Sexually Dangerous Can Be Imprisoned Indefinitely

By Kevin Gosztola

Flickr Photo by bobster855

A Supreme Court decision on Monday stated that federal official could hold people who are considered “sexually dangerous” indefinitely even if their prison terms have been served completely.

The idea of keeping sexually dangerous people off the streets is not a bad one until you think of the enforcement mechanisms. Who gets to decide who is sexually dangerous and who is it? Aren’t these the same people who go to work with politicians who themselves have committed sex crimes?

Justice Stephen Breyer wrote the majority opinion:

“The statute is a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned by who may be affected by the federal imprisonment of others.”

Justice Clarence Thomas dissented (not because he found indefinite detention to be a violation of one’s civil liberties but because he found it to be a violation of state’s rights):

“The historical record thus supports the Federal Government’s authority to detain a mentally ill person against whom it has the authority to enforce a criminal law. But it provides no justification whatsoever for reading the Necessary and Proper Clause to grant Congress the power to authorize the detention of persons without a basis for federal criminal jurisdiction.”

What exactly does it mean to be “sexually dangerous”? Is this strictly a designation based on a perceived mental illness by psychiatrists?

Text of the Court opinion, (posted here by Georgetown University professor and lawyer Jonathan Turley) states, “Congress could have reasonably concluded that federal inmates who suffer from a mental illness that causes them to “have serious difficulty in refraining from sexually violent conduct…would have especially high danger to the public if released.” Furthermore, it states, “Congress could also have reasonably concluded that a reasonable number of such individuals would likely not be detained by the States if released from federal custody.”

The argument appears to be that the federal government must intervene and do what state governments are not properly doing. Yet, it’s hard to believe that there is any place in the United States where government is not tracking sexually violent predators — people who would most likely be designated as “sexually dangerous.”

Under Megan’s Law, all 50 states are supposed to have laws that require sex offenders to register with police and report where they are living after leaving prison or when being convicted of any crime. The public also must be able to access this information.

However, a distinction should be made: This decision probably has more bearing on sexually violent predators and little bearing on sex offenders. While research polls and reporters may rarely differentiate the two and while the public may not either, there is a definitive legal differentiation that is made by the Sexual Violent Predator Act of 1995.

Sexually violent predators” are strictly people deemed to have a mental disorder that would lead them to “re-offend.” It “requires anyone convicted of two sexually violent offenses to undergo a psychological evaluation to determine if a mental disorder makes it likely they will re-offend. If they are classified a [sexually violent predator], the district attorney can file a petition to commit. If a court or jury finds evidence is strong, the person may be committed to a secure state hospital for an indeterminate amount of time.

The Supreme Court decision reinforces public attitudes toward sex offenders (which are probably similar if not more lenient than attitudes toward sexual predators). A Gallup poll in 2005 found that at least two-thirds of Americans support the use of the registry to track sex offenders and have little sympathy for arguments against the registry that would suggest the lists would lead to harassment of people.

Presumably, the same group that expressed little concern about the registry is the same group that is significantly afraid of child molesters in their community. The poll found two-thirds think a convicted child molester probably lives in their neighborhood. And, even more important is the fact that this Gallup poll found that 65% think sex offenders (or child molesters) cannot be rehabilitated.

There is little concern for the rights or civil liberties of anyone committing foul sex acts.

It’s not surprising that Americans would be so afraid that “sexually dangerous” people are out there waiting to get them or believe that offenders or predators could not be rehabilitated. Popular shows like all the versions of “Law & Order” (especially “Law & Order: SVU”), all the versions of “CSI,” and any true crime show on television sensationalize the danger of “sexually dangerous” criminals.

So, does this decision hold any implications for politicians who may use their money and power to seek licit and illicit pleasures?

Republican and former U.S. Representative Donal “Buz” Lukens of Ohio was accused of “fondling and propositioning a young woman who worked as an elevator operator at the Capitol. He was jailed in 1988 for paying a 16-year-old girl to have sex with him and was convicted the next year of having sexual relations with a 14-year-old girl. Maybe this is not the behavior of a sexually violent predator but certainly a predator. Yet, he is now retired and not serving time in prison.

Democrat and U.S. Senator Brock Adams used drugs and alcohol as aids in sexual abuse of female employees in 1992. He drugged and raped his employees, according to eight signed statements. Adams was not charged. Is this because of his social status? Wouldn’t anybody else have been sent to jail and possibly been labeled mentally ill?

Democrat and former U.S. representative Mel Reynolds engaged in a sexual relationship with a 16-year-old campaign volunteer during a 1992 campaign and was convicted of 12 counts of sexual assault, obstruction of justice and solicitation of child pornography. If he committed another sex crime and went to prison, would he be deemed a sexually violent predator and held indefinitely?

Former Republican mayor Philip Giordano had a prostitute arrange meetings with her daughter and niece so he could have oral sex. The girls were 8- and 10-years-old. Giordano was convicted and sentenced to 37 years. Is there any chance that he will be deemed a sexually violent predator and held indefinitely?

It’s highly unlikely. And, that’s the problem with decisions like this.

Who gets to decide who is a “sexually dangerous person” and who isn’t? Most likely the Courts, which hold offices and regularly interact with city, state and federal officials. And quite simply certain people with the social status of holding public office will never be held to the same standards as average community residents who can be found all over this country.

Authorities would have to find that these individuals were immoral individuals and people who were not one-time offenders. It would have to be concluded that they could not be rehabilitated and most likely politicians with public personas would be able to craft this idea that they would never commit a crime again—that they might find Jesus or God and become puritanical and properly bourgeois once again.

Politicians have the ability to use their image to combat prosecution. They have the ability to pay off people. And, while it’s possible that politicians have been wrongfully accused of sexual conduct before, it’s also a huge possibility that politicians have used their power to intimidate women (or men depending on how evangelical you claim to be) and threaten them with violence if they tell anyone that they engaged in sexual abuse or conduct with one another.

The label of “sexually dangerous” can be attached to people like “terrorist” can be ascribed to people. Nobody can know if they will commit a sex crime again any more than they can know if they will commit a terrorist act.

What this decision does is impose morality (as the Supreme Court likes to do), further criminalize people, and increase suspect culture in America.

If the intention of this decision is to prevent sex crimes in the long term, it’s next to impossible to prove this will have any impact. The decision gets America no closer to solving the problem sexual predators present to society.


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1 Comment

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    September 16, 2010 at 10:17 am

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