As anyone knows who litigates SORA hearings, reason and a dime will get you a cup of coffee. The “research,” endorsed by the Supreme Court, showing that sex offenders have a “frighteningly high” rate of recidivism comes from a magazine article. The more boring but reliable literature shows that sex offender recidivism rates are no higher than that of other criminals. Burglars, for example, are way ahead. But what’s the use of mere information in a time of moral panic?
So we when we heard about a book of essays criticizing the Megan’s Law regime, entitled “The War on Sex” (2017) Halperin & Hope, eds., we immediately snagged a copy. Alas, for all the footnotes and academic trappings, it’s basically a polemic. The hyperbolic title should have clued us. War on sex? Au contraire, everything from mega-billboards advertising underpants to the Supreme Court’s paean to gay marriage promotes sex as the key to meaning and happiness. A more accurate title might be, “There’s a War on ‘Sex Offenders’ That Should Worry Us More Than It Apparently Does.” But who’d buy a book called that?
The book’s premise is that beneath the apparent expansion of sexual freedom over the last 50 years, there lurks, like the picture of Dorian Gray, a simultaneously growing horror. It argues that phenomena such as the sex offender registration and civil commitment laws; the mistreatment of transgender prison inmates; the Vatican’s opposition to gender fluidity; the misuse of sex trafficking laws to oppress sex workers; and the policing of HIV-positive persons – are all part of a new war on sex. And because this war is “intertwined with racism, sexism, social inequality, and homophobia,” it “demands a coalitional response” from the corresponding social justice movements.
Several of the essays bravely grapple with the inherent contradiction. Social justice advocates want more protections for persons they consider to be victimized. But the resulting proliferation of criminal laws targeting domestic violence and hate speech, for example, has contributed to the carceral state, i.e., more men in jail. As one author argues, the effect of New York’s sex trafficking laws has been to arrest more streetwalkers – the very people the laws were supposed to protect.
The book is unfortunately full of sweeping assertions that are more ideological than reliable. For example, one author asserts without explanation that the Static-99, an actuarial instrument widely used to assess the risk of sexual recidivism, is based on homophobic research such as Nazi castration experiments. That’s inexcusably misleading, whatever the failings of the Static-99. Another author asserts that there are fewer white men on the sex offender registry because some jurisdictions don’t include incest offenders. We’d suggest checking that out before putting it into a brief.
As refreshing as it is to hear resistance to Megan’s Law, it’s unlikely that sex offenders will ever be the rallying point for progressive groups. There will never be a Sex Offender Pride parade. At best, progressives will protest the prosecution of people who aren’t really sex offenders, such as sexting teenagers or HIV-positive prostitutes. But where are these social justice warriors when a “real” sex offender victimizes one of their own? As often as not, picketing the courthouse to see that he doesn’t get away with a “lenient” sentence.
The book has brought home to us that our job isn’t to vindicate this or that group, but to insist on our clients’ constitutional rights, no matter who they are or what they’ve done or who they’ve done it to. As the great Rumpole of the Bailey said, we’re old taxis that stop for anyone in trouble. Although we’d never add, as Rumpole did, “however repellent.”