A Survivors’s Reaction to SCOTUS Decision on Comstock

Cross-posted from GlobalShift.org under the title “SCOTUS Rules Congress Can Confine Sex Offenders Indefinitely”.

Individuals who have begun to worry about whether rights are steadfastly on the decline may have another reason to cite as justification. On May 17, the Supreme Court of the United States ruled on United States v. Comstock, a case challenging the Constitutional holdings of civil confinement for sex offenders. In a 7-2 decision, SCOTUS ruled in favor of the government, finding that Congress can keep sex offenders on the verge of completing or who have already completed their sentences behind bars indefinitely.
This is obviously a problem.

Before I get started on the numerous policy implications of this decision, it’s important to disclose a few things. Though I generally shy away from including a first-person perspective on my blog posts here, it’s necessary to express why my objectivity might be called into question. As any reader might have gathered from my previous posts (or, just reading my profile) I’m not a fan of sex offenders. I am, in fact, a survivor of sexual violence, and such experiences have largely shaped my activism with the Rape, Abuse and Incest National Network’s Speakers Bureau, and the message board AfterSilence. On a very raw, emotional level, I’d love nothing more than to see every sex offender on the planet rounded up and dumped into the ocean. But this is America, a country that was founded on the idea that preservation of liberty is key, and that includes liberty for morally bankrupt individuals like sex offenders.

And so that brings us to examining the troubling concept behind this
law. In 2006, then-President George W. Bush signed into law The Adam Walsh Child
Protection and Safety Act. Named for Adam Walsh, the six-year-old
whose murder in 1981 spawned the Center for Missing and Exploited
Children and launched his father John’s career as host of “America Most
Wanted,” the Act sought to create a national registry of sex offenders,
increase the criminalization for crimes against children, and allocate
more reliable funding for programs designed to assist children.

However well-intentioned the law, it was not above criticism. In
discussing the broad sweeping intentions, TheGuide editor Bill Andriette
characterizes the implications as creating a “legal apartheid.”
“The law aims at turning back clocks to the 1950s, when anyone
producing, publishing, distributing, or selling anything sexually
explicit– or even just foul-mouthed– risked years in prison,” he
writes in October of 2006. “As well, the law looks ahead: to a brave new
world wherein those convicted of sex offenses– in many cases, crimes
of thought or expression, or otherwise victimless– live forever-after
under a regime of legal apartheid, their lives and bodies subject to
total, arbitrary, and intimate state control.”
Particularly given that the Act empowers what amounts to a suspension of
due process, the principle that the government must respect all of the
legal rights that are owed to a person according to the law, this is
concerning. Spelled out in the 14th Amendment, at its most basic
interpretation, due process is designed to protect citizens from the
government restricting rights, such as serving additional time for a
crime when the initial sentence has already been completed.

Yet the desire to deal with sex offenders with more severity is
understandable. Crimes that are sexually violent in nature offer unique
circumstances demanding a stronger remedy. Despite being the most
prevalent violent crime (RAINN estimates that, every two minutes,
someone in the United States is being assaulted) it’s also the most
under-reported of all violent crimes. Over 60 percent of incidents of
sexual violence are never even reported (of course, if they’re going to face
the possibility of prison time while their rapist walks free,
having their sexual history put on trial, or facing death threats for
reporting the celebrity who assaulted them, where’s the incentive?) and
the public
still promotes a myriad of stigmatizing rape myths that make the
culture even more hostile.
Paradoxically, there is also no real love for sex offenders in society,
either. The prevailing wisdom suggests that the recidivism rate for sex
offenders is unmatched by any other crime, though some
authors dispute the findings of the ground-breaking Canadian study
that first proposed a rate of 88.3 percent.

Carl Bialak of The Wall Street Journal argues that the numbers of
recidivism for child molesters and other sex offenders need to be
viewed separately.
“Yet their crimes, when they do repeat child abuse, are unusually
harmful, and their victims particularly vulnerable. Does that justify
the closer monitoring of child molesters after release, compared with
other criminals?” he opines in Jan. 2008. “Dr. Doren isn’t sure,
pointing out, for example, that convicted rapists are more likely to
re-offend in the years immediately after release, and more likely to
commit other violent crimes.”

Against the backdrop of murdered children such as Walsh, it becomes easy
to justify Draconian measures for the idea of feeling safe. But before
anyone rushes to express support for the idea of invalidating a
Constitutionally-protected mandate, it’s important to give an earnest
consideration of what’s involved. Given the current sociopolitical
climate that is already discussing the pigeonholing
of rights for undocumented workers and individuals accused of terrorism,
for SCOTUS to find in favor of a law that circumvents additional rights
is certainly troubling, as Adam
B of The Daily Kos writes.
“Why is this case a big deal? Because in accepting a broadened scope for
the Necessary and Proper Clause in empowering the federal government to
address concerns multiple steps removed from the Article I enumerated
powers, it allows an energetic Congress to address these issues of key
public concern without forcing the weighty constitutional amendment
process every time some new issue arises.”

From a rights’ perspective, the issue becomes more troubling with how
broad the definition of “sexual offender” has become. Depending on
the state, persons eligible for civil confinement or even more extreme
responses would be those caught skinny dipping (regardless of age,
striking fear in the hearts of seniors expecting to celebrate graduation
this month), urinating in public or “sexting“.
It means that individuals engaging in pranks rather than perversions
face the ultimate consequences as a result of a heightened law and order
movement seeking to criminalize any and all behaviors.
Adding insult to injury, civil confinements are also marked failures of
rehabilitation. These costly institutions more than triple the burden on
tax payers for the annual upkeep of an inmate, at a time when most have
a difficult enough time making ends meet for themselves. With little
managerial oversight, such facilities are incapable of achieving any
actual rehabilitative success.

“Finally, civil confinement centers like the one run by Liberty
Behavioral Heath Corp. in Arcadia, FL, and detailed by the Times, are
failures,” David Rosen writes for Counterpunch‘s May 17, 2007
edition. “Poor or no oversight is in place; offenders have access to
home-brewed alcohol, drugs are easily smuggled in, violence among
inmates is common and sex among offenders and offenders and staff is a
regular feature; and, worse still, little treatment takes place.”

Yet, the economic and political implications aside, I would be remiss in
failing to mention that there are also safety risks involved for past
or future victims of sexual violence. As we’ve witnessed time and again,
the
prospect of capital punishment does nothing to deter individuals from
committing crimes, and while the death penalty and civil confinement
are worlds away from each other, they are nevertheless
similarly-situated outcomes on the same disciplinary tree. Faced with
even more serious consequences, is it going too far to theorize we might
have fewer rape survivors and more murder victims?
That isn’t to say that something shouldn’t be done. Suggesting longer
prison sentences for sexual predators is a given (particularly since, in
some states, you’ll serve a longer sentence for cheating on your taxes
than you will for sexually assaulting someone) though it doesn’t go far
enough to address the obvious law and order deficit that’s present in
the status quo.

It’s also difficult because when arguing without another suggestion for
reform, critics of Comstock are locked into a sophistry of
defending sex offenders.
As someone whose life was devastated by sexual violence, I am incapable
of imaging a world where I would go to bat for any offender. But all of
my loyalty to advancing the anti-rape agenda aside, I am likewise
incapable of imagining a world where the rights for any of
us–undocumented workers, suspected terrorist sympathizers or sex
offenders–being reduced won’t likewise lead to a loss of rights for all
of us. What is rape, but the greatest denial of rights an individual
can ever know? To support this on a legal and political level would be a
betrayal of every principle that I, as a survivor and a citizen,
believe in.