Constitutionality of 'Jessica's Law' questioned

The California Supreme Court ruled 5 to 2 Thursday that a 2006 ballot initiative that permitted the state to lock up sexually violent predators indefinitely may violate constitutional guarantees of equal protection.

The California Supreme Court ruled 5 to 2 Thursday that a 2006 ballot initiative that permitted the state to lock up sexually violent predators indefinitely may violate constitutional guarantees of equal protection.

The ruling, written by Justice Carlos R. Moreno, did not strike down the measure, Proposition 83, also known as "Jessica's Law."

Instead, the court said a fact-finding hearing must be held to determine whether valid reasons exist for treating sex predators differently from others subject to civil confinement, such as mentally disordered offenders.

Proposition 83 increased penalties for repeat sex offenders, prohibited them from living near schools and parks, and changed the law to permit their indefinite confinement to mental institutions, instead of two years with the possibility of extensions.

Richard McKee, a convicted child molester, challenged his confinement on several constitutional grounds, but the court found that only his equal protection argument had merit.

The majority said the state must provide "some justification" for creating greater obstacles for sex predators to win their freedom than for severely mentally disordered offenders who commit crimes but serve their terms in mental institutions.

Sexual predators must be shown to "bear a substantially greater risk to society, and that therefore imposing on them a greater burden before they can be released from commitment is needed to protect society," Moreno wrote.

The majority said the state can provide its justifications in a hearing before a trial judge.

Justice Ming W. Chin, joined by Justice Marvin R. Baxter, dissented.

"Whether sexually violent predators present a distinct danger warranting unique remedies is for society to determine, not a trial judge," Chin wrote.

Ruining Kids in Order to Save Them

The boneheaded logic behind treating "sexting" teens as child pornographers.

Radley Balko | Reason Magazine

That the 3rd U.S. Circuit Court of Appeals would even need to hear oral arguments in the case of Miller, et al. v. Skumanick last week is a pretty good indication that law enforcement officials in Wyoming County, Pennsylvania have lost their collective minds.

At issue in the case: Whether the U.S. Constitution permits prosecutors to charge minors who pose for nude or risque photos with child pornography. You read that correctly. In order to protect children from predators and child pornographers, the local district attorney is threatening to prosecute minors who pose for racy photos as if they were child pornographers.

Even within the context of the already hysterical overreaction to the "sexting" phenomenon, the facts in Miller are jaw-dropping. Of the three girls bringing suit, two were photographed at a slumber party wearing training bras. The third photographed herself baring her breasts, then sent the photo to a boy she'd hoped to make jealous. The girls aren't in trouble for distributing the photos, or even for taking them. They've been introduced to the criminal justice system merely for appearing in them.

Wyoming County District Attorney George Skumanick, Jr. gave the girls a choice. The first option was to face felony child pornography charges, punishable by up to 10 years in prison. The second was to attend a series of Skumanick-chosen classes, which according to the Pennsylvania ACLU included topics such as "what it means to be a girl in today's society" and "non-traditional societal and job roles." The girls would also be put on probation, subject to random drug tests, and would have to write essays explaining why appearing in photos while wearing their bras is wrong.

Skumanick would later tell a gathering of students and parents that he had the authority to prosecute girls photographed on the beach in bikinis, because the minors would be dressed "provocatively." He told the Wall Street Journal that by offering the girls the classes and probation instead of immediately hitting them with felony charges, "We thought we were being progressive."

Of the 19 minors Skumanick targeted, 16 chose the classes. The other three took Skumanick to court, where they won a restraining order. Skumanick appealed. To the credit of the people of Wyoming County, after 20 years in office Skumanick lost his bid for reelection last November. But his office continues to fight.

But this isn't just an isolated case of a renegade D.A. There have now been several cases across the country where young people who either pose for, snap, or forward provocative or nude photos of other minors are being charged or threatened with felony child pornography. In 2007, a state appeals court in Florida upheld charges of "directing or promoting a photograph featuring the sexual conduct of a child" and possession of child pornography charges against a 17-year-old boy and a 16-year-old girl for forwarding explicit photos of themselves having sex from her computer to his email address. The sex wasn't illegal. But the photos were. Incredibly, Judge James Wolf wrote in the majority opinion that "Mere production of these videos or pictures may...result in psychological trauma to the teenagers involved. Further, if these pictures are ultimately released, future damage may be done to these minors' careers or personal lives."

The message to minors: These photos can ruin your lives, kids. And just to prove it, we're going to ruin your lives.

These cases are the natural culmination of two trends. The first is the continuing view among politicians that there's no punishment too severe for sex offenders. Moreover, to show how serious we are about sex offenders, we should broaden the class of people we classify under the label. And there needn't be any actual victims.

In 2006, Karen Fletcher, also of Pennsylvania, was convicted in federal court for writing fictional stories (and granted, they were disturbing stories) about sexual and violent crimes against children. Until it was struck down by the Supreme Court in 2002, the 1996 Child Online Protection Act criminalized images of adults made to look like minors, as well as digitally manufactured photos of minors who don't actually exist.

The second trend is the "for the children" excuse that no law ought to be questioned if its intent is to protect young people. The resulting paternalism is built in.

Put these together, and you get the intellectually vacant policy of prosecuting children for sexually exploiting order to protect them from the people who might exploit them.

It isn't exactly clear from what or whom the authorities are protecting these teens. To my knowledge, there hasn't been a single case of a predator who tracked down, then raped, killed, or otherwise physically harmed a minor after viewing explicit photos of the child on the Internet or via images forwarded by cell phone. Perhaps it has happened. But given the media obsession with these stories, if it's happened with any frequency at all, we would have probably heard about it by now.

The harm here seems to be the possibility that somewhere, someone other than the intended recipient of these photos may be masturbating to them. That's an uncomfortable thought, sure. But it's difficult to see how that presents tangible harm to the minors in the photos, certainly not to the point where the minors themselves ought to be prosecuted. Anyone turned on by the photos in Skumanick's case could just as easily placate themselves with an old Sears catalogue—and with no resulting damage to the models who posed in it.

But the idea that an otherwise innocuous image can mutate into illegal child porn based on how it might be used by pedophiles is gaining currency. In 2006, Alabama photographer Jeff Pierson was indicted on federal child porn charges for a website he ran featuring aspiring teen models. None of the models were nude, nor were any depicted engaged in any sexual activity. All of the models' parents signed off on the photos. But federal prosecutors argued the models struck "illegally provocative," "lascivious," and "coy" poses that could entice pedophiles. In 2002, Republican Rep. Mark Foley of Florida (yes, that Mark Foley) introduced the Child Modeling Exploitation Prevention Act, which would have prohibited the sale of any photo of a minor. It failed, but crazy as Foley's bill sounds, it at least would have cleared up the ambiguity. As the website CNET reported in a story about Pierson, federal courts have made the definition of child porn so subjective, "judges and juries [are] faced with the difficult task of making distinctions between lawful and unlawful camera angles and facial expressions."

When applied to "sexting" cases, that also leaves prosecutors like Skumanick far too much leeway—enough, for example, for him to believe he can prosecute a girl photographed in a bikini because he finds the photo uncomfortably "provocative." But even when "sexted" photos are unquestionably explicit, there's no justification for criminal charges. Even the deterrent argument falls flat. Despite these high-profile cases, threats of prosecution, and public service announcements on MTV, surveys suggest that about 20-25 percent of young people college-aged and younger have taken or sent sent explicit photos of themselves. That number is rising, not falling.

The root disconnect, here, is that the law treats pre-pubescent sex crimes on par with crimes related to teenagers who are sexually mature. Fact is, teenagers become sexually mature years before it's socially or legally permissible to think about them that way. That they're then having sex is nothing new. Nor is the fact that teens make rash, emotional, spur-of-the-moment decisions. What's new is that they're able to document it all in ways that can quickly escape their control. What they need after the fact are responsible adults who can walk them through a poor decision, appropriately reprimand or punish them if necessary, but all while keeping things in perspective, and minimizing the long-term consequences for the teen. Dumping the kid into the criminal justice system has all the subtlety and precision of dropping an anvil on the problem from 40 stories above.

Radley Balko is a senior editor at Reason magazine.

"Don't Talk to the Police" by Professor James Duane

Police said Valparaiso boy, girl sent nude pictures to each other

Ed: We are smack-dab in the middle of a full-blown Hysteria! To say that we have allowed ourselves to be governed by the most narrow-minded of Puritans is, incredibly, to do injustice to the historical Puritans who, arguably, were never as puritanical as Americans now most clearly are. Where is the outrage at the incursion of government into every aspect of our, and our children's, lives? And why the hell aren't we putting up more of a fight to defend our freedom? Have we really become that docile and ignorant? If there is a role for "shaming" in our society, it should be employed as a tool against these intolerant, bullying assholes who have nothing but contempt for the liberties our country was founded upon! We MUST secure our rights once again!

Middle school students charged in 'sexting' case

By Ken Kosky -, (219) 548-4354 | Posted: Thursday, January 28, 2010 12:05 am

VALPARAISO | Two Ben Franklin Middle School students who Valparaiso police said were caught using their cell phones to exchange nude pictures of each other -- a practice called sexual texting or "sexting" -- are facing criminal charges.

A 13-year-old Valparaiso girl and a 12-year-old Valparaiso boy were referred to juvenile probation on charges of possession of child pornography and child exploitation. In adult court, the charges would carry a maximum penalty of 11 years in prison, but prosecutors expect the case to be handled in the juvenile system.

"Something needs to be done, but we think dealing with them through the juvenile court system is appropriate, so as not to saddle them with (consequences) from the adult system," Porter County Prosecutor Brian Gensel said.

In the adult system, convicted offenders face not only prison time but also having to register as a sex offender.

The case against the Valparaiso students came to light when the girl's phone went off during class Jan. 21 and the teacher confiscated it. The teacher told police the girl asked to delete something from the phone before it was turned over to the administration, but that request was denied.

The teacher said the girl began crying, saying she would get in trouble because the boy had sent her a dirty picture.

An investigation revealed the boy sent the girl an explicit photo of himself Jan. 17 and asked her to use her cellular phone to send back a similar picture of herself, which she did, police said. Police further found out the girl showed the picture of the boy to one of her friends.

Deputy Prosecutor Cheryl Polarek said young people don't understand the ramifications of texting nude pictures or posting certain material on social networking sites like Facebook. She said a nude picture could end up being shared with half the school and could get in the hands of people who seek out child pornography.

Even though it is illegal to send or possess nude pictures of someone younger than 18, a national survey found 20 percent of teens have texted or posted online nude or semi-nude pictures of themselves.

Gensel, who belongs to the National District Attorneys Association, said the association's trade publication featured a column on sexting that highlighted Montgomery County, Ohio, Prosecutor Mathias Heck Jr.'s implementation of a "diversion program" for sexting cases.

Young people who enter the diversion program undergo education on appropriate sexual boundaries and related topics, complete community service and relinquish their cell phone for a period of time. If the program is successfully completed, the charges are dismissed or never filed.

Gensel agrees with Heck that there needs to be some "tempering" of prosecution so some foolish, consenting behavior doesn't have long-term ramifications on young people's lives. Gensel favors a system in which young people receive an explanation about how serious of a matter sexual texting is, and that there will be serious consequences if they continue doing it.

Valparaiso police Sgt. Michael Grennes said this case shows the need for parents to educate their children about what they can and can't do with their cellular phones or on their computers. He also recommends parents to follow through by monitoring their children's phone and computer use. He also said parents might want to consider whether their child really needs to own a phone.

Paul Shanley Case and Repressed Memory

The Paul Shanley Case and Repressed Memory Recovery: Not Such Thin Partitions
By Jean Mercer, Ph.D.
Created Jan 17 2010 - 10:39am

A few days ago, the Boston Globe reported that the Massachusetts Supreme Judicial Court has upheld the conviction of Paul Shanley, a former priest accused of sexual abuse occurring about twenty years ago. The appeal of Shanley's conviction was based on objections to the lower court's acceptance of testimony based on recovered memories of the event, which were said to have been repressed by the victim. In upholding the conviction, the higher court said: "... the judge's finding that the lack of scientific testing did not make unreliable the theory that an individual may experience dissociative amnesia was supported in the record, not only by expert testimony but by a wide collection of clinical observations and a survey of academic literature". This was in spite of the submission of comments rejecting the idea of repressed memories by experts such as Richard McNally. However, the opinion went on to say, the Supreme Judicial Court may decide in the future to throw out a conviction where the only evidence is recovered memories.

Repugnant as is the idea of sexual abuse of children, especially by figures of authority, it is also repugnant to think that misinformation may have trumped good evidence in this and similar cases. It is always a problem to translate scientific standards of evidence into legal standards, because legal standards are based on concepts like "what a reasonable man would think" or on the preponderance of evidence, and scientific standards have traditionally been based on probabilities. Recently scientific standards, especially in medical and psychological areas, have also considered the quality or level of evidence supporting a claim. This perspective seems to be difficult for courts to handle.

The higher court's statement about "the lack of scientific testing" misses several points about the evaluation of scientific evidence. One important point is that it is not possible to prove that something (such as repressed memory recovery) does not exist or did not exist in the past. There are two ways to provide evidence about non-existence. One is to amass evidence that some situation, mutually exclusive with the point in dispute, does or did exist-- for example, if I say a person attacked me, evidence that he or she was on another continent at the time shows that what I claim could not have happened. Another approach, one that is becoming more important as people focus on quality or levels of evidence, is to show that evidence supporting the existence of a phenomenon (for instance, repressed memory recovery) is not of good quality. In the case of repressed memory recovery and other issues, critiques of research methods and reporting can invalidate the evidence claiming that something exists. Critiques of the research evidence supporting repressed memory recovery, by Richard McNally, Susan Clancy, and others, have effectively shown that such evidence is of poor quality.

When deciding whether evidence is good or poor, experts often begin by examining whether an idea is plausible. Is it possible that events could come about as claimed? How does the suggested function agree with known, well-supported information about other functions? Although there can certainly be real "breakthroughs" in which a discovery shows that what we thought we knew was wrong, the simplest conclusion about an implausible idea is that it is mistaken.

The idea of recovered repressed memories is in fact implausible. It is at odds with everything known about human memory. It contradicts the fact that vivid experiences (as sexual abuse would presumably be) create lasting memories, as well as the fact that memories change and are reconstructed over time, even those that are easily accessible and frequently recalled. It also contradicts the fact that thoughts that we experience as remembered may come from sources other than memories of actual experiences of our own.

I would suggest that the idea of recoverable repressed memories is based, not on modern understanding of memory, but on a belief about memory accepted by Sigmund Freud but dating to a period much earlier than his. This view of memory was put forth initially by the 18th-century philosopher John Locke, and was later elaborated by the British Associationist school of psychology. The basic concept at work here was described poetically by Alexander Pope in his lines:

Remembrance and reflection, how allied;/ What thin partitions sense from thought divide.

Pope and the Associationists assumed that thoughts and ideas were simply results of the impact of sense experiences on the mind. These results, like ripples of a stone thrown into a pond, could fade with time, but were completely determined by the event that caused them. If recalled, they came back into consciousness in exactly the same form in which they were originally created. People who had many thoughts and ideas were people who had had many experiences; those with few thoughts had been deprived of experience. Ideas could be connected with each other (forming a "complex") if sensations were often experienced together.

I don't mean to ascribe the idea of repression to the Associationist school, of course. That idea has different sources. My point here is that this early view held that memories were accurate reflections of experiences, and that although they might fade with time they remained accurate. The "thin partititions" had no capacity to alter memories so that they would not accurately resemble the original experience. This same belief is characteristic of ideas about recovered memory: that whenever a memory is accessed, or whenever a person experiences a thought as remembered, the experience is a direct parallel to the person's sensory experience in the past.

Our understanding of memory today stresses "thick partitions" that divide sensory experience and thoughts or memories. Processing of sensory information and later cognitive activity change thoughts and experienced memories. Memories that have not been accessed before do not suddenly emerge as accurate recordings of past experience. It is disappointing that courts have not yet come to terms with this fact.

Child Sexual Abuse: Problematic, Yes; Traumatic, Not Necessarily

By Jean Mercer, Ph.D.
Created Jan 26 2010 - 8:08am

Susan Clancy's important book "The Trauma Myth" (New York, Basic Books, 2009) is drawing the critical fire of a number of people who have not given it the careful reading it deserves. Some of these critics have claimed that Clancy argues against any deleterious effects of sexual molestation in childhood--- that she defends pedophiles, and even that she is a pedophile herself or that she blames child victims for the behavior of sexually-exploitative adults.

These statements are nonsense, and I am going to attempt to counter them by devoting today's post to a summary and comments on Clancy's argument in "The Trauma Myth".

"The Trauma Myth" emphasizes repeatedly the clear evidence that childhood experiences of sexual exploitation by adults are associated with a long list of later problems, including mood disorders, anxiety disorders, personality disorders, relationship and sexual problems, eating disorders, self-mutilation, and so on. Because one in five children is reported to have experienced sexual abuse (and probably there are more, unreported, cases), such abuse is responsible for significant numbers of mental health problems. It's important that we learn how to prevent it and to treat its results, not only for the sake of individuals but for the mental health of the whole population. To prevent child sexual abuse and treat problems that result from it, we need to have a real understanding of how these experiences cause bad outcomes. However, much work in this area is based on the assumption that trauma theory, which attributes many mental health problems to the past experience of severe pain and fear, and trauma theory may not provide a good framework for understanding the impact of sexual molestation in childhood.

Clancy is not the first to point out that children's sexual experiences with adults are not necessarily experienced as traumatic (severely painful or terrifying) at the time when they occur. But her interview research with adults who had been molested as children clearly showed a continuum of child experiences, ranging from terror and pain at one end, through puzzlement without distress in the middle, to physical and emotional gratification at the opposite end. In fact, most of her interviewees reported that in childhood, at the time of the event, they were not frightened or in pain. The abuser's actions did not involve force or even penetration of any kind, but were generally limited to rubbing, kissing,or fondling of genitals, nor did most of the abusers threaten the children in any way. Nevertheless, those adults, as well as the ones who had experienced trauma, reported symptoms related to their experiences, and now felt that the sexual event had had a deplorable effect on them.

The question Clancy raises is this: if the abused children did not at the time experience the event as traumatic, how can we explain the connection to their present symptoms? We can't do this in any simple way by means of applying trauma theory. To make trauma theory work in this context, we would have to add to it the concept of repressed memories-- to say, for example, that the adults Clancy interviewed were really terrified and hurt, that they have repressed and can't report that part of the experience, but that in its repressed form the memory still affects their mental health. Taking that approach, however, we would come up against an even more complicated issue: why is it that people who were actually hurt and terrified (according to independent evidence) don't repress what must be a hideous memory? Using the repressed memory concept, then, we find ourselves having to explain why a really terrible experience is remembered with all the emotional factors intact, but a less painful and frightening situation leads to repression of memories of emotion. Although U-shaped functions of this kind are not unknown in psychology, this one does not seem to make much sense.

Clancy concludes from this line of reasoning that trauma theory and the concept of repression are not good ways to explain the most common situations involving childhood sexual abuse and its aftermath in adulthood. Because they are not good ways, they have not done much to help us either prevent or treat the effects of child sexual abuse. We need to explore these matters much more carefully, and, Clancy says we need to make sure that our explanation involves the child's point of view, which has generally been ignored. To understand that children's group and individual characteristics affect the sex abuse situation is a far cry from "blaming" the child.

Clancy makes several points about children's understanding of the world and the ways it can make the child's view of non-painful sexual abuse rather different from an adult's. She stresses the ignorance of children about sexuality and their failure to comprehend what an adult wants or what he or she is doing. Why heavy breathing and a red face, for instance? A child has probably observed these things before, but in quite different contexts. The puzzled conclusion may simply be that this is strange and perhaps it's one of those embarrassing things that you get in trouble for talking about, so best to just keep it to yourself.

Importantly, Clancy also emphasize that there are characteristics of individual children that may make them more likely to be the victims of repeated abuse which they do not report. No, she does not say these children are "seductive"; what she does say is that they are lonely, unsupervised, and grateful for adult attention. They respond to the fascinated attentiveness of the potential abuser as a delightful experience, in sharp contrast with the indifference their caregivers may show. Without experiences of pain or fear, why should they reveal what seems to them like a romance to familiar adults who will probably cause some trouble?

Finally, Clancy says something that is for many readers the unspeakable: that given a kind, careful adult who treats them well, children may enjoy sexual experiences (we are not talking about penetration here, of course). I was reminded of a story I heard from a friend some years ago. She had left her 3-year-old boy with a 13-year-old boy babysitter, and when she came home she became aware that some sort of sex play must have been going on. All she could think of was to give the 3-year-old the old bromide, "if someone touches you and you don't like, just tell them to stop"--- to which the 3-year-old replied enthusiastically, "I liked it! When can he babysit me again?" And there you have it in a nutshell; sexual activity of the right kind is pleasurable for everybody at every age. Sexual predators know that very well, and if we want to stop their exploitation of children, we need to be honest about it too, and not to expect children to "tell on" someone who gives them pleasure.

"The Trauma Myth" is a serious effort to deal with child sexual abuse and its aftermath. I've had space here to give only the highlights of Clancy's argument, but the book contains much more of interest, including a discussion of abuse prevention programs as they now exist. I hope readers will give "The Trauma Myth" the careful attention it deserves.

Ed: One implication for her assertions is that we, as a society, may be causing actual harm to children through our own reactions to their sexual experiences. This is obviously the case.

Abusing Not Only Children, but Also Science


Given the vested interests lurking all over the current medical landscape, it is no wonder that the scientific method is so often mauled a little in transit. Cases of data ignored or manipulated to serve an agenda are like muggings in a bad neighborhood: you hear about them all the time, but in fact relatively few are ever openly examined.

And so even readers with no personal or professional connection to the sexual abuse of children may be edified by “The Trauma Myth,” a short tale of one such particularly fraught episode.

For a graduate research project at Harvard in the mid-1990s, the psychologist Susan A. Clancy arranged to interview adult survivors of childhood sexual abuse, expecting to confirm the conventional wisdom that the more traumatic the abuse had been, the more troubled an adult the child had become.

Dr. Clancy figured she knew what she would find: “Everything I knew dictated that the abuse should be a horrible experience, that the child should be traumatized at the time it was happening — overwhelmed with fear, shock, horror.”

But many carefully documented interviews revealed nothing of the sort. Commonly, the abuse had been confusing for the child but not traumatic in the usual sense of the word. Only when the child grew old enough to understand exactly what had happened — sometimes many years later — did the fear, shock and horror begin. And only at that point did the experience become traumatic and begin its well-known destructive process.

Dr. Clancy questioned her findings, reconfirmed them and was convinced. Her audience, when she made the data public, was outraged.

First, her data flew in the face of several decades of politically correct trauma theory, feminist theory and sexual politics.

Second, Dr. Clancy found that the world had little appetite for scientific subtlety: “Unfortunately, when people heard ‘not traumatic when it happens,’ they translated my words to mean, ‘It doesn’t harm victims later on.’ Even worse, some assumed I was blaming victims for their abuse.”

Dr. Clancy reports that she became a pariah in lay and academic circles. She was “crucified” in the press as a “friend of pedophiles,” colleagues boycotted her talks, advisers suggested that continuing on her trajectory would rule out an academic career.

All that fuss about one little word — “trauma” — and a change in its timing. Why should it matter one way or the other?

Dr. Clancy suggests several reasons her data aroused such passion. For one thing, a whole academic and therapeutic structure rides on the old model of sexual abuse; her findings had the potential to undermine a host of expensive treatment and prevention projects.

Meanwhile, she argues, it is her model that may really help victims. Adult survivors of childhood abuse are commonly mortified by their own behavior as children. By not fighting back or calling for help, they blame themselves for effectively colluding with their abuser. It can be intensely comforting for them to hear that their reaction, or lack thereof, was completely normal.

Dr. Clancy’s model also makes some sense of the whole sticky question of repressed memory. Most traumatic events are likely to be vividly remembered. But if instances of sexual abuse are simply among the many confusions that characterize childhood, they are perfectly forgettable: “Why should a child remember them if, at the time they happened, they were not particularly traumatic?” Only when reprocessed and fully understood do the memories leap into focus.

Even without all these practicalities, the moral of Dr. Clancy’s story is clear: science should represent truth, not wishful thinking. When good data fly in the face of beloved theory, the theory has to go.

Dr. Clancy writes with the precision and patient repetition of a good teacher on complicated terrain. Her prose could not be clearer, and her points are restated many, many times over. But at, an outraged customer-reviewer has already pounced.

“It is appalling,” the reviewer wrote, “that ‘experts’ like Susan Clancy can get away with having a book published with a title that is not only false, but one that tells sexual perpetrators, ‘Go ahead, sexually abuse children, they like it, and they aren’t going to be traumatized by it.’ ”

Science is sometimes no match for conviction, and often, evidently, good writing is not either.