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.