Eric Berkowitz is a historian, journalist, and human rights attorney who represents refugees seeking asylum based on their homosexuality and status as victims of extreme sexual violence in their home countries. His books, "Sex and Punishment: Four Thousand Years of Judging Desire" and "The Boundaries of Desire: A Century of Good Sex, Bad Laws, and Changing Identities," examine the interplay between state power and the individual libido from the earliest human civilizations to the present day.
He spoke at Aspen Ideas 2016 as part of the Sex in America track. Below is his guest blog.
When “Josh” was 12 years old, he touched his younger sister’s genitals. “It was experimentation,” he later recalled, “and my sister was the victim.” Josh, however, played a greater price. His mother sought advice from a Christian counseling center near their Texas home, who then called the police. Josh was arrested and spent three years in prison for aggravated child sexual assault (all sex offenses involving kids are “aggravated” in Texas). Upon release on parole in 2003, he was placed on Texas’s online sex offender registry until 2021. His parents also were required to lock him in his room at night. If he needed to use the bathroom, he had to pound on the door until someone let him out.
Josh managed to do well at school until a list of local sex offenders was distributed to neighbors, after which classmates and teachers shunned him. Death threats later forced him to drop out of Texas Tech. His first job, in construction, ended when a co-worker threatened to throw him off a tower. As he drifted around the country looking for work, he racked up two additional felonies for not notifying authorities promptly enough when he moved. Years later, he found that taking his kids to school, attending parent-teacher conferences, going to the park, library, or most other places were also crimes. As a sex offender, he was considered a danger, even to his own kids.
Josh’s case is, sadly, typical. Baffling as it is, young kids—the very population sex offender laws are supposed to protect now—make up a substantial portion of those condemned as child predators. In about 39 states, juveniles are listed on sex offender registries, often for their entire lives. In about 20 states, prepubescent children are listed with violent adult sex criminals, putting them on the receiving end of society’s most hateful treatment. While precise data is unavailable, it appears that as many as 24,000 of the US’s 805,000 registered sex offenders are juveniles, and one-third of that population is 14 or younger. In 2010, for example, Michigan had 9-year-olds on its registry.
While Josh’s “crime” at least involved the unwanted touching of another person, many other youth sex offenders did nothing worse than expose themselves, play “doctor” games, or have consensual sex—what Human Rights Watch researcher Nicole Pittman called “normative” behavior and “experimentation.” And once on the lists, their lives are nightmares. The shame, the restrictions on every aspect of their lives, and the constant threats are more than many of them can bear. Even when they come off the lists, the Internet ensures that their sex offences still pop up. Not surprisingly, suicide among these kids is common.
How did this barbarity happen? When did youthful sexual play and experimentation—something young kids have always engaged in—become equated with adult sex crime? It started in the late 1980s, when several child abductions and murders sparked a panicked explosion of sex offender laws. The lists were expanded and put on the Internet, while the number of registerable offenses multiplied, as did restrictions on sex offenders’ lives. Add to this the prevailing (and later debunked) terror of remorseless juvenile “super-predators” roaming the cities and kids were swept up in the general hysteria. Another false idea took hold as well—that kids who transgressed sexually were the same as adult sex offenders, were impervious to treatment, and were driven toward lives as sexual predators. The fact is that only 1 to 7 percent of kids who commit sexual offenses will do it again, less than half the recidivism rate for adults.
But truth is the first casualty in sexual politics, and the net effect is that young kids often have more to fear from the law than they do from anyone else. And given that state and federal laws have mutated into a conflicting tangle of requirements and penalties, there can be no end to some kids’ ordeals. Rather than help these kids—as juvenile justice is supposed to do—the system is stacked against them.
What is to be done? Some compassionate prosecutors, such as Vicki Seidel in Michigan, now orchestrate their cases to result in pleas that keep kids off the registries. “The majority of kids I deal with have no business on the registry,” she said. “It hurts them rather than helps them. I think most kids can be rehabilitated.” Seidel is not alone: one study found a 41 percent decrease in the prosecution of youth sex cases following the passage of harsh juvenile registration laws.
This is welcome, but what we really need are changes to the laws themselves, and for that we need courageous legislators—something in very short supply. Pittman has testified against the laws before dozens of state legislatures. “Every single time, legislators tell me in private that they agree with me,” she said, “but they can’t do anything because they’ll lose their jobs.” In today’s charged environment, being “soft” on sex crime is a label even well-meaning legislators want to avoid.
Hopefully, as the human cost of juvenile sex offender laws becomes known, the humane treatment of kids caught in the system will be seen as an imperative. This is an idea that the influential attendees of the Aspen Ideas Festival can help to advance.