Open season

Please note: This post concerns a sexual assault, and discusses it in some detail.

I'm opposed to the existence of sex offender registration lists, such as those created by what's commonly called "Megan's Law" legislation. They do an end run around due process by allowing governments to decree onerous new penalties  at will for crimes someone has already been convicted and sentenced for. They devastate the lives of people who have harmed no one or committed some extremely petty crime like public urination. They have far more to do with appeasing public hysteria by showing that the government is Doing Something then with actually protecting the public.There are very good reasons to be against these laws.

I'm not opposed to them because I think holding elementary school children down against their will and shoving your dick in their faces is harmless schoolyard tomfoolery.

A few days ago, there were a number of postings at various places online about 2 14-year-old boys in New Jersey who, after a decision by a New Jersey appellate court, had been permanently placed on the state's registered sex offender list due to a conviction for criminal sexual contact. The predominant response, including some from people I generally think quite well of, seems to be that it is not merely wrong that the boys would be put on a lifetime registry of sex offenders for this but silly or outrageous (scroll down a bit to the comments) that it is even being treated as a serious criminal matter at all, much less “criminal sexual contact.” The action for which the boys were convicted of a crime was, we're told again and again, something trivial, just a "prank" or "horseplay" or- in some cases- the sort of youthful character-building experience that, like vitamins and minerals and fresh air, is something a growing boy needs so that he doesn't grow up to be a complete pussy. The dominant view seems to be that's its the sort of thing that warrants a stern talking-to from dad, or at most some very minor legal slap on the wrist, not something that should be regarded as a genuine crime against the victims.

One of the things conspicuously absent from most reporting and commentary on the case is a thorough description of what actually happened. So, imagine this scenario. (The actual written decision by the court, which describes the complete incident, can be read here.)

You're in front of a local store when someone significantly bigger than you, who you have  never met, shoves you against a wall. He and his three friends then pick you up, forcibly carry you across the street, and threaten to beat you up. You attempt to flee but aren't fast enough, and they quickly catch you again. They pin you to the ground and hold you down while one of them beats and head-butts you. Finally, while you're still held immobile and helpless, one of them removes his pants and, nude below the waist, rubs his bare buttocks against your face while his penis presses against your lips.

That's the “horseplay” in question, except that in the real version it was done to two sixth-grade boys instead of an adult.

I agree that children today are frequently overprotected, though I think it would be more precise  to say that children  are overly “protected” from relatively uncommon or outright imaginary perils so that adults can feel good about how much they care without bothering with the more burdensome task of addressing actual or likely sources of harm. I also agree that there is a bias against boys in the educational system and much of the culture that treats perfectly healthy, harmless behavior and traits common among boys as if they were immoral, dangerous, destructive, or pathological. (Though, as we see here, the conservative Real Men contingent and I tend to differ somewhat on which category “elite group based on superior charisma, physical strength, social status, aggression, and adherence to gender norms intimidates, humiliates, and physically and psychologically abuses lower-status boys with the tacit or explicit approval of adults” goes under.) And I'm opposed to "Megan's Law" registration, for the reasons described above. So I'm sympathetic to some of the concerns raised by many of the people I'm talking about here.

But it was dismaying to see so many people on the same side as myself on the issue of sex offender registries make their case against offender registry laws by trivializing the violent degradation of a child.

And that is what this was. The fact that so many people are shocked at the idea of even making this a legal matter, much less a serious one, is a testament to just how normalized some types of violence are. Replace the 12-year old boy in the story with someone from a more protected group and this becomes immediately obvious to virtually everyone.  If 14-year old boys had done this to a sixth-grade girl- or to a grown woman, for all the hot air blown about protecting kids- that they had run into in front of a local store, virtually no one would have any trouble recognizing that such an act was an actual crime, and not a trivial one. I sure as hell don't think Radley Balko would be saying that the prosecutor should be fired for charging the perpetrators in the first place.

(Some people would object to charging the perpetrators as adults, arguing that they were too young and immature to understand the seriousness of such an act, but that's very different from the notion that there is nothing serious here to understand.)

The online tough guys in various comment sections bitching about how actually prosecuting this is a dismaying example of “political correctness”or the wimpiness of the modern age would be baying for blood louder than just about anyone. Cackling about the sort of “horseplay” the perpetrators might encounter in the American prison system would abound.

Opponents of registration like myself would still disapprove of it as a matter of principle in such a case, but I certainly don't think many of us would be holding such a case up as an obviously absurd and outrageous miscarriage of justice in the same category as branding a 16-year old boy as a lifelong "sex offender" for having consensual sex with someone a few months younger or prosecuting him for producing “child pornography” by photographing himself nude.

Now, part of that would be for strategic reasons- if you're trying to convince people on the other side of the issue to reconsider their position, "Registration laws can severely interfere with the lives of teenage boys who get their kicks by forcing their anuses and genitalia into the faces of frightened, struggling elementary school girls" is just about the least compelling argument imaginable. But it would also be sheer moral repugnance- the idea of a teenage boy chasing down a fleeing sixth-grade girl, pinning her to the ground, beating her, and shoving his privates in her face while she struggles is so clearly and repulsively not analogous to the sort of victimless crimes usually cited as examples of sex offense laws run amok that virtually everyone would recoil from the comparison.

None of this is surprising; violence against males in general simply don't bother most people the way  harms suffered by females do, and this is doubly the case if someone's genitalia is somehow involved. But in this case, a crime against adolescent boys isn't just taken less seriously then the same crime would be against girls or women; it's taken less seriously then the same crime almost certainly would be if it had been committed against a mature man. If a band of teenage boys had somehow seized men in their 30s or 40s off of the street and forcibly did to them what was done in this case, that would be considered- in the probably-unlikely event the victims reported it-  shocking, predatory behavior. The men they targeted would  probably receive more ridicule and contempt than sympathy, but no one would be suggesting that this was a case of normal, basically harmless boyhood hijinks gone a bit too far.

My guess- or at least my hope- is that a lot of this response is a knee-jerk reaction from people who didn't research beyond the initial news articles, which didn't describe the actual offense in detail and were laden with the sort of minimizing language common in media coverage of events like these. However, even the bowdlerized account in most of the media describes an incident that nearly everyone would have considered seriously criminal- and yes, sexual- if the victim had been anything other than a young boy.

(Yes, it's almost certainly true that the motive for the attack was not sexual gratification. The same can be said for many sexual crimes much more extreme than this one.)

If it had been, I'd like to think most of my fellow registration opponents would be able to make a cogent argument for why Megan's Law is not the solution by talking about issues such as due process, unexpected consequences, disproportionate punishment, the rehabilitation of juvenile offenders, or the dangers of public panic in the face of relatively uncommon but highly mediagenic crimes, instead of focusing on waxing indignant about how outrageous it is for people to claim that these poor, victimized fellows committed a sex offense when all they did was chase down, beat, and forcibly restrain a young girl so that they could drop their pants and rub their privates on her face.

This sort of thing has particular relevance to me as a libertarian, for reasons- which I might get to some other time- above and beyond the fact that it's a form of aggression that would be quickly recognized as criminal in other circumstances but is instead accepted or ignored. Popular attitudes concerning violence against men and boys are also, as people who've been reading this blog for a while know, a recurring focus of mine. But putting all that aside, the notion that a 12-year-old boy should have as much legal protection against being seized in the street, beaten, and forced into contact with his assailant's sexual and excretory organs as other people should not be an idea that one must be some sort of radical in order to accept.

I'm always tempted, when the issue of violent bullying comes up, to ask people if they think bands of hooligans should be allowed to storm their workplace or just grab them off the street and smack them around for a while. Nothing lethal or disfiguring or crippling, no guns or clubs or blades, just a mild beat-down that probably won't even break any bones- and, in this case, a few more exotic elements  Doing that to you should be legal, or at most warrant a few hours of community service and some harsh words, right? Simple self-respect ought to make a grown man recoil at the prospect of hiding behind the legal system's skirts when faced with something he considers so trivial that he expects elementary school-age children to take it.