THIS PAGE IS PART OF A FOUR-PART SERIES ON “SEX OFFENDER” HISTORY.

MONSTERS, INC.: A Concise History of “Sex Offender” Laws

By: Derek W. Logue
December 18, 2012

INTRODUCTION

In order to fully understand the current wave of “sex offender” legislation in the United States, it is important we take a look at the origin and evolution of these laws and examine the influences that created the current structure of sex offender legislation. The influences and forces driving current sex offender legislation is not merely a product of any single event in history or any single force in our culture. The current prominence of sex offender laws in our country is a result of numerous influences, both recent and ancient, and at times, of seemingly contradictory sources, such as religious and nonreligious influences like social Darwinism.

Much of our historical knowledge behind the origins of current sex offender legislation can be found in one of two comprehensive historical books, “Moral Panic: Changing Concepts of the Child Molester in Modern America” by Philip Jenkins (1998), and “Sex Fiends, Perverts, and Pedophile: Understanding Sex Crime Policy in America” by Chrysanthi S. Leon (2011). The former book traces the origins as far back as the late 1800s with the advent of psychiatry as a science, whereas the latter book begins its analysis with the sexual psychopath era of the 1930s. While both books come to different conclusions and theories, they both present a clear historical timeline that laid the foundation for current sex offender legislation.

The Progressive Era (1880-1930 AD)

Philip Jenkins mentions early in his book (p.12-13) that during the Middle Ages, missing and murdered children were often venerated as Saints, and a prevailing fear among Christian societies were of roving bands of Jews kidnapping children for ritual sacrifices. Throughout our history, at least as far back as biblical times, sex has almost always seemed to be associated with sin or evil. The villains of the Bible were generally be depicted as being sexually immoral, among other things. Even Israel and Judah were described as lusty whores who gave themselves to the men of the other
nations in the book of Ezekiel.

Sex crime laws have existed as far back as biblical times, with a number of penalties ranging from fines to death for various sexual acts considered deviant at one time or another in society. Sex acts considered deviant at one time or another: exhibitionism, voyeurism, abortion, bestiality, masturbation, contraception, consensual sadomasochistic activity, interracial relationships, homosexuality, heterosexual relationships between those not legally married to each other, certain sexual positions or techniques, such as oral or anal sex, a.k.a. “Sodomy” (Jenkins p. 13). Sexually appropriate behavior is indeed a cultural phenomenon.

For the most part, the regulation of sexual activity was motivated by the prevention of illegitimate childbirths, which created a burden on the public welfare system, while the harm caused was seen in economic, rather than psychological or physical, terms; virginity was an economic asset to both the young female and her family (Jenkins p. 25-26).

The Progressive Era (1880-1930 AD)

By the late 19th century, a new way of assessing truth and knowledge arose, what Michael Foucault calls the “new episteme,” which consisted of new ideas of evolutionary science, industrial progress, scientific racism, eugenics, and imperialism (Jenkins p. 27). The scientific studies of the era were significant because the deviated from strict religious explanation and focus, instead seeking to answer the questions of life from a purely human perspective. However, unlike the biblical “villains” that “turned from God”, these scientists still sought to preserve sexual morality. Thus, a number of sexual acts were still seen as improper and in need of strict regulation.

The first book to inspire people to study sex crimes was “Psychopathia Sexualis” by Richard von Krafft-Ebing (1886). However, even around this time, some of the myths that persist even today about sex offenders were already forming in the minds of society. In the US, scares of STDs, rampant pederasty, and child prostitution were already becoming mainstays in news reports, focusing primarily on girls. Religious and feminist groups were focusing their attention on male offenders, and the myth of victims unprotected by the legal system was already beginning to surface. By this time, the terms moral leper, wild beast, human gorillas, and sex killers were already in use in the media (Jenkins p.27-28)

Prior to 1870, sex crimes were rarely depicted in the media, but in the 1880s, to sensational stories help to cement our fascination with the “sex killer” – HH Holmes and Jack the Ripper. The term “Ripper” was used to stereotype sex offenders for many years to come. With this sudden fascination with serial killers and “sex fiends” came increase reports from the media, peaking in the early 1910s. During this time, the modern stereotype of the sex offender as a dirty old man/stranger on the prowl to seduce children with toys were candy was already starting to take shape (Jenkins p. 34-
38).

Jenkins attributes the use term “sexual psychopath” to the title of the Krafft-Ebing book and the misapprehension of the meaning of the word psychopath. It was originally used to denote the act of committing sexual immorality without remorse, and early on in its use was actually directed at immoral women (Jenkins p. 38-39). This term was eventually morphed into its modern form and popularized during the sensational 1924 Leopold and Loeb child murder trial (Jenkins p. 47). The term sexual psychopath would gain control over the term “mentally defective” as the primary description of those convicted of sex crimes.

Between 1905 and 1915, the positivist movement began influencing the criminal justice system. Indeterminate sentencing was introduced, and in Massachusetts, the Briggs Act allowed for habitual offenders to be civilly committed. The Mann Act of 1910 created the FBI, while focusing efforts on forced prostitution, white slavery, and venereal disease. Unsurprisingly, legislators took notice of the media influence and utilized it to further their political careers (Jenkins p. 40-41, 44).

Another influence in our society was the Eugenics movement, which sought to control culture through selective breeding, i.e., forcefully sterilizing “defectives” such as criminals, the insane, and the handicapped. During this time, castration was seen as a viable option, as “perversion should involve the loss of all rights, including the right to procreation.” The practice was upheld by the US Supreme Court in the Buck v. Bell decision of 1927; the Eugenics movement was eventually struck down in the Skinner case of 1942, primarily the result of the Nazi use of Eugenics practices.” (Jenkins p. 42-43)

In the 1920s to early 1930s, law enforcement and media focus had shifted primarily to prohibition and gangsters; a number of sexually illicit acts, especially homosexuality, were increasingly tolerated in society; Moral activism was increasingly looked upon with suspicion, seen as outdated and fundamentalist/ fanatical; a rift between rural and urban values became defined; medical advances relieved fears of STDs; and lessened immigration relieved racial fears. Jenkins attributes the convergence of all these factors as a cause for the “low ebb” of predator panic.

The Sexual Psychopath Era (1930s-1950s)

The 1930s was a time of unparalleled economic and instability, so it is little surprise that a series of high profile cases helped create an appearance of a violent crime wave. Sensationalized cases such as The Lindbergh baby kidnapping, the Cleveland Torso Killings, and Albert Fish solidified the fears over “sex killers”. The prominence of a national media helped to make previously localized crimes a nationwide concern (Jenkins p. 49-52). As a result of these laws, a number of reactionary laws and strategies designed to handle the perceived crime wave, including civil commitment laws, lists of known sex offenders, and castration laws were introduced (Jenkins p. 80-82, Leon p. 46).

The Leopold and Loeb child killer trial helped establish the role in the psychiatric profession in sex offender management. A key figure in shaping the image of the “sexual psychopath” was J. Paul De River, who is credited with establishing the nation’s first “Sex Offender Bureau” in 1937. De River created a series of “training” casebooks which solidified the “bogeyman” view of sex offenders. The director of the newly formed FBI, J. Edgar Hoover, played a major role in making sex crimes a major focus of sex crimes across the US; Hoover propagated the “Stranger Danger” mantra. The influences of De River and Hoover foreshadowed a growing rift between the academic mainstream and popular commentators in shaping sex offender policy (Leon, p. 38-42, Jenkins p.55-56).

“Sexual Psychopath laws” were an interesting mix of treatment, punishment, and reproductive control, strategies influenced by Positivism and Eugenics (Leon p. 48-49). However, the psychiatric profession in particular lost influence over the direction of sexual psychopath laws and even the definition of the term “sexual psychopath”. Experts noted the term “sexual psychopath” was overbroad, vague, and subject to abuses. The general public made no distinctions between a minor offender and a “sexual psychopath”; popular thought trumped the psychiatric experts in influencing laws and policies. Ultimately the psychiatric profession lost its ability to influence public policy, leaving few actual experts to continue work in the field (Leon p. 42-43).

There were a number of criticisms of the sexual psychopath laws, and civil commitment in particular was a primary concern. Some of the treatments of the time may have caused more harm than help, and some of the therapies of the time, such as psychosurgery and electroshock therapy, are outdated by modern standards. Legal experts were concerned over the mix of civil and criminal sanctions, compromising legal definitions of guilt and responsibility, and allowing criminals the opportunity to escape penal sanctions. There was little actual treatment provided, and even the very term “sexual psychopath” was not a concrete definition in the psychiatric profession; the term was defined more by the general public and the legal fields than by psychiatrists (Jenkins p.90-91).

Leon’s book makes note despite the increased public scrutiny and legal sanctions proposed on sex offenders, there was little change in overall arrest and incarceration rates during this period. Leon peculates a major reason why there was little change was the gap between public perception of the monstrous sex fiend and the minor or “nuisance” offenders that regularly appeared in court. While there was little research on crime trends of the time, many of the experts of the time argued against the crime wave theory (Leon p. 45). Leon concludes “moral panic alone” is not enough to shape the proliferation of sex crime laws in the modern era (p.53).

The Rehabilitative/ Liberal Era (1950-1980)

During this time of social instability, the notion of the “monstrous” sex offender was challenged by a public now distrusting of authority. A prevailing fear among whites had been the “black rapist”, and there were many instances where law targeted minorities unfairly, such as in the infamous Scottsboro Boys rape trial, where all but one black boys were sentenced to death for raping a white girl despite no evidence of wrongdoing (the case was eventually overturned by SCOTUS). Cases such as the execution of Caryl Chessman highlighted the excesses of the so-called Justice System (Jenkins p. 95-98, Leon p. 70). Thus, the civil rights movement played a role in shifting public views of the sex offender.

The shifting view of sexuality was still influenced by research. Perhaps the most influential man of that era was Alfred Kinsey, who performed a comprehensive series of studies on male and female sexuality. Kinsey’s famous reports opened a dialogue over sexuality in America, forcing it to reassess the sexual psychopath stereotype—were sex offenders truly monsters or more like the rest of us? (Leon p.55). The term child molester rose to prominence as a term to describe “minor interference” instead of force or violence. It soon became a catch-all term for most non-violent acts between adults and children. Kinsey’s reports stated not every child molester is a “pedophile”. The psychiatric profession raised a call to standardize the definition of a “pedophile”, which had no set criteria at the time (Jenkins p.98-102).

The end result was most sex offenders were seen as people to be pitied as “sick” people. Those who committed non-violent sex crimes were seen as mentally immature rather than the calculating, manipulating monster depicted in the sexual psychopath era. Some researchers also recognized children can have sexual thoughts and feelings and can even be active participants in their own molestation; in addition, there were challenges to the notion even a single act of molestation could scar a child for life (Jenkins p.102-105). Sex offenders were portrayed less negatively in pop culture; works such as The Mark (book 1958, movie 1961) questioned if law enforcement and social ostracism policies were interfering in the rehabilitation of sex offenders. In addition, pop culture also played a role in propagating the belief that children could be sexual beings, such as in the book Lolita (Jenkins p.106-108, Leon p.56-57). The distrust and skepticism of law enforcement and the government also led to the view that labels of deviance were more about propagating a moral value than about the inherent qualities of a person (Jenkins p.109)

This change in view was not universal, of course. There was still a belief in the “escalation theory”, in which petty offenders would graduate to committing more serious offenses without intervention. In the 1970s, Feminist and Victim Advocates were growing in influence in raising public awareness about the harms of rape and child abuse, which extended into child sexual abuse. In addition, pornography was singled out as a primary cause of deviant sexual behavior. The combined renewal of the focus on sexual abuse and the rise of Moral Conservativism helped form a collaborative effort between Religious conservatives and Feminists (Jenkins p.118-121, Leon p.62-68).

During this era, civil commitment was still the primary tool to address sex offenders, although castration, registration, the death penalty, and pornography bans were utilized as ways to address sex crimes (Leon p.67). Civil commitment laws were widely used, but were more narrowly tailored and limited rather than expanded. California renamed the sexual psychopath law, reflecting the view that the term was outdated (Leon p.71). In California, for example, those sex offenders deemed most amenable for treatment were sent to civil commitment rather than prison; commitment centers were alternatives, not extensions, of prison. This was done more by case history review than by clinical observations. However, since most sex offender research was not on actual treatment of sexual deviance, sex offenders were civilly committed for “other” mental illnesses and were given little in the way of actual treatment (Leon p.78-80). Thus, it became a question of whether or not indefinite confinement can be justified if no treatment for sex offenders actually exists (Jenkins p.113, Leon p.80). Thus, calling this era the “rehabilitation” era is a bit of a misnomer since little actual research on and treatment of sex offenders was taking place.

Since treatment was rarely provided, sex offenders spearheaded what little treatment efforts existed during this time. For example, the sex offenders at California’s Atascadero State Hospital formed their own group meetings for weekly discussions on treatment; the staff at the hospital later utilized this “group therapy” approach as an efficient method of offering bare minimum treatment (Leon p.91). Some sex offenders and treatment providers tried appealing to the general public through comparisons to other addictions or other mental illnesses, or to a lesser extent, comparing the sex offender to other more serious behaviors (Leon p.59). These actions of those impacted by these laws were, in effect, forerunners of the modern sex offender reform movement.

Skepticism of the justice system eventually extended to rehabilitation efforts. Rehabilitation was seen as a myth, and a paradigm shift to a punitive “just desserts” doctrine was propagated by the government (Jenkins p.112-113). The Gay Rights Movement also fueled fears of “pedophile rings”, and the newly formed “Moral Majority” used these fears as anti-gay rhetoric until the AIDS epidemic provided a better avenue for exploiting public fears (Jenkins p.124-125). Pornography and obscenity as a cause for sexual deviancy became a primary focus in the 1970s, and a number of unconfirmed (i.e., bogus) statistics were cited to justify this fear (Jenkins p.145-147).

The creation of the National Man-Boy Love Association (NAMBLA) in 1978 was a primary cause for the fear of the pedophile rings. The media reported NAMBLA was connected to the Etan Patz disappearance, though no real evidence was ever found linking any member to Patz. Despite having no ties to any high-profile cases at all, NAMBLA became an instant target, and in 1981, after a high-profile child murder in Atlanta, NAMBLA members were rounded up in an operation called “(Chicken) Hawk”. Though the Gay Rights Movement denounced NAMBLA, NAMBLA was still used as a convenient anti-Gay platform (Jenkins p.158-160).

By 1980, efforts at rehabilitation were all but abandoned, and the “monster” image of the sex offender made a comeback, setting the stage for the current era of punitiveness and incapacitation.

The Containment Era (1980-Present)

The current era of punitiveness began the same as the Sexual Psychopath Era did in the mid-1930s—through a series of high-profile cases.  The 1979 Etan Patz disappearance in NYC, the John Wayne Gacy serial murders, and the 1981 murder of Adam Walsh in Florida helped fuel the fears over missing and murdered children (Jenkins p.132-133). The fear of the “pedophile ring” likely helped fuel the other great fear of the 1980s—the “Satanic Ritual Abuse” (SRA) panic. The McMartin case in particular fueled the public fear and imagination; the term “McMartin” became shorthand for focusing on and elevating the victims of sex crimes. These events formed a simple but effective rallying cry—“treat the victim, punish the offender” (Leon p.147).

“Single issue” Victim advocates (like John Walsh) and Feminist groups dominated the debate over sex offender policy. Feminists moved from the margin to the mainstream as more “palatable” groups of women, the “housewives” and “angry grandmothers”, joined the call on a war on “child molesters (Leon p.149). Society’s League Against Molestation (SLAM), a single-issue group formed by a prosecutor and a mother of a murdered child, was one of the first advocacy organizations designed to use the media to pressure the government to punish, not treat, sex offenders (Leon p.150). Celebrity advocates like Walsh, who founded the National Center for Missing and Exploited Children in 1984, were propagating inflated and unverified statistics which were largely unchallenged but influential in creating public policy (Jenkins p.128-129, 132-133).

The level of influence of these groups is unparalleled. Unlike other eras, even the Sexual Psychopath Era, there was no room for debate. Any dissention from the dominating Feminist/ Victim Advocate view was seen as “pro-offender” and implied “anti-victim”. Experts of the past like Kinsey were derided as “apologists for sex offenders”. Even other victim groups were ignored if they did not adopt the dominant theory. Reason could not override the invocation of “victim status”; if you question the dominant view, you are “devaluing” the victims. This effectively silenced and criticism of these movements (Leon p.154-159).

The era marked the return of the “sexual psychopath” view. People no longer differentiated between petty offenders like exhibitionists and the more serious offender types—all sexual deviant acts were equally traumatic to victims. Definitions of abuse were broadened to include anything that made a person feel’ uncomfortable’, such as hearing sex talk (Jenkins p.130). Men, as a whole, were cast as potential predators, and the “patriarchal family” was seen as a source of exploitation. The term “molester” was expanded in definition from repeat offenders to include single acts; even a brief sexual act with a willing participant was deemed to cause irreparable lifelong harm (Jenkins p.135-138). Unlike previous eras, the image of the monster was unanimous. That means the familial offender (“Uncle Al”) was “re-viewed” as a monster. The familial offender I no longer dismissed as a nuisance or given treatment, but given the maximum punishment in order to “do right by the victims.” Treatment resources should only be used on victims, not offenders (Leon p.152-153).

Coinciding with this shift in societal beliefs was the trend of media sensationalism. Tabloid talk shows, sensational coverage of news stories on both the national and local levels, “Made for TV” movies with child abuse themes, and “true-crime” documentaries  all played major roles in establishing the monster paradigm. An explosion of awareness campaigns like the practice of posting missing children on milk cartons helped keep awareness of sexual abuse in the public spotlight (Jenkins p.138-140).

The awareness campaigns seemingly coincided with the boom in sex offender incarceration rates. Prison admission rates for sex crimes in California from 1940 to 1971 dropped 48%; from 1971-1984, there was a 486% increase in prison admissions. Leon points out this increase coincides with an overall trend in incarceration rates and was not unique to sex offenders (Leon p.168). Leon attributes at least a part of this trend to lengthier sentences for those convicted of sex crimes, as well as the increase of arrests for “other type” of sex crimes, though no theory has fully explained the spike in these numbers (Leon p.163-167). The shift in authority from judges and parole agents to prosecutors in determining punishment has also played a role in shifting incarceration rates (Leon p.177). Leon concludes “Rather than serving as a special example of our extreme and particular hatred of sex offenders, these new laws capitalize on public concern about sex offenders but were facilitated largely by the same forces that allow the passage of measures like three strikes: distrust of government, the decline of experts and lost faith in rehabilitation, the rise of harm over dangerousness as an evaluation of offending, victim valorization, and the rise of single issue advocates” (Leon p.172).

As Satanic Ritual Abuse and its relative, the Repressed Memory, fell out of favor, there was a brief backlash against victim advocates. The two theories had been propagated by celebrity advocates like Oprah Winfrey, who declared herself an incest survivor. But it was later determined the “repressed memories” recovered during therapy sessions, much like many of the child statements in the SRA cases, were the result of suggestion and manipulation by those asking the questions. People who endured repressed memory therapy all reported the exact same scars and events, and many also reported UFO abductions. Believe the children campaigns taught that even stories of abuse by cartoon characters, abuse in flying machines, or alligator pits was to be believed without question. Child advocate Faye Yager was even on trial for child maltreatment, accused of being a “child abuse vigilante” who “bullied” children to report their fathers for SRA (Jenkins p.172, 177-186).

The debunking of the SRA and “pedophile rings” merely shifted public focus back to the individual sex offender. Studies conducted during the late 1980s focused on the repeat or “serial offender” led to the belief that sex offenders commit astronomical numbers of crimes over their lives. The term “pedophile” became a word used to denote anyone who has ever had sexual contact with a minor; this suggested the sex offender was compulsive, obsessive, violent, and resistant to change (Jenkins p.190-191). The term “predator” had previously been used by the media to denote financial scandals, but was applied to sex offenders in the early 1990s. Stranger-danger was re-emphasized over teaching anyone can give a bad touch, the pop culture depicted the sex offender as a “lone predator” in the darkest possible tone (Jenkins p.193-197).

In 1990, the sensational trial of Earl K. Shriner led Washington State to pass a comprehensive “sexual predator” law. Washington’s legislature passed sex offender registry and community notification laws, and long-term indefinite sentences coupled with civil commitment laws (Jenkins p.191-192). The view of the sex offender as an uncontrollable monster than cannot be cured but contained supported an “anything goes” approach to dealing with sex offenders. While this idea was not unique to this era, the unanimous support and widespread dissemination of laws are unique to
the Containment Era (Leon p.113-114).

The novel approaches implemented by the states would eventually reach national levels. President William Jefferson Clinton placed himself at the head of the forefront of the anti-sex offender movement. Clinton discussed the Polly Klaas murder case in his 1994 State of the Union address, and later that year, he signed the Omnibus Crime Bill of 1994, which included some dramatic departures from centuries-old Anglo-Saxon principles of due process and foretold the degradation of the human rights of sex offenders as a degraded class. This bill it expanded the tools for prosecutors in federal sex trials, allowing evidence of prior sex offenses by defendants, even if there was no conviction or even a charge related to the prior accusations; ironically it was the opposite of the “Rape Shield Laws” which prevented defendants from using the histories of the accused as evidence of dishonesty (Jenkins p.196-199).

A number of “memorial” laws or laws named after murder victims became vogue; in 1994, the Jacob Wetterling Act passed on a national level, while New Jersey’s Megan’s Law (public registry) and Illinois’s Zachary’s Law (Internet Registry) were passed on a state level. Meanwhile, revised civil commitment by virtue of a lower standard of “mental abnormality/ personality disorder” was upheld by the US Supreme Court in Kansas v. Hendricks. (Jenkins p.199-201).

Registration and community notification laws made the public participants in the supervision of sex offenders. This is a very dangerous precedent. Sex offenders became targets of overt acts of vigilantism. Family members of those impacted by these laws and even victims were endangered by sex offender laws. These actions have been justified by the perceived extreme harm caused by offenders, their immunity to treatment and reform, and the danger posed to children (Jenkins p.199-200, Leon p.183-185).

The 2003 Smith v. Doe decision set a dangerous precedent. Along with the Kansas v. Hendricks decision, SCOTUS made the claims that sex offender laws were “regulatory” in nature, and therefore the Constitutional safeguards do not apply. This argument has been used to justify a myriad of innovative legislation such as residency restriction laws. In 2006, the federal government signed the Adam Walsh Act into law, which has heralded as a program that in theory would set a uniform standard for sex offender laws across the country. In practice, the Adam Walsh Act has made the laws more complex and created more unintended consequences. Courts have begun to see the dangers of current sex offender legislation in recent years, and a number of courts have limited or overturned these laws. A number of grassroots organizations like Reform Sex Offender Laws (RSOL), Sex Offender Solutions and Education Network (SOSEN) and even this site, Once Fallen, have brought individuals together to address the problems of the current, unprecedented problems of sex offender research.

CONCLUSION

It is often said those who do not learn from history are doomed to repeat it. In the case of combating sex offender legislation, historical trends provide us with a pattern of problems and solutions. Each wave of predator panic has held the same basic belief—the image of the sex offender as an “incurable” “monster” complete with ominous-sounding terms like “sex fiends”, “sexual psychopaths”, and “sexual predators”. The monster mantra justifies novel approaches to addressing sex crimes to isolate and contain the sex offender. On the opposite end of the spectrum is the wave of skepticism that follows a collapse of the monster paradigm. The pendulum swings between the sex offender as a nuisance or sick but treatable person and the incurable monster, though the pendulum tends to spend more time on the incurable monster side of the spectrum.

This article is merely a brief synopsis of the major events and trends in shaping the image of the sex offender and not comprehensive. For more information, I strongly suggest reading the two books mentioned in the introduction of this book. This article is part of a four-part history series on the sex offender. In the next chapter in this series, I will discuss the various influences in shaping sex offender policy.