Gruber previously published “The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration” with University of California Press.

In “Sex Exceptionalism in Criminal Law,” Gruber argues that treating sex crimes differently than other crimes is not natural or neutral but rather has a political history that should be examined.

Sex exceptionalism is the idea that sexual behavior and desires are seen as fundamentally different from other human behavior and deserve special treatment.

“There was this notion that the feminist position on rape was always more, more, more, more incarceration, more policing, more prison.” Gruber told The Crime Report. “But it was also even non-feminists who were just having a hard time talking about it and didn’t approach it like you would approach a burglary or theft or other crimes.”

Gruber’s paper challenges traditional narratives about the origin of rape laws and their moral underpinings.

The article suggests that it is now time to critically examine whether sex crimes should be treated differently than other violent assaults and calls for a further examination of the impact the treatment of sex crime actually has on the legal system.

“I’m kind of saying to people, you think that this is like enlightenment, creating more sex crimes every day, getting tougher on sex crimes, but look at some of the history, even the recent history and you start to question that instinct,” Gruber said of her research.

Kari Hong, an immigration lawyer and law professor at the University of Montana, wrote an academic article, titled “A New Mens Rea For Rape,” about rape law and reform in 2017 and followed it up with an article for The Crime Report: “What Rape Reform Needs: More Convictions, Less Punishment.”

Hong told The Crime Report that she was originally motivated to write “A New Mens Rea For Rape,” while she was deciding how she wanted to teach the rape unit of a criminal law class at Boston College.

“My initial instinct was not to teach it at all because I was scared of it and I was scared of how to talk about it, and what I realized is that I think the best way to look at what’s going wrong is to really understand the history, which is what professor Gruber highlights in her paper too,” Hong said.

Hong suggests looking at sex offender programs in other countries as a way to consider alternative ways of prosecuting those convicted of sex crimes.

“Canada treats its sex offenders with science-based treatment and the recidivism rate is very low,” Hong said. “So instead of locking people up, if we give them treatment, they can actually be released and they won’t re-offend.”

“When post-#MeToo calls for zero tolerance run up against post-Floyd calls for radically reducing policing and imprisonment, commentators describe these clashes as zero-sum—gender equality at the expense of racial and social justice and vice versa. Progressives, especially feminists, experience them as painful dilemmas,” Gruber wrote. But, she argues, they don’t have to be.

“Because if we’re not, if feminists, if social justice actors aren’t critical consumers of state, criminal power, basically state violence, if we’re not critical about it, who’s going to be critical about it?” Gruber asked.

In “Sex Exceptionalism in Criminal Law,” Gruber lays out for readers a comprehensive history of the law’s unique treatment of sexual crimes, from early American law to contemporary practice. In conversation with The Crime Report, she called on potential reformers to consider the roots of why we treat sexual crimes differently than other forms of assault.

Ultimately, Gruber hopes to initiate a discussion about the origin of people’s assumptions about sex crimes.

“If you want to treat sex crimes differently because you have some account from some sort of either moral or empirical, or theoretical framing of these crimes, that’s fine. But put them on the table and we’ll talk about them,” Gruber said.

This may be one: When people who have been in prison return to society, society wants them to be rehabilitated, commit no more offenses, find employment, and be positive, contributing societal members. Indeed, one would be hard-put to find someone who said he disagreed with that.

And of course, while some with past criminal convictions will not live up to that, many will.

Luke Heimlich did; he had a lucrative career in baseball.

Steven Striegel, an actor, was happy to have even small roles as long as he was working.

Bruce Habowski is an accomplished artist whose work hung proudly in the University of Maine’s art gallery.

And Artimus Pyle, a musician of long standing, has. Once with the band Lynyrd Skynyrd, he has had his own band since 2013, the Artimus Pyle band, and according to venue organizers averages eighteen concerts a year.

Most recently the band is booked to headline one of the nights of the popular Historic Morganton Festival held in September each year in Morganton, North Carolina. However, a petition has been created to remove Mr. Pyle from the program.

In 1993 Artimus Pyle was placed on the sex offender registry in Florida after a no-contest plea conviction for attempted sexual battery, charges that he denies. The discovery of Pyle’s name on the registry prompted the petition, initiated by someone who withholds his name but is identified only as “Concerned Citizen.”

According to statements made by Mr. Pyle to WSOC-TV, he has lost jobs before due to his inclusion on the registry.

If Morganton holds fast to their current status, he won’t lose this one.

Unlike Luke, whose career was destroyed, unlike Steven whose scenes were cut and career ground to a halt, unlike Bruce whose art was pulled from the gallery, Artimus has, at least for now, found a champion.

The board of directors for the festival said that he had been completely open with them about his past. In announcing their decision to keep the Artimus Pyle Band in their festival lineup, they said, “It is significant that many of the concerts, which the Artimus Pyle Band has performed in recent years, have been in public venues such as auditoriums or outdoor stages, all without inappropriate incidents.”

We may all say that we want those with past criminal convictions to build meaningful lives and enter society as contributing members, but the actions of all too many show that to be untrue.

Thankfully, the Historic Morganton Festival, Inc. Board of Directors are showing their beliefs by their actions. They are to be commended.

So it’s no surprise that people search the sex offender registration website to make sure that no one convicted of a sexual offense lives near them or more worrisome, their children’s school, day care or neighborhood park. The premise is simple: to make people feel safer in their community. But are they truly safer? Have we been relying on the wrong system?

Long before the world was introduced to the predatory behavior of people like Jeffrey Epstein, Harvey Weinstein and Bill Cosby, lawmakers across the nation worked to deter victimization and protect citizens from sexual assault. They enacted policies governing individuals convicted of sexual offenses — known as sex offender registration and notification (SORN) laws. These policies allow for law enforcement to maintain a list to track and monitor sex offenders, and registry websites provide the public with registrants’ addresses and identifying information.

But do registration and notification policies actually deter individuals inclined to commit sexual offenses and protect citizens?

A new study of ours shows that these policies are not effective in deterring crime or protecting citizens. We summarized 25 years of research and 474,640 formerly incarcerated sex offenders. We found that such policies do not reduce sexual or non-sexual recidivism.

No reduction. At all.

If the policies are ineffective, then why do we have them?

These policies exist as a governmental response to community fear and outrage. There is political pressure to increase public safety. The problem is that these laws were enacted very quickly after child murder cases and became wide-reaching governmental mandates without research to back their existence and effectiveness. Fast forward 25 years, and the public and politicians are relying on window-dressing to feel safe.

This false sense of safety comes with real consequences.

First, sex offender registration and notification policies have had a net-widening effect, making more registrants eligible and for considerably longer periods of time even though individuals convicted of sexual offenses age out of crime, as do others.

Second, these policies use a “one size fits all” approach and misallocate resources and supervision to offenders with lower risk levels. The ever-growing registry has become a fiscal burden for states.

Finally, sex offender registration and notification policies continue to label and stigmatize individuals after they have served their time. Subsequent dehumanization disrupts any meager attempts to reintegrate the person back into society. Despite what seems like common sense, these policies create obstacles to the factors that promote law-abiding behavior: jobs, secure housing and social support.

There are better ways. We need to educate the public, law enforcement and policy makers that governmental oversight of registrants is not a feasible solution to protecting potential sexual abuse victims. This is not a call to “go soft” on crime, it is an encouragement to “go smart” on crime and use data to make informed decisions. This reimagining requires us as a society to confront the uncomfortable truth that those who commit sexual offenses are usually not strangers — they are more likely to be the most trusted figures around us — our loved ones, our babysitters, coaches, teachers and close family friends.

In the end, parents, community members, and potential home buyers and renters will continue to frequent the sex offender registration website, gathering a false sense of safety — potentially at their own peril — until we as a society are willing to address who the perpetrators of sexual violence are and accept the fact that sex offender registration and notification policies demonstrate little value in making a meaningful impact. Tough-on-crime policies are not always smart policies. It is time to do better.

Meghan M. Mitchell (mmitchell@ucf.edu; @MeghanMMitchell) is an assistant professor in the Department of Criminal Justice at the University of Central Florida. Kristen M. Zgoba (kzgoba@fiu.edu) is an assistant professor in the Department of Criminology and Criminal Justice at Florida International University. Alex R. Piquero (axp1954@miami.edu; @DrAlexPiquero) is chair of the Department of Sociology and Criminology and Arts & Sciences Distinguished Scholar at the University of Miami.

Source: Tampa Bay Times

A while back, I would overhear the registry community speak about the term ‘civil commitment.’ I thought people were discussing gay marriage? However, I quickly realized that civil commitment was much worse than the sex offender registry and a ceremony that nobody wants to attend. 

The textbook definition of involuntary commitment, civil commitment, or involuntary hospitalization is post-sentence institutional detention of an offender to prevent further offenses – in nearly all cases are sex offense related. In addition, there are locations known as civil commitment facilities designed to help diagnose and treat sex offense conditions. Thus, it is not considered a punishment but rather a means of protecting people. At least, that is what people who strongly advocate for civil commitment would say. 

The reality is that civil commitment is a cleverly crafted feel-good scheme intended to make the general public feel like there is a managed solution to critical sex offense issues. It is a system designed to give a look and feel of a hospital or treatment facility setting. Let’s be crystal clear that civil commitment facilities are identical to prisons. There are guards, fences, barriers, often jail-like uniforms where every facet of daily routine is monitored. The only difference between prison and civil commitment is that at least with prison, one knows when he/she will be released. 

The contrast between health care and civil commitment is that healthcare workers such as nurses, nurse aids, doctors, and various therapists roam the patient corridors. This isn’t found within civil commitment centers. Instead, there are plenty of guards and perhaps a sprinkling of a case manager here and there. Some former civil commitment residents have said that civil commitment feeling “is like hospice. where people go to die” because they are told, “there is no cure for people like you.” You wouldn’t find such antagonism in a professional clinical setting. There would be beneficial resources available to create a target for a successful treatment plan. But states have perhaps found their crafty cash cow pretending to be a clinic or hospital to construct a loophole from being accredited by the Joint Commission. 

Involuntary commitment isnt cheap for patients. Civil commitment doesn’t accept or participate in health insurance plans. Instead, it bills patients at inconceivable rates. For example, the state of New York recently billed a patient 1.8 million dollars or over $380,000 annually. It is highly doubtful that any patient will be able to repay such an astronomical fee. But that leaves taxpayers on the hook for potentially hundreds of millions of taxpayer dollars for treatment that doesn’t appear to be working or cost-effective. Unfortunately, taxpayers are perhaps unaware of involuntary commitment programs in their states? But with the recent pandemic impacting state budgets, now may be the time where scrutiny is shined on the lavish spending by involuntary commitment programs.  

Mental health professionals have advocated that the most effective method in therapy for the treatment of sex offense is cognitive-based therapy (CBT). The Intensity and Timing of Sex Offender Treatment scholarly article is one of many evidence-based recommendations that caps a maximum of 2 years for sex offense treatment with CBT methodologies at its forefront. Yet, we continue to witness lawmakers and partisan policy advocates within the bowels of criminal justice propose ill-conceived indeterminate proposals. 

Civil or involuntary commitment is somewhat similar to the lyrics of the song ‘Hotel California’. “Relax, said the night man, We are programmed to receive. You can check out any time you like, But you can never leave! ” Essentially, civil commitment is nothing more than a disillusioned hospital or clinic where punishment is the prescription, but safety is the placebo for everyone else that fails to understand the civil commitment concept. A civil commitment that targets and warehouses sexual offenses is a hazardous and extravagant concept that quickly needs to be euthanized. Civil commitment programs are somewhat similar to the detention cells at Guantomino Bay. They are costly, unethical, political, harmful, have no practical benefit, and side-skirt fundamental human rights. 

Note: At the present time North Carolina does not participate in a sex offense based involuntary commitment similar to other bordering states such as Virginia. 

Heimlich’s offense was serious. So was his punishment given that he was underage. He got two years’ probation, with the threat of 40 weeks in detention if he didn’t comply. And he was mandated into sex offender treatment and placed on the sex offender registry.

Oregonian columnist John Canzano called on Heimlich to pull himself out of the team’s College World Series appearance and suggested that his baseball life should be over. (Heimlich has since quit the team, though he might have noted that that Canzano has been about as consistent as the Washington Nationals bullpen when it comes to second chances.) Other commentators piled on. A CBS Sports analyst called Heimlich’s background “sordid” and said felons should never be allowed in college athletics. Eugene Register-Guard columnist Austin Meek blasted the school for signing Heimlich in the first place.

All of them argued that the larger context–Heimlich’s crime–wipes out his right to play baseball.

But every context has its context, as Tony Judt once said. Juveniles and adults convicted of sex crimes have very low re-offense rates. Teens often make bad decisions precisely because they’re still kids—developing brains haven’t formed the powers of judgment that adults have, which is why the juvenile system is designed to rehabilitate, not punish. And a mound of research shows that what keeps ex-offenders on the right track are housing, jobs, and social support—not isolation and public humiliation.

Heimlich went unselected in this week’s Major League draft. His baseball career may be over. The Oregonian’s Heimlich maneuver probably killed it.

The unforgiving rules operating for Heimlich don’t seem to apply to everyone. Take 31-year-old Texas Rangers pitcher Matt Bush. In March 2012, behind the wheel of his SUV while drunk, he hit 72-year-old motorcyclist Anthony Tufano. Then he fled the scene, driving over Tufano’s head in the process. Tufano suffered a brain hemorrhage, a collapsed lung, broken ribs, broken bones in his back. Bush would have killed Tufano had he not been wearing a helmet. It was Bush’s third arrest for a DUI.

Please read the rest of Steven’s posting at Life on the List.

It has been a while since I last blogged about this topic, so let’s start with some background.

Sex offenders who aren’t required to register for life can petition for removal from the registry 10 years from the date of initial county registration. G.S. 14-208.12A. The superior court judge hearing that petition may grant relief only if, among other things, doing so would “compl[y] with the provisions of the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State.” G.S. 14-208.12A(a1)(2).

As noted on this blog since 2009, that finding, which I’ll call the Wetterling finding, effectively incorporates an important bit of federal law into our state sex offender registration regime. As a matter of state statute, a judge can’t let someone off the registry if doing so would violate relevant federal laws and regulations—even though North Carolina hasn’t enacted other state laws incorporating those federal standards explicitly. (Even now, only 17 states are substantially compliant with SORNA, and North Carolina isn’t one of them.)

Easily the most important federal law that a judge must consider when hearing a petition to terminate registration is the length of registration period that would be required for the offense under federal law. Federal law groups crimes into three tiers—Tier I, Tier II, and Tier III—that require registration for 15 years, 25 years, and life, respectively. So, even though G.S. 14-208.12A allows for a petition to terminate after 10 years, the upshot of the Wetterling finding is that many offenders will not be able to petition successfully at that point, because the judge would not be able to find that removal would comply with the lengthier minimum federal registration period. Only for Tier I offenders with a defined “clean record” (discussed here) could a judge make the finding necessary to allow removal in as few as 10 years.

The federal tiers are defined in SORNA, largely by reference to a set of benchmark federal crimes. For example, a state offense should be considered Tier III (the most serious tier) if it is comparable to or more severe than aggravated sexual abuse under 18 U.S.C. § 2241. In this prior post I summarized the tier definitions. As I noted there, however, rehashing the federal definitions is the easy part. The hard part is actually sorting North Carolina’s sex crimes into the tiers. How do you do it—especially when our crimes don’t all have elements that align neatly with the benchmark federal offenses?

That brings us to Moir.

In Moir, the defendant was convicted of indecent liberties with a child in 2001. He inappropriately touched a four-year-old’s genital area and masturbated in front of the child. He registered as a sex offender in 2002. Ten years later, in 2012, he petitioned for removal from the registry.

The presiding judge found only one obstacle to removal: that it would run afoul of federal law to let the petitioner off the registry after only 10 years. The court found that touching of a victim’s genital area was “sexual contact” as defined in 18 U.S.C. § 2246, and thus comparable to or more serious than “abusive sexual contact” under 18 U.S.C. §2244—a benchmark offense for Tier II sex crimes under SORNA. (Arguably the trial court’s reasoning should have led it to conclude that this was a Tier III offense by virtue of the victim’s young age; abusive sexual contact against a minor under 13 would be Tier III. The wrinkle turns out not to matter for now, although I think the supreme court was subtly flagging it in footnote 5.) Because Tier II offenses require a minimum registration period of 25 years, the court concluded that removal would not comply with the Wetterling Act, as amended, and denied the petition.

The defendant appealed.

(Please continue reading on the North Carolina Criminal Law blog).