse (30 percent) and neglect (47 percent).
One almost wishes that what we call “abuse” were the only nightmare kids have to face. For instance, 500,000 kids a year are classified as “throwaways” by the FBI. They are not foster children nor runaways (there are even more of those), but kids who really are set adrift, kids who would like to stay somewhere if someone would let them. But nobody will.
And yet we hurl our outrage and our resources and our art-critic police headlong into solving the non-problem of improper snapshots. It’s a little like starting a campaign for flossing in the midst of the Black Death.
Our alarm at abuse through camera lenses is a clear instance of the way we substitute a trivial problem for a perilous one. It is also a clear instance of the confusion that drives us to do just that. We seem so obsessed by the need to distinguish sharply between kids and eroticism that we inevitably stir them together; meaning to put them in separate rooms, we provide secret passageways so they can visit. We say so often and loudly that there’s nothing erotic about kids that we cement the association.
We are so obsessed by the bodies of children and are so devoted to protecting those bodies that we construct a world where very nearly everyone (but us) is driven wild by the sight of a child. Though we treat people who are sexually aroused by children as monsters possessed by feelings altogether unknown to the rest of us, we also act as if they were everywhere.
We like to say that the child pornography business is enormous, a multibillion-dollar industry; that the Internet is crawling with pedophiles distributing kiddie porn as they go; that millions of children are sexually molested by adults.
At the same time, we act as though these predators are not of us, are none of us, are as unknowable and rare as werewolves. Pedophiles are everywhere and nowhere, common and freakish; above all, they act as scapegoats for our own confused desires. We enter into heated mock battles with them at the oddest places: day-care centers, Satanic sites, schoolrooms and now photo labs.
We would not find ourselves in the midst of such a collective mess if we did not, on many levels, collectively want to be there. We all gain from sideshows like photo lab stings. And what we gain is immunity from thinking our own feelings. If we blame others loudly enough, we need not look at our own hearts and desires. It is a Gothic world we create with simple villains (the pedophiles) and equally simple rescuers (us).
Jock Sturges, the art photographer who has spent years in court for his photographs of children, analyzes all this very clearly for us: “I had to pretend to be something that, quite frankly, I’m probably not, which is a lily-white, absolutely artistically pure human being. In fact, I don’t believe I’m guilty of any crimes, but I’ve always been drawn to and fascinated by physical, sexual and psychological change, and there’s an erotic aspect to that. It would be disingenuous of me to say there wasn’t.”
So shines an honest man in a weary world. We all should be drawn to and fascinated by the beautiful and the arresting, including beautiful and arresting children, without being terrified by the erotic aspect in our fascination. Admitting to an erotic attraction is not the same thing as admitting to rape or assault: We do not commonly attack what we love and we do not feel the need to act on every impulse. Finding something erotic does not drive us irresistibly to mount it. We could use more complexity in our thinking on this subject, more tolerance for difficulty. And a lot more honesty.
The price we allow our children to pay for our scapegoating cowardice is enormous. Our kids, caught in the middle of all this, don’t mind our snapping lenses, but they do mind the ghastly world we picture for them. It is a world filled with dangers around every curve, with safety only in non-pedophilic adults and our friends, the police. We ought to examine more searchingly if we are really doing all this for their good, if we really need to see the world this way, if we aren’t the ones afraid of the demons. Especially the demons inside us.
This article originally appeared on
The Crime Report, the nation's largest criminal justice news source.
In February, a Minnesota judicial panel ordered the release of 64-year-old Clarence Opheim, a convicted child molester who had served nearly 20 years in the Minnesota Security Hospital in St. Peter.
Before being committed to St. Peter, Opheim had served a five-year prison sentence for molesting an 11-year-old boy. (He also has admitted to molesting nearly 30 other children.) He is currently the only sex offender to ever be successfully released from the state’s Sex Offender Program.
The historic significance of the moment, however, was lost on many residents of Golden Valley, Minn.
Before Opheim’s scheduled release in March, according to news reports, concerned residents of the town packed a community meeting hall to hear the terms of Opheim’s release, meet his social worker, and express their fears of living alongside a convicted sex offender.
Although Opheim will live in a halfway house, be accompanied by a social worker in public at all times, be forced to consent to regular polygraph testing, and wear a GPS tracking device, residents were still uneasy.
“Why wasn’t he left in the St. Peter community?” asked one. “I don’t understand why he had to move.”
Others at the town hall meeting asked officials why it had been decided to release an accused predator into a community with so many children.
“We think it’s time,” Assistant Hennepin County Attorney George Widseth answered. “Is there a way [that we] can take a dipstick and run it down his throat…for a certain measurement? No.”
But he didn’t reveal the state’s own uncertainties about whether to continue the kind of post-custodial oversight that is required to ensure that Opheim never molests a child again.
Minnesota is one of 20 states that have civil commitment programs, which allow for the indefinite detention of sexual offenders after their criminal sentences are completed.
In order for offenders to be held under the program, a court must determine whether they are sexually violent predators, incapable of controlling their impulses, and too dangerous to be allowed back into communities.
In 1997 the U.S. Supreme Court in Kansas v. Hendricks held that civil commitment programs are constitutional if the commitment is non-punitive.
Expansion of Programs
In the early 1990s, states with flush budgets began expanding their civil commitment programs to include sex offenders, as part of a tough-on-crime approach to high-profile, brutal sex crimes.
At the time, civil commitment once seemed the best solution to protect communities from released offenders who may once again commit brutal crimes.
Under what are usually called “Sexually Violent Predator” laws, prosecutors could file petitions to commit offenders if they believed those offenders were likely to re-commit.
Offenders are evaluated by court psychologists who must prove that they are unable to control their impulses.
Since there is no accepted or scientifically valid way to predict whether an offender will commit another crime, psychologists usually use an assessment tool called the Static 99 to evaluate risk, which rates sex offenders on standard criteria, including the sex of their victim(s) and number of crimes.
The Static 99 was created by psychologists R. Karl Hanson, Ph.D. and David Thorton, Ph.D.
Scores are then compared to recidivism rates of similar sex offenders. Once an offender is committed, the laws stipulate they must have access to treatment.
But ballooning costs and new court challenges are forcing state leaders to rethink.
States like Minnesota are finding that, while there’s no easy way to “measure” whether a sex offender is ready to be reintegrated into a community, budget concerns and court challenges have made detaining them indeterminately no longer an option.
“At the beginning, there was a genuine thought that these were going to bonafide treatment programs,” said Eric Janus, Dean of the William Mitchell College of Law in St. Paul.
“The idea was that people might be committed for several years, and they’d work their way through a real treatment program and a majority of them would be released. But it did not develop in that way.”
Facilities differ.
Washington, the first state to pass a civil commitment law, holds nearly 300 sex offenders on an island in Puget Sound. The offenders are “Level 3,” the most dangerous category of sexual predators.
The imposing facility is bordered by concertina wire, but residents are allowed to roam the inside of the facility relatively freely. They participate voluntarily in group therapy sessions.
Others are more state-of-the-art. A $388 million, 1,500-bed facility in Coalinga, California has stores, a library and a barbershop.
Both states, and many others, are struggling with runaway costs of the programs, totaling into the millions—especially at a time of budget restraints..
Offenders typically remain committed for years, sometimes decades. The number of offenders released differs from state to state—Wisconsin has released nearly 70 offenders, while Pennsylvania has released only one—but generally it is difficult to be released from commitment.
$180,000 a Year
On average, civil commitment programs cost taxpayers more than four times what it costs to imprison someone for a year. The most expensive programs can cost up to $180,000 a year, per sex offender.
Lengthy civil commitment cases can cost states thousands, or millions, in legal expenses.
“Civil commitment is like a roach motel,” said Al O’Connor, an attorney with the New York State Defenders Association. “They go in, but they don’t come out.”
New York State’s program costs over $170,000 per year.
“Every year,” added O’Connor. “it becomes a greater and greater drain on the mental health budget.”
Toward the end of the 1990’s state budgets began to tighten, but the civilly committed population continued to rise.
In Minnesota, according to Janus, “the buildings were filling up. The bureaucrats were coming to the legislators and saying, ‘We need millions to build more buildings. That was contradictory to the nation that these programs were stop gap measures.”
“They wound up this machine and they can’t politically stop it,” O’Connor said of New York’s law. “Once you have the law, you can’t stop putting people in the facility, because God forbid, one gets out and they go and do something. It becomes a scandal.”
Political pressure, both in state legislatures and judicial districts, often makes it exceedingly difficult to release offenders. It’s a common aphorism that the only way to leave St. Peter’s, and other civil commitment facilities across the country, is in a body bag.
In 2003, just as officials were crafting plans to begin releasing low-level offenders back into communities, a Minnesota sex offender named Alfonso Rodriguez Jr. abducted and murdered a 22-year-old North Dakota college student after he completed a 23-year sentence for attempted abduction.
After then-Republican Gov. Tim Pawlenty pledged not to release any sex offenders, Minnesota’s committed population exploded. Current attempts to reform Minnesota’s program—and increase opportunities for release—have fallen short after a 2011 legislative audit pointed out it was becoming financially untenable.
“Almost all the legislation that exists now is based on the exception, rather than the rule,” said Dr. Fred Berlin, director of the Sexual Behavior Consultation Unit at Johns Hopkins. “It’s legislation enacted when a horrible crime with lots of publicity occurs. It begs the question of whether we’re really going to have the most effective public policy.”
“It’s a radical concept,” Berlin added. “What we’re basically saying is we’re going to deprive someone of their liberty, based on a future crime we fear they’re going to commit.”
Court Challenges
The slim likelihood of release from commitment has been the basis for many lawsuits against states’ sexually violent predator laws.
The U.S. Supreme Court has upheld state and federal sexually violent predator laws partly because the programs purport to treat sex offenders with the goal of releasing them back into the community.
However, the Supreme Court also ruled in Kansas v. Hendricks, that mental health treatment is “merely an ancillary, rather than an overriding, state concern,” and programs do not necessarily become punitive if they fail to offer adequate treatment.
But problems within the system go beyond a failure to provide mental health treatment. The Minnesota Security Hospital in St. Peters, from which Clarence Opheim was released, has recently been rocked by scandal. In late March, CEO David Proffitt was fired after reports of rampant mismanagement. The state’s Office of the Legislative Auditor is now investigating the facility as well as the hiring practices of the Department of Human Services.
Meanwhile, the committed continue to challenge the laws.
Sex offenders have filed reams of pro se filings over the years. A handful have moved into higher courts, and some states have been ordered to improve conditions or treatment programs at their facilities.
Early this year, before judges approved the release of Clarence Opheim, a Minneapolis-based law firm took up two suits against Minnesota’s program—including a class action suit on behalf of 14 plaintiffs currently housed in Minnesota’s Moose Lake facility.
David Goodwin, part of the team that’s litigating the case, said the plaintiffs allege they are not receiving adequate mental health treatment, and are being housed in a criminal facility without criminal protections of due process.
Goodwin said detainees at Moose Lake are subject to unannounced search and seizures and are locked in their cell-like rooms for ten hours a day.
“As a person off the street you walk in and think, my goodness, this is certainly a prison,” Goodwin said. “There’s double razor wire, and cameras, and guards in every room. It’d be hard to argue that it’s not a prison.”
Moose Lake did not respond to a request for comment in time for publication.
Minnesota officials’ fear that the suits could successfully challenge its civil commitment law precipitated Opheim’s release into Golden Valley.
Lawmakers in Minnesota and other states have suggested extending sentences for sex offenders. Prison, where states don’t have the burden of providing mental health treatment, costs less than civil commitment facilities.
“Many of these people do need treatment,” Berlin said. “If people say, let’s just give them all tougher sentences, put them in prison and do nothing else, there’s nothing in prison that will erase these attractions or successfully help them resist acting upon them.”
Berlin said he advocates for inclusion of outpatient treatment, and structured transition programs into communities, into civil commitment programs.
“We need a criminal justice component,” he added. “But we also need a public health component.”
“Political Space” Needed
Last January, William Mitchell held a symposium on Minnesota’s civil commitment program. A number of key legislators and officials attended, Janus said, and agreed that “there needed to be political space to make changes both in the admissions side, as well as the discharge side.”
It was a positive step, Janus said, adding, “What political leaders have hoped for in the past is that they could take care of the problem by tweaking the criminal sentencing rules.”
“But even if you increase the length of sentences there will always be sex offenders getting out of prison,” he continued. “Inevitably, there’s always the potential that someone will commit a recidivist crime. Prosecutors know that they could be held responsible for those crimes if they fail to use the available tools.”
Some states, however, have experienced successful release of sex offenders.
Arizona has released the most sex offenders out of any state, with 69 in provisional release and 81 fully discharged, as of 2006.
Daniel Montaldi, who served as the former director of Arizona’s civil commitment facility until 2010, recalled that the state began accepting residents into its facility, located on the grounds of the state hospital in South Phoenix, in 1999.
The facility was built to hold 300 people, said Montaldi, who now works in Florida’s civil commitment program. “It was meant to be a mostly full confinement program, and people weren’t meant to get out.”
Less Restrictive Alternative
But Arizona’s sexually violent predator law allows for the committed to participate in a Less Restrictive Alternative, or LRA.
Around 2003, Montaldi said, “we took half of our administration building and made it a halfway house for offenders who had done really well in treatment. They could start off by having one outing a week, or month, where they could go out into the community with a staff member present.
“They would have GPS monitoring. Then you could progress gradually, where the guy could go out into the community by himself, and he could go to work, and our surveillance team would monitor him.”
Offenders who had progressed that far in the program would eventually be given a sponsor, be forced to submit to polygraph tests and physical surveillance.
“The advantage in Arizona was we could base our LRA program in the facility itself, but he would gradually pick up some freedoms, where the last step was living in the community after he’d already proven himself with the freedoms he already had,” said Montaldi.
“You didn’t have this dilemma where, ‘I’ve either got to lock him up completely or have him living in a neighborhood.’ ”
“The legislature,” he added, “also didn’t pay a lot of attention to the program,” he added. “It was the idea that if you stay out of the newspapers and you don’t have re-offenses or escapes, we’re not going to interfere a lot. That gave us the room to innovate.”
But when the facility suffered an escape in 2010, officials were forced to rein in its LRA program.
“An extensively developed community reintegration program is a fragile flower,” Montaldi said. “It’s very vulnerable, because suppose the guy is in the community and he escapes. You may catch him the next day, but if it makes the news, you’re going to get a strong reaction.”
With the Arizona model, he said, “you’re taking some risks that you wouldn’t be taking if you just put them behind walls and left them there forever. But our view was [that,] eventually, these guys are going to get out.
“At some point, a federal judge could shut this all down. At some point, the whole thing could go away, and you’ll have a whole lot of guys who have had no experience in the community, and suddenly, they’re out there.”
“The other part of what’s going to happen is that these guys are getting old,” Montaldi added, “You’re going to have the problem of needing nursing homes for sex offenders.”
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Imagine a little boy playing Xbox Live with a registered sex offender, a girl striking up a Facebook friendship with a child molester, a Match.com member going on a date with a convicted rapist. These are just a few of the both real world and imagined scenarios that have inspired attempts in recent weeks to restrict registered sex offenders from social networking, virtual gaming and online dating.
The aim of these approaches is understandable, but their effectiveness is questionable, and some experts see potential for it to backfire. What’s more, the breadth of these restrictions, and the inexactness of who is targeted, raise an issue unlikely to garner much sympathy: fairness to sex offenders.
On Thursday, New York Attorney General Eric T. Schneiderman announced that through an initiative dubbed “Operation: Game Over,” several major gaming companies had removed the profiles of more than 3,500 registered sex offenders in the state. The day before, a Louisiana bill forbidding registered sex offenders from using social networking sites was approved by a state House committee. (A similar bill was signed into law in Illinois in 2009 and put on hold in California in 2011.) Late last month, Match.com, eHarmony and the Spark Networks signed a “joint statement of business principles” to attempt to screen out registered sex offenders.
First, to the legal concerns: The ACLU filed a lawsuit in response to an earlier version of the Louisiana law, which seemed to apply not only to social networking sites but to most of the Internet, claiming that it was “overbroad” and would infringe upon “free speech rights under the First Amendment.” It was already signed into law but was struck down in February on the grounds that it was unconstitutional.
OK, so banning sex offenders from accessing most sites on the Web is unconstitutional, but what about banning them in more limited ways? Constitutionally speaking, where can the line be drawn? There are already strict restrictions placed on where sex offenders can live in the real-world — how far can we go in limiting their existence in the virtual realm?
Those questions are being sorted out on a law-by-law basis, says Ruthann Robson, a professor at CUNY School of Law. The revised version of the Louisiana bill more narrowly focuses on sites just like Facebook, but it could still include professional networking sites like LinkedIn, she says, and it’s still “infringing upon a group of people’s First Amendment rights.” She also underscores that it’s “creating a new crime [i.e. using Facebook] based upon their previous conviction.”
Courts have imperfect guidelines for evaluating these cases, she says. “If you’re convicted of a crime and you serve your time, there are very few things that extend beyond that — like some states have felony disenfranchisements and that sort of stuff,” Robson explains. “But when the United States Supreme Court upheld civil commitment and sex offender registries and all of that, they talked about it as civil and as not criminal.” Now, in evaluating whether bills like the one in Louisiana infringe on First Amendment rights, courts “don’t have an analogy, so sometimes they go toward criminal law, as though these people are in prison and as if this is part of punishment.”
Of course, many people believe that there are compelling reasons for that. As anyone who has ever watched TV news knows, some offenders use the Internet — whether it’s through chat rooms or a social networking site — to victimize children, but the threat is overblown, according to research from the Internet Safety Technical Task Force. Bullying poses a greater threat online than sexual solicitation, and children’s greatest threat of sexual abuse comes from someone they know — a relative or family friend — not from a stranger on the other end of his or her Xbox. Still, protecting kids from predators with unprecedented access to them is important; there is no debate there. The question is how much good will be done by banning sex offenders from online venues populated with kids.
It’s too early to say for sure, as there isn’t any solid research. “We will have to wait years before we know whether re-offense rates change from the 10 to 15 percent that most long-term outcome studies show,” says James Cantor, a clinical and research psychologist and editor-in-chief of the scientific journal “Sexual Abuse.”
It’s important to acknowledge that these attempts are easily circumvented by those willing to break the rules: For example, to make it onto a gaming platform, a New York state sex offender only has to create a new username that officials don’t have on file. Sure, it’s now a crime to do so — but so too is abusing children. Similarly, the online dating sites are only screening out sex offenders who provide identifying information that matches what is on the registry.
A major concern, in terms of both effectiveness and fairness, is how some of these approaches inelegantly lump together all kinds of sex offenders. The Louisiana bill applies only to those whose victim(s) were underage, but the video gaming initiative does not, even though the aim is to protect children. The online dating sites, which are presumably aiming to help protect members from being assaulted on dates, target all manner of sex offenders (while still allowing in suitors with, for example, a domestic violence rap sheet).
“Not all sex offenders are the same, and it is usually a mistake to treat them as if they are,” says Cantor. The legal category can includes a wide range of offenses — from public urination to child molestation. That’s an extreme example — one signaling the need for registry reform above all else — but it’s also true that there are important individual distinctions in terms of the risks of re-offense.
Until we have more definitive evidence on these differences — which would require hard-to-come-by research funding — Cantor says, “These people would best be treated on a case-by-case basis: An offender who used networking sites as part of his offense would be banned, but offenders using them for pro-social purposes, such as participating in support groups, would be encouraged.” After all, these days so much normal social interaction happens online.
It isn’t just that Cantor disbelieves in such broad and ineffective restrictions but also that it might backfire. “One of the best ingredients in rehabilitating sex offenders appears to be helping them reintegrate into their community, not isolating them,” he says. “It’s when offenders feel that there is nothing left to lose — no job, no family, no place to live, no social contacts — that they can be most willing to flout the law and do something stupid.” In general, he says, the “‘one size fits all’ approach is often counter-productive as well as expensive to enforce.”
There are echoes here to the debate over the online classified site Backpage, in which there is general agreement over the goal of eradicating child trafficking but disagreement over how that can be achieved. In the case of restricting sex offenders from certain online venues, the question isn’t whether the aim of protecting children and adults alike from sexual abuse is necessary, but rather whether these are effective, beneficial and fair ways of going about it.
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Hey Cary,
I don’t even know what to write to you. I feel like writing out my life story is such a disaster. The thing is, most people wouldn’t think I’m such a disaster. I function amazingly. I’m 30, have my degree, work a job I totally love, doing something I feel is incredibly important, and I have children that I adore and adore me. When it comes to parenting or my job or even when I was getting my education, I had no problems. Those were and are all cake.
When it comes to men, I suck. I know that it stems from my dad abandoning our family when I was 2, a horrible stepfather who emotionally abused me and then tried to sexually abuse me at 15, and basically just a childhood full of bullshit. I just don’t really deal with that stuff, because I was sent to counseling as a child, and I feel like it was the only thing that kept me from turning into a hooker on a street corner in Vegas. It just seems ridiculous to dwell on the past. Plus, I think I turned out pretty good … but …
I am coming up on twice divorced. I got married at 18 and left him at 20. I was the 4.0 kid in high school, extremely shy, had never dated before, and getting married at 18 seemed like my best bet. He was emotionally abusive, so I left at 20. I had fallen crazy in love with another guy who didn’t want me once I left, and so I was single for a brief time. Then I met my current husband, fell crazy in love, we moved in together and got married within a year, and now here I am all these years down the road and we’re getting divorced. I consider him one of my best friends, but we made horrible marriage partners. Now we’re trying to live together, raise our kids, and have our own “modern family.” It’s going OK. Some days are great. Some days I want to stick a fork in my eyeball. We’re doing this because we think it’s not only best financially, but it seems unfair to punish our kids when we can get along and maintain the family unit.
Now, here’s my biggest problem. God. I cringe to write this. I fell in love with a very unhappily married man. Of course, I see him on a daily basis. Can’t escape it. Would totally get fired for seeing him. I thought he would leave months ago. Shocker! He hasn’t.
I just want to be happy, Cary. Oh my God, I so just want to be happy and I feel like the moment I get happiness then I go and do something stupid, mostly with a man, and fuck myself over again. I don’t know how to escape this. I’ve tried reading self-help books and I saw a counselor, whom I didn’t really like at all, and overall I think I’m an incredibly insightful and curious person about myself, but when it comes to actually NOT doing this shit, I fail. I can see myself doing it. I can admit to doing it. Then I go and do it anyway. It’s as if I have to learn everything the hard way.
I’ll take whatever advice you have. Lay it on me.
Sincerely …
Me
Dear You,
Here is one concrete thing you can do right now: Call a moratorium on all intimate sexual relationships. Stop seeing this married man. Conduct your relationship with your husband in a platonic way. Spend time alone when possible. Care for yourself and your kids. Do your job, eat, exercise, bathe, read, clean your house, pay the bills. Stay away from romantic relationships.
Do this for a set a period of time, say, three months.
Don’t worry about having any great insights during that time. Just give yourself some breathing room.
This may really help you. It may sound like a drag, or downright inhuman, but give it a try. For one thing, it will show you that you really can live without romantic entanglement. That alone will broaden your choices.
So just try it. And if you find you just can’t do it, that will show you something, too. That will tell you that you have lost the ability to choose whether to get involved with men or not.
While you are going through this period of conscious abstinence, you will want some help understanding your past and how it affects you today. You mention that you’ve seen counselors. I suggest you seek long-term psychotherapy, perhaps for a year or two.
Nobody can say exactly how your early experiences are affecting your behavior today. But it’s a safe bet that what you are going through is connected to your experiences as a child. The only way to really understand those connections is to take the time to unravel your past. It is a kind of learning. It involves experimentation, observation and adjustment, and then more experimentation and observation. The only arena to really practice this in is your actual life. So you meet with a good therapist and talk about what is happening, then you go out into your life and when you repeat your problematic behavior, you take note of that, and then talk about it, and together you evaluate what happened, and visualize new solutions, new behaviors, new ways to handle the same situation, and then you go and try that out, and report back. So it’s a long-term process. There’s a lot to learn.
Dwelling on the past may seem illogical until you consider the logic of the unconscious. The unconscious is not logical in a thinking way, but in a poetic or mythic way. It seeks dramatic solutions. It seeks poetic justice. Having been wounded, we seek out people like those who wounded us, not because we seek to be hurt again, but because the irrational, poetic, dramatic unconscious believes we can set things right if we reenact the past.
Cognitive-behavioral therapy can often help with this sort of thing. It helps us to find the thoughts behind this behavior. In choosing a therapist, ask about CBT, and whether the therapist uses it and thinks it may help.
Is it true that you need to be in a relationship, any relationship, no matter how perilous, chaotic, dangerous and unsatisfying? I think not. I think you can prove that to yourself by abstaining for a period of time. Then, having gained some breathing room and some self-understanding, having learned to take care of yourself, you can eventually begin to date again, choosing carefully.
Take baby steps. No rushing. You’ve got time.
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Dear Cary,
Well first of all, man, I’ve never done something like this, ever, so it’s kinda scary. But here’s the deal. I’m a guy and when I was in the fourth grade, age 10 I suppose, I was raped. I was raped by my dad. It wasn’t good, to say the least. I suffered some damage to my anal sphincter muscle then which is with me to this day. Of course, not as bad; it’s healed but there is a leftover consequence. After that happened things went from bad to worse in my family. All the gory details aren’t necessary for the purpose of this letter.
Anyway I think that I have suffered something like maybe post-traumatic stress from that time. I am now gay, and yeah maybe that’s an attempt at workin’ this whole sorry shit out. I’ve thought about that. In fact I fought being gay for most of my life because I really truly saw it as just fuckin’ evil madness. That’s true. In my earlier years I sorta made a pact with myself that I’d off myself if I ever acted on my impulses.
But it wore me down I guess and I gave in. Now I’ve talked to some counselors about this, really just hints and not the full story. For years and years I couldn’t even talk about it at all. But then I tried and no sooner than I’d start I’d break down and just sit there and bawl like a baby, totally unable to go on. And I was all grown up then. So I’ve never ever told anyone the full fuckin’ story from beginning to end. The thing about counselors is that in my opinion they are just doin’ their job, that they really don’t give a shit about me, at least in the way that I want. And I’d die before I’d ever tell a woman because they would just get all motherly on me and treat me like a child, a fuckin’ baby. No, I always figured that if I told someone, really told someone and not just throw out hints, that it would have to be a guy. I think that a guy would get it more and that I’d get the response that I want, which is basically, “Man! that fuckin’ sucks! I’m sorry you had to go through that shit!” End of story.
Now I want to know just why I have this overwhelming urge to tell somebody, to come clean? This fuckin’ urge drives me nuts. I always thought that when I found the right guy, Mr. Right, that he would be the guy I told. But I haven’t found that guy yet. I’ve thought about seeing another counselor and being completely open and honest when I do, but truthfully I have no stomach for that. I’ve had both good and bad counselors in my life. They’re not all good. Plus I’d be just another interesting, at best, case in their career. So like I fought being gay, now I’m fighting this maddening urge to really open up. I don’t know why? Talkin’ about the past can’t change it! It’s fuckin’ done with! I don’t want anybody to “do” something about it because nothing can be done! But it seems to haunt me all the time.
I now have this friend, a straight guy, whom, I guess, that I can say that I love. Not in a gay way. I’m not into him that way, but more like a brother. When I started coming out, especially at work, I had some good experiences and, of course, some bad. I found that my women friends could roll with it much better, but my guy friends had a real difficult time. Even though I told them straight out they would deny it and act like I was totally wrong. You see, I’m, as they say, “straight acting, straight appearing.” The trouble is that I figure that I’ve been gay since junior high. Some of my friends are now, at best, my former friends, but this guy whom I mentioned at the beginning of this paragraph stuck by me. Later when I tried to end our friendship because I figured that no straight guy could ever really get a gay guy, he told me to “fuck off, he was gonna be my friend no matter what the fuck!” Man, you can’t help but love a guy like that. But anyway, I’ve been thinkin’ about tellin’ this guy, this friend, my story, but I’m really really afraid of loading him down. I love the guy. I don’t want to do anything wrong here. So some days I feel close to tellin’ him but other days an alarm goes off in my head and says, “Don’t! don’t fuckin’ do it!”
If I really love the guy then I’ll do what’s best for him, not what may give me some relief. So my question or questions: Why am I plagued with this urge to open up, to spill my guts, to bleed in public? And: What should I do about it? Ignore it? Wait and see if our friendship can take it? You’ll probably say see another counselor. That truly is last on my list. I’d rather ignore and fight it than go through that shit again.
Well man, I appreciate your ear. And I’ll appreciate any thoughts on this fucked up story. You know, it’s pitiful but I think I may know the answer, man. I’ll see if you agree with me. But probably the right answer is: Just hang in there, keep your mouth shut, and find Mr. Right! Because it’s just not about tellin’ your story, it’s about finding love. Oh Jesus! What a fucked up world!
Love ya, man. Keep doin’ good!
Sign me “Steve,” there are a lot of fuckin’ Steves in this world!
Oh P.S.: Now don’t think of tellin’ me to go straight! I had this counselor once who told me, “You’re NOT gay, you’re just hurt!” I thought, “Tell that to my dick!” No man, I’m gay, no doubt about it! And after all this time I’m just startin’ to be happy with it. It’s startin’ to feel really good.
Dear Steve,
We’re not just mechanical beings. We live in a moral and spiritual universe and you had a moral and spiritual crime done to you and so you’re in a moral and spiritual hell. And that’s the truth. And you’ve glimpsed what it might be like to start climbing out of that hell, and you want to climb out of that hell, but you’re scared, and I don’t blame you. There are a lot of cruel, ignorant, unfeeling people in this world who cannot deal with the truth of others’ suffering.
Some people could not deal with this. But then there’s this friend of yours. He is genuinely a good person. You can tell him. He’s not going to walk away from you. He probably already senses your pain. For all we know, he may have a story of his own to tell. So I say find a quiet, private place and tell your story. If it helps to write it out first, then write it all out and then read it to him.
He is not going to think less of you for telling him what was done to you, nor for feeling the pain in front of him and crying it out.
I’m walking a thin line here between sounding like I even pretend to know what you’re going through and just stating the facts. I think the fact is, once you tell your story you will be on a journey. Your life will change. You will see that as a part of humanity, you do have a moral and spiritual core, and it operates in powerful ways. That’s about all I want to say. The point is that we are not just mechanical. You share your story because life is not just about the mechanical, much as we’d like to stick to it being all mechanical. There is a moral and spiritual universe. We are living in it. When evil is done to us, it affects us, and we then are put on a course of correcting that effect. That’s where you are now. You’ve begun the process of correcting that evil, by writing to me. Now, I’m just a bystander, cheering you on. I’m shouting, Go, tell it, brother! Tell what happened! Tell it and get it out of you!
We use all these metaphors for the changes that happen as we tell our stories, and a lot of the metaphors don’t sound right. Of course they don’t sound right, because they’re only metaphors for what actually happens. But basically, there are reasons for us wanting to tell our stories; there is something that happens when we do that, and we do change, and life does get better, and I hesitate to try to put it in words because it will sound like more metaphors for things that don’t really seem real to you now.
I can say that I have walked through life with similar locked-up feelings and locked-up stories, afraid to even mention them. I had them locked up and I had some hazy notions of terrible things that would happen if I ever said them. But eventually life just got intolerable and I started saying some of them. And I felt weak and overwhelmed when I said them but I was in a safe environment so it was OK to crumple up in a ball for a little while; it was OK to whimper and sob. It is almost funny now, saying “whimper” and “sob” but that’s what it sounded like, just like a stupid little kid bawling. And it still happens. I’ll be talking and something will come up and all of a sudden I’m that stupid little kid bawling again, and I want to be strong, or stop bawling before someone starts laughing at me, but it’s a safe place and nobody’s there but my protector so I just bawl and then I learn another new thing, another layer, another vulnerability, another thing I’d pretended I didn’t feel or that hadn’t really happened.
If you trust this friend of yours then go ahead and tell him. I don’t think he’ll refuse to be your friend. But you may want to structure it somehow. Or you may want to go to a group like Sex Addicts Anonymous, not because you’re a sex addict, but because these 12-step groups have a structured approach to telling your story. You do an inventory and you share it with someone and it’s completely private. And you share your whole story. You don’t leave anything out. You go at it in a kind of thorough, almost mechanical way, just listing all the things. I haven’t actually participated in this group but I have a friend who has described the process to me. It might work for you.
But I say definitely share it either with your friend or in a structured 12-step setting. Once you do, you will feel better. You may find the world looks a little differently to you.
Whether you’re gay or straight is not an issue for me. The issue for me is that you’re walking around with this awful pain and fear and this awful memory and you don’t have to do that. You can choose to take a courageous step and just tell it and experience what it’s like to tell it instead of always keeping it hidden. You can get some relief.
You will probably feel some things; perhaps for a few moments it might feel like you are back there having it happen again, but that will pass.
On the positive side, you might also experience the emergence of another part of you, the strong part that could reach back into time and protect that poor kid; you might feel in your body the strong part of you that would have fought this off if you could, or would fight it off today. You might also connect with who you were before this happened, and you might find that part of yourself is still there with you, the part of you that you love, that innocent kid.
It might be scary how strong the feelings are. And you might for a few moments, as I said, feel like you’re literally re-experiencing it. But that will only be memory. You will be safe. Just make sure you find a private place where you can talk with your friend and won’t be interrupted for an hour or so, where you can experience whatever you have to experience, and be accepted.
I say do it. Don’t hold it in. Just do it with someone you trust. And then, having said it, you can begin living your life with this event in mind, knowing how it has affected you, and how similar events have affected other young men. It may lead you in many different ways. You may want to make a private peace with it and move on, or you may find it gives you a purpose in life, that you want to work to help others, to give strength to others, to ensure that this doesn’t happen to them. You might find your best way to be useful in the world is to be a role model, and walk with your head held high, and do some good in the world, and redeem this experience, and help to ensure that other people have a place to go to tell their stories. That’s up to you.
The important thing is, you don’t have to live with this. You did nothing wrong. This is something that was done to you. You are innocent. You don’t have to keep it a secret.
Tell somebody.
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