The overpolicing of American sex

Rape and sexual assault often do not get the police attention they deserve in the United States, whether on college campuses, in the military or in major American cities. This isn’t arguable.

But sex is vastly overpoliced in this country, and this ought to concern us too. The combination of steroidal law enforcement, puritanical fear of the genitalia and a constant need for political scapegoats has led to ferocious police overreach on sex. The consequences are neither moral nor just. In fact, they’re frequently horrific. 

Sex offenders are commonly regarded as outcasts in the United States. This might change if it were more widely known that children as young as eight have been put on sex offender registries, where many will stay for decades, if not their entire lives. Some of the offenses that get minors listed are serious and (obviously) require a law enforcement response. But many, from streaking at a high school football game to consensual sex between randy teens, do not.

A Human Rights Watch report released last year documented the lasting damage done to kids put on these publicly available registries. Most are barred from attending school and restricted in their daily movements and where their families may reside and travel; their chances at employment are wrecked. Such ostracizing of minors must end.

But ways to punish kids for various sex “crimes” keep proliferating. Sexting is a common teenage pastime, but many states see no legal distinction between this act and distributing child pornography. Earlier this year police in Manassas, Virginia, got a warrant to photograph a 17-year-old’s erect penis so they could compare it to the photo he had sent his 15-year-old girlfriend. Fortunately a national outcry put an end to this inquisitorial prurience. (The young man still got charged with distributing and possessing child pornography and was slapped with a year of probation.)

This unwholesome propensity dovetails snugly with our national habit of prosecuting children as adults as often as possible.

But what about the adults — won’t someone please think of the adults? Sex offender registries in the U.S. have expanded massively, to about 747,000 in 2011, the last year of available data. It’s a lot easier than you might think to get put on a registry (for, say, public urination) and exceedingly difficult to get taken off it. But contrary to myth, the majority of adult sex offenders have not committed any offense related to children, and the rate of recidivism is lower than that for other offenses. One federal study from 2002 found that people with no sexual offense history are more likely to commit a sex crime than convicted offenders. But rational evidence is not a part of our punishment regime, where panic rules.

Leading the way in punitive excess is California, where roughly one in every 375 adults is a registered sex offender, creating an entire class of pariahs. This isn’t because Californians are especially sexually deviant. According to Chrysanthi S. Leon, a law professor and expert on sex crimes at the University of Delaware, it’s just because the Golden State set up its registry first, which means that pretty much every state in the union is heading towards this high density of officially stigmatized sexual criminals. That these registries have no visible deterrent effect on sex crimes, according to one recent Department of Justice analysis (PDF), doesn’t seem to matter.

We need reasonable off-ramps from these registries and must distinguish between those who pose a risk to children and those who do not. We might also knock the age of sexual consent nationwide down to 15, as it is in France and Sweden, while considering the German model where the age of consent is 14, but sex with anyone under 18 can be judged a crime if it is found to involve “taking advantage of an exploitative situation” — a far better use of judicial resources than our system of punishing everyone to the max.

There is mounting pushback against such overreach. The group Reform Sex Offender Laws (RSOL) launched in 2007 and has been honing its advocacy skills ever since. Still, according to Leon, who spoke at RSOL’s annual conference in July, the penal winds have not yet shifted — the California legislature saw nine new measures expanding sex offender punishment proposed last year — and vindictiveness and banishment are still our default settings for sex offenses.

Slightly less unpopular than sex offenders are sex workers, who populate a $13 billion-a-year industry that is also on the receiving end of police overkill — with disastrous results. A global analysis of more than 800 studies published in the medical journal Lancet earlier this year found that criminalizing sex work led to greater abuses endured by sex workers, and worse public health outcomes. Rhode Island, which accidentally decriminalized sex work, actually saw a dramatic drop in “forcible rape” offenses.

Even law enforcement campaigns that claim to criminalize only the purchaser of sex can rebound harshly on the usually more vulnerable seller. And purportedly reformist solutions, such as New York’s special courts for sex trafficking victims, are difficult to distinguish from the traditional punitive response, with prostitutes arraigned in handcuffs and sentenced to therapy. It’s a set-up that gives credence to the argument — as asserted by Melissa Gira Grant in her book “Playing the Whore” — that sex work should be regulated by labor and civil law rather than criminal law.

The ultimate act of sex policing, though, is coercive sterilization. Once wildly popular both in the authoritarian South and the progressive North, it’s a habit that our government has not fully kicked. Last year, journalist Corey G. Johnson reported that California’s prison system performed tubal ligations on 144 prisoners from 2006 to 2013, in violation of prison rules and without state approvals. (And whether informed consent has any meaning for such a procedure in a penal setting is doubtful.) In September, the California legislature unanimously passed a law banning sterilizations in prisons.

What’s behind our runaway overpolicing of sex? Weren’t we supposed to have gotten a lot less repressed and uncorseted since the 1960s and ’70s? To be sure, American obscenity laws have lost most of their power. And yet our puritanical weirdness about sex endures. We are, after all, an advanced, modern nation that offers abstinence-only sex education classes to millions of kids.  (It’s no surprise our teen sexual health indexes are notably worse than in peer nations that don’t waste taxpayer money on such nonsense.) 

It’s not all panic and doom. Prohibitions against LGBT sex are now rarely enforced, and the daycare center sex panics of the 1980s and early ’90s have sunk into ignominy, with prestige media such as The New York Times and The Wall Street Journal now palpably disgusted with all that those legal atrocities entailed — bogus expert psychologists, prosecutorial abuses, trial by media and the conviction of innocents.  

To repeat — and it’s worth repeating: Many serious sex crimes don’t get enough police attention. But stepped-up enforcement against sexual assault mustn’t spill over into overcriminalization of softer targets and already marginalized groups. Overly broad criminal law responses to new problems, such as Internet revenge porn, risk inflicting more misery than they alleviate and adding to our incarceration rate, which is more than double the peak rate of the former East Germany’s and fast approaching the peak rate of the gulag-era Soviet Union. In this punitive context, the expansion of criminal laws should be as precise as possible and only a very last resort.

Official denials aside, police departments tend to adjust their quotas to do what comes easiest to them rather than fight more serious threats to the society they serve. Teenagers, sex offenders, sex workers, queer and transgender people and prisoners too often serve as punching bags for politicos and prosecutors eager to show off their toughness and wholesome moral fiber.

Sex is only one of the many spheres of American life from which criminal law needs to retract its claws to make room for a less coercive social order. All societies regulate sex in some way, through custom, sanctions and rewards. Must American sexual mores lean so heavily on police and prosecutors?