Uncle Sam is the perp, freedom & civil rights the victim in latest repressive US sex law
By Bill Andriette
Every few years since the late 70s, the US Congress passes another omnibus antisex law that scales new heights of repression, censorship, and vindictiveness. The "Adam Walsh Child Protection and Safety Act of 2006" is the latest in the series, and it looks both backward and forward. 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. 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.
The new law's name commemorates the 25th anniversary of the unsolved murder of a Florida six-year-old whose businessman father parlayed his son's death into a career as a Fox-TV crime-show celebrity. The act's provisions increase already draconian penalties with new "mandatory minimum" sentences for federal sex offenses-- some serious (child kidnapping, rape, and murder), many trivial (possessing a physique mag from the 70s with "lascivious" exhibitions of jockstrap-clad teens, or talking dirty with an undercover cop online). But in a way, the new penalties pale before the law's provisions for lifetime civil commitment (modeled on many already existing state statutes), which allow prosecutors to hold people who violate federal sex laws indefinitely after their prison terms if a court rules they might commit another sex crime in the future.
A focus of the act is federalization of the US's hitherto state-administered sex-offender registries, establishing new minimum standards of punitiveness, and a "Dru Sjodin National Sex-Offender Public Website." (Many of law's 707 sections are lugubriously named after murdered youngsters, though in this case the victim was 22 years old.) That site will show names, photos, and home addresses of people convicted of violating state or federal sex laws involving minors-- actual or virtual. For offenders, failure to register must be punished by a minimum of more than a year in prison, the new law directs states, on pain of losing federal crime funding. But crossing state lines or travelling abroad while unregistered can be punished by up to 20 years.
Kids in the crosshairs
The federal law covers juveniles as young as 14, and so runs roughshod over guidelines in some states aimed at shielding youngsters from registries' scarlet letter. A 16-year-old convicted of downloading kiddie-porn, or an 18-year-old Manhattanite who takes the train to Jersey City and has sex with his 16-year-old girlfriend will have to register for at least 20 years after leaving prison. More such teens are bound to wind up in court: the law funds at least 200 additional federal prosecutors to focus solely on federal kiddie sex cases.
Additionally, the law abolishes statutes of limitations on all federal sex felonies-- which means that a 15-year-old who takes a digicam video clip of his hard-on today can be prosecuted for the crime in, say, 2056, when he's 65.
"Recently the Centers for Disease Control, through a high-school questionnaire, learned that 46.7 percent of students are already engaging in sexual behaviors," notes L. Arthur M. Parrish, whose website (www.geocities.com/voicism), tracks US sex laws. "If caught, are these all to be tomorrow's registered predatory sex offenders?"
In an ominous suspension-by-diktat of Constitutional guarantees, the new law stipulates that persons registered under its provisions forfeit their Fourth-Amendment protections against unreasonable search and seizure. Offenders' homes, workplaces, cars, and computers are declared subject to police search anytime without cause or warrant.
That provision points up how registered sex-offenders in the US are ensnared in the law but outside its protection. The past year has seen at least five execution-style killings of registered sex-offenders in the US, tracked down over the internet. Vigilantes will soon enjoy a freer hand as registrants are forced to live in isolated areas. In November, California voters are set to approve a ballot measure requiring permanent electronic tracking of all sex offenders as well as banning them from living within 2000 feet (or more, if a locality chooses) of any school or park. The law will force most such persons into rural areas, where housing and jobs-- and protection-- are even scarcer than elsewhere. Similar provisions have or are being adopted by jurisdictions around the US.
The new federal rules, on top of additional state and local regulations, will prove a maze of legal tripwires that will be hard not to trigger. Did a bureaucrat misfile a form? Was a deadline missed because mail was delayed-- or stolen by an offender's conniving neighbors? Did a bus on which an offender was riding linger in traffic within 2000 feet of a school, as revealed by his implanted tracking chip or electronic GPS bracelet? (Or did the company paid to do the monitoring suffer a bug in its mapping software?) Did an offender fail a parole-mandated lie-detector test when asked whether he ever fantasized about teen sex? Any and all could be excuses to put registrants back in prison, after which they need never be released again.
By federalizing the US's sex-offender apparatus, the Safety Act completes what has been in process for a decade: the creation of officially constituted nether- class, facing constant vigilante terror, operating under separate laws and legal standards, and subject to "disappearance" at the state's whim. Together with intimate, personalized technologies-- nonstop real-time tracking, surgically implanted chips and other electronic tagging (funded in the new law)-- America's sex-offenders today are harbingers of where high-tech repression is heading for all targeted individuals or groups in the decades ahead.
Snaring people through pictures
Already, the new law's provisions threaten to make kiddie-sex criminals out of anyone dealing with adult erotic imagery by extending labyrinthine "child protection" regulations broadly to porn producers, filmmakers, and sex-related websites.
For some 16 years, US porn producers have been required to document the ages and identities of performers in porn, and to make those records available for inspection to the government. By law the address where records are kept must appear on every video box.
The new law extends record-keeping requirements beyond the primary producers of sexual imagery to "secondary producers"-- such as republishers or reposters. All must maintain detailed identity records on every model depicted, and make them available, continually, all day, every business day-- or face up to five years in prison, or up to ten years for a second conviction.
With the democratization of "publishing" wrought by the internet, the numbers of people potentially affected are huge. When it comes to hookup sites hosting sexually explicit photos, says J. Michael Murray, a Cleveland attorney who is litigating the matter on behalf of the swingers' magazine Connections, "to the extent that they produce any of the content, then they're covered; to the extent they don't and others produce and post it, they're exempt."
But the rub is that it all depends on what you mean by "produce."
Like ink on a blotter, the new law expands and extends the key legal terms having to do with record-keeping. A "producer" of sexually explicit images used to be the individual or firm that created the image. Now the threshold for "production" is someone who merely digitizes an already-existing image, or uploads it to a website. This broader standard would cover, say, personals sites that post images of guys looking to hook up. Under the new law, every "producer" must maintain elaborate proof-of-identity records for each person depicted, and show on every single web page on which images appear the address at which records are available for inspection.
As well, the law extends the coverage of the record-keeping requirements to make-believe activity. "Even Hollywood movies that have any simulated sex will have to comply with the record-keeping requirements," Murray notes.
The requirement that secondary publishers also maintain records can be expected to scotch future reissues of porn (or movies with merely play-acted sex) from the 80s or before. "Indeed, a re-publisher is required to keep records even where the initial publisher was not," notes Mark Kernes of the Free Speech Coalition, a porn-industry trade group. "So, for example, a collector of old photographs who digitizes 100-year-old French postcard images in order to post them on a website would commit a federal felony by doing so unless performer information could be reconstructed and organized in proper form-- obviously an impossibility."
Requiring continual redistribution to subsequent publishers of performers' real names and home addresses-- and other identifying details, such as social security numbers -- opens another Pandora's box. "Since federal law does nothing to protect the privacy of this information as it shifts among republishers, current law exposes performers to the dangers of identity theft, stalking, and worse," Kernes says. Moreover the law allows inspection not just by authorities, but by US attorney-general "designees"-- an opening, perhaps, for faith-based volunteers to conduct private "raids" on sex businesses. "To refuse to allow anyone who claims to be such a designee to perform a records inspection may be a crime," Kernes warns.
The law serves to hem all vaguely sexual imagery in so much legal barbed-wire that it become too dangerous to handle. The effect of the law, says Kernes, will be "to put more adult content producers at risk for federal prison sentences and fines, even though they deal exclusively in material made by adults, for adults."
But in reality, all edgy expression-- not just porn-- is under the gun. Another section of the Child Protection and Safety Act allows for prison sentences up to 20 years and fines for people who use "words" or "images" on the web that a court decides were intended to mislead a youngster into viewing material "harmful to minors"-- a vague standard that includes exposed breasts, the word "fuck," and other content you can't show on prime-time US TV.
While Rome burns
"Protecting our children from Internet predators and child-exploitation enterprises are [sic] just as high a priority as securing our border from terrorists," declared Speaker Dennis Hastert after the House approved the new law. But the child-protection fetish, like the "war on terror," is really a front for other agendas. When then-Secretary of State Madeleine Albright was asked on "60 Minutes" about the death of up to 500,000 children resulting from trade sanctions against then-Saddam Hussein's Iraq, she famously replied, "I think this is a very hard choice, but the price-- we think the price is worth it." It was worth it again this summer when the US blocked a ceasefire amidst Israel's mass bombardment of Lebanese cities and villages, causing some 1140 civilian deaths-- a third of them children under 12.
Politicians' fetish of kiddie victimization is partly a cover for what is the US's actual callousness. And partly it resonates with a media-driven frenzy that recalls the fascinated blood-lust shown by Southern lynch mobs, who were primed to kill black men over what were often imaginary "defilings" of white women.
Despite the gains of the gay movement and the battles for sexual free-expression, the Right (working with sex-queasy liberals) has gained one absolute victory in the last generation: proscribing and demonizing child and adolescent sexuality. From that utterly secure redoubt, the Right aims to reclaim the entire space of open sexual expression and free-speech won since the 1960s-- not to mention to turn back the clock on civil rights. The Adam Walsh Child Protection and Safety Act is a measure of how far they are succeeding.
Author Profile: Bill Andriette
Bill Andriette is features editor of The Guide