Sex Offenders - A History

History

It was the philosopher George Santayana who said: "Those who fail to learn from history are condemned to repeat it." Whether or not that's true, without at least some sense of how similar issues were thought about and handled in the past, we are likely to blindly regard the current dominant perspective as the only natural and proper one that could possibly be held by any right-thinking person.

Perkins v. State of North Carolina, 234 F.Supp. 333 (1964)

[334] [Craven, Chief Judge] "On January 8, 1962, Max Doyle Perkins and Robert Eugene McCorkle were jointly indicted by the grand jury of Mecklenburg, North Carolina. It weas charged that they 'did unlawfully, willfully, maliciously and feloniously commit the abominable and detestable crime against nature with each other.' McCorkle pleaded nolo contendere [no contest], received a sentence of five to seven years, served a portion of it, and has been released. Perkins, after conviction by a jury upon his plea of not guilty, was sentenced to a term of not less than twenty nor more than thirty years. The disparate sentences were passed by the same judge."

[335] "Perkins was convicted of a violation of N.C.G.S. § 14-177, which reads in its entirety as follows:

'If any person shall commit the abominable and detestable crime against nature, with mankind or beast, he shall be imprisoned in the State's prison not less than five nor more than sixty years.'

"The statute is copied from the first English statute on the subject passed in the year 1533 during the reign of King Henry VIII. It was adopted in North Carolina in 1837 with only one difference. The words 'vice and buggery' which appeared in the ancient English statute were omitted and instead there was substituted the delightful euhemism 'crime against nature, not to be named among Christians.' It then read in its entirety:

'Any person who shall commit the abominable and detestable crime against nature, not to be named among Christians, with either mankind or beast, shall be adjudged guilty of a felony, and shall suffer death without the benefit of clergy.'

"By 1854 Christians had become more articulate and less clergical. The phrases 'not to be named among Christians' and 'without benefit of clergy' were deleted from the statute. Finally, in 1869, the death penalty was limited to murder and the like. The punishment for crime against nature was limited to sixty years maximum. Since 1869 the statute itself has remained unchanged -- in itself a shocking example of the unfortunate gulf between criminal law, medicine and psychiatry."

[339] "For the confirmed homosexual, imprisonment can accomplish no rehabilitative function; instead, it provides an outlet for the gratification of sexually-deviate desires."

[340] "Are homosexuals twice as dangerous to society as second-degree murderers -- as indicated by the maximum punishment for each offense? Is there any good reason why a person convicted of a single homosexual act with another adult may be imprisoned...thirty times as long as the drunk driver -- even though serious personal injury and property damage results, twice as long as an armed bank robber, three times as long as a train robber, six times as long as the one who feloniously breaks and enters a store, and 730 times as long as the public drunk? These questions, and others like them, need to be answered."

Forty-two . That's how many years elapsed between all fifty U.S. states having laws against gay sex on the books, and such laws disappearing entirely. In 1961, Illinois became the very first to decriminalize it. Some six years later, in 1967, a program aired on television entitled: "CBS Presents: The Homosexuals." Hosted by Mike Wallace, who would help to launch "60 Minutes" the following year, it interviewed several previously-arrested men, at least one of whom was just a conviction away from spending the rest of his life in prison for sex with another man. Wallace also interviewed a policeman, who opined, at length, on the importance of punishing such crimes. In 1969, Connecticut became only the second state in the nation to legalize gay sex. But it would soon be followed by several others, and, by the end of the 1970s, virtually no states were actually enforcing any still-existing laws against private, consensual sex between adults of the same gender. And yet, it would take all the way until the year 2003 before the U.S. Supreme Court would finally strike down the handful of such statutes which still were -- technically -- on the books. Interestingly enough, that also happened to be the same year that Massachusetts became the first state to recognize the right of same-sex couples to marry.

Now...Imagine it's 1951. Joe McCarthy's anti-communist witch-hunt is at its terrifying apogee. But, someone tells you that within a decade, the laws banning homosexual sex will begin to crumble; and moreover, a few decades after that , states will start allowing 'gays' -- a word now in common usage for that purpose -- to get wedding licenses. Back in 1951, it's a toss-up as to whether a person saying such things would have been arrested, committed to an insane asylum, or simply laughed at. Almost no one could have imagined all of this actually coming to pass -- even homosexuals themselves. And yet, it happened.

W2 [62] "Sexual behavior in ancient times was detailed extensively in art, literature, poetry, and theater...Many types of sexual behavior were considered acceptable at that time, including homosexuality and intergenerational sexual relationships."

[68] "Arrests for sodomy in New York City nearly doubled in the 1930s because officers were required to crack down on all homosexual activity on the subway and other public places (Jenkins, 1998). By 1937, these 'habitual sex offenders' became known as sexual psychopaths."

[69] "[H]omosexual men were considered dangerous in the 1950s, when the legislation was intended to incapacitate truly dangerous [i.e., murderous] offenders..."

"Many of the sex offenders committed [as in, civil commitment] at this time were accused of acts such as peeping, lewdness, impairing morals, or offenses related to homosexuality such as sodomy."

[71] [from Table 3.1: Tappan's (1950) 10 Key Criticisms of the Paranoia about Sex Offenders; Col. 2: Criticism of Sexual Psychopath Laws, Based Upon Sex Offender Facts:]

"Fact: Sex Offenders have a low rate of recidivism; Criticism: Sex offenders repeat their offenses less frequently than other property or violent offenders except those convicted of homicide.

Fact: Sex offenders are not simply 'over-sexed' individuals; Criticism: Organic treatments such as castration are not likely to be effective remedies for deviant sexual behavior since sexual urges are not the driving force of the offender.

Fact: Most individuals committed are minor offenders; Criticism: Though sexual psychopathy legislation was passed in order to incapacitate the serious sexual fiend, this rarely happens. Instead, they most often incapacitate those with moral offenses, such as homosexual behavior. [72]

Fact: Due process rights are disregarded in the commitment process; Criticism: Because the commitment process is of a civil nature, Tappan asserts that there is a violation of human rights and due process in the commitment procedure, stating that, 'regardless of the type of court employed to attain this result, it is in effect a serious punishment in which liberty and due process are vitally involved. Reasoning to the contrary is founded in a technical legalism of the most vicious sort.'"

D10 [39] "[L]aws may express disgust: anti-sodomy laws in the United States were, until recently, examples of laws that seem to have had no basis apart from the social revulsion toward gay sex, as United States courts have only recently taken into account. [from FN19:] In England forty years ago, Lord Devlin famously promoted anti-homosexuality laws by claiming that homosexuality erodes the social fabric. According to Devlin, homosexuality is a kind of addiction that precludes diligence and prudence, and may spread like a 'contagion' through society. The fear of contagion is at the heart of disgust. Devlin recognized that laws may express disgust, including the fear of contagion, but regarded disgust as a part of the civilizing process...That Lawrence [v. Texas] only overturned the last of our anti-sodomy laws in 2003 suggests that Lord Devlin's social anxiety may still have a counterpart in the United States."

[41] "[T]he criminal, or moral monster...could only be detected by the use of techniques developed by experts...By the twentieth century...the experts who purported to be able to detect moral monsters were psychiatrists and psychologists. Moral monsters may just be ordinary criminals. But they may also be sexual deviants. Sexual deviance is the most recent monstrosity, to which all 'normal' members of society would, in a proper drama, react with horror. What counts as sexual deviance has shifted from homosexuality deviant during most of the twentieth century to the more recent focus on sexually violent crimes."

[42] "[T]he statutory methods for segregating sex offenders and keeping them off the streets rely on the responses to sex offending by the public that share a great deal with public responses to monsters during the renaissance, and with the eighteenth century concept of the moral monster. The link between all three notions is the attribution of powerful and perverse desires, satisfaction of which sets the moral monster apart from people with 'normal' desires."

[43] "Between 1937 and 1950, 'sexual psychopath' laws were passed in a dozen states...in response to a few sensational sex crimes that occurred in quick succession. The press publicized these crimes with sensational stories and created an impression that there was a full-blown epidemic. The Federal Bureau of Investigation announced a war on sex offenders. Politicians demanded the passage of sexual psychopath laws to severely punish sex criminals, in response to palpable public fear of sex crimes. And organizations were formed to pressure politicians to pass anti-sex crime legislation. However, as criminologist Edward Sutherland reported in 1950, the panic over sex crimes in a given community was not shown to reflect an increase in the number of sex crimes in the community."

L5 [559] "There is also the theoretically interesting question of timing: Why the level of social and legal concern over sex offenders at this point in time? Emotional reactions to sex offenders, like the ones expressed here [in 1994-1998 congressional debates on proposed sex offender legislation], tend to reflect deeper sociocultural anxieties and discomforts surrounding sexuality, family, gender roles. That it is the 'sex offender,' rather than some other dangerous force, who has taken on such a powerfully threatening place at this point is significant. Jenkins (1998) makes a strong case for the role of underlying social anxieties over gender roles and norms of sexuality in the ascension of periodic sex offender social panics over the past 100 years. For instance, he convincingly linked the panic of the post-World War II era to explicit social efforts aimed at getting American women back into the home and restore the balance of the nuclear family. He further argues that the more recent panic of the 1980s, particularly the rise of accusations of systemic ritual abuse in child care centers, was a form of backlash to the 1970s feminist movement and its attendant impact on the 'traditional' family structure."

M36 [25] "[S]ex offender laws did not emerge in the mid-1990s as a result of some high-profile child murders, such as Megan Kanka's. These laws actually have a history spanning back most of the 20th century, and they were originally enacted to repress heterodox sexualities such as male homosexuality.

"The modern-day sex offender laws work the same repression, and the image of sex offenders is crucial in enabling this repression."

[27] "It is my argument in this article that sex offender laws emerged in their modern-day form in the mid-1990s as a result of the Religious Right in the early 1980s and the movement's maturity in the 'Decade of Evangelism' of the 1990s...[C]ases like Kanka's have been coming to America's courts for decades, if not centuries...Sex offender laws need to be placed in their historical context of conservative Christianity and its influence on 1990s politics and society. In so contextualizing these laws, we can begin to recognize that they respond to conservative Christian needs to repress alternate sexualities. In understanding the primarily...false image of the sex offender that serves conservative Christianity's needs, we can understand why and how sex offender laws are ineffective and possibly harmful."

[36] "[The Puritans] first preached against sexual transgressions, invoking the same notion of the transgressor that SORNAs [Sex Offender Registration and Notification Acts] call upon today -- that of the uncontrolled offender, the person who engages in the 'carnal excess' that threatened the well-being of the community. The Puritans also notified the community of transgressions, just as SORNAs often require today. In the colonies, sex and accounts of crimes were presented to the public in broadsides, which heightened interest in the proscribed activities. Public repudiation of these crimes was often 'less about individual blame than about ritualizing communal cohesion.'...The Puritans also had a 'penchant for staging and recording' public confessions of sex, and they stressed 'being watched' and maintaining close surveillance to ensure moral integrity. Close surveillance is, of course, the main function of SORNAs."

[38] "Since at least the 1980s, the conservative social agenda has legitimized the fear of sex."

[43] "Maria Grahn-Farley has noted that children are mythologized as immature, and in need of special protection because they are disabled; they are also 'straightforward. . .not yet corrupted,' 'undamaged,' 'naive, ad pure.' She argues, however, that this image, while often true, is just as often not true. Children are, rather, made vulnerable by adults, who fail to protect them. Having been made vulnerable, they are seen as naturally vulnerable...Grahn-Farley goes on to argue that there are many mature children, just as there are many immature adults, and 'age is not a "natural" concept.' The image of the innocent child is, instead, 'always in the adult's possession' and is constructed to serve the adult master and the adult master's law. The child is created as an innocent angel to serve the Religious Right's law, and the sex offender is created as an object of total fear to serve the same law."

[48] 'It was America's peculiar form of conservative religiosity that existed in the mid-1990s, and which gave rise to SORNAs. This religiosity sought to protect families and their privacy, rather than to protect children."

C2 [303] "One wonders if a future generation will look back on the final years of this millennium with the same sense of fascination and revulsion that we now look back at [the] Salem [witch trials of the 17th century]."

K23 [197]

RK: Please explain the basic premise -- the overarching theme -- of your book Moral Panic: Changing Concepts of the Child Molester in America.

PJ: The idea of child abuse is so deeply ingrained in our society that it seems absolutely obvious that all sensible people, everywhere, will think likewise unless they are deeply sick. To the contrary, even this absolute orthodoxy is in fact very new in historic terms: Even within the US, anti-child-abuse movements can be overwhelmingly strong in one year, and nonexistent 20 or 30 years later

. RK: You note that words and phrases such as "pervert," "pedophile," and "child molester," and "sex offender" have had different meanings and have been used in different ways at different times. Please elaborate.

PJ: There is a long record of people trying to get neutral, objective, nonjudgmental words for different types of conduct that are seen as pathological but not necessarily evil. Through the years, each of these medical words has been annexed by media and law enforcement as a demon word, usually distorting its original meaning. "Molestation" originally meant mild bothering, and people invented it to refer to acts which were trivial compared with rape -- yet a "molester" today is the worst thing in the world.

The inflation process is under way right now with "pedophile," which just refers to people sexually interested in kids under the age of puberty. It does not imply violence, and more to the point, it does not refer to sex with older teenagers, "jailbait." [198]

RK: Let's break down the phrase "child molestation" into its two parts and examine each one. First of all, you have "child." Obviously, the notion of what constitutes a child is very fluid. This topic could fill an entire book of its own, but could you briefly discuss how the concept of "child" has been constructed?

PJ: All societies are likely to limit the sexual activity of kids under the age of puberty, and most do -- yet in England and America prior to the 1880s, the age of sexual consent was ten , and only gradually did it creep up to fourteen, fifteen. As time has gone by and people have tried to expand the borders of childhood, the age has grown, so that American child porn legislation makes any sexual depiction of a person under eighteen pornographic and illegal, even if taken with his/her own consent. At the same time, the age of puberty has fallen, so we have an ever-wider gap between girls being physically ready for sex, and what the law permits. The scope of criminal law grows proportionately.

RK: Turning to the second part of the phrase "child molestation," the concept of molestation is also up for grabs in in various times, locations, and arenas. How has this concept changed? What are some accepted behaviors of the past (or other current cultures) that most Americans would now define as molestation?

PJ: As I said, molestation originally meant milder acts short of rape -- often mutual masturbation. As time has gone by, the concept has extended to acts of voyeurism and fondling, and even taking pornographic pictures. It always pays to ask just what a "molester" is supposed to have done -- and what was the age of the "victim." This lack of definition is a basic problem with much sex-offender legislation, since many "sex predators" are in fact guilty of relatively trivial acts...

RK: You've noted that like many other panics, the molestation panic in America has gone in cycles from approximately 1894 to today. Please give a broad overview of this timetable, explaining what may have caused the upsurges and -- just as importantly -- the lulls. (Also, according to the cycles, the 1990s should've seen a lull, but saw just the opposite. What happened to explain this?)

PJ: There are "booms" of concern roughly in the mid-1890s, again from 1908-1922, 1936-58, and 1977-present. Real panic years have occurred in 1915, 1950, and 1985. I think the variables that matter are demographic and gender-related. Gender, because in a society in which women are establishing their own set of issues, they draw attention to sex crime as a particular threat to them, and stress male violence. Demography, because of booms and slumps in the proportion of children in a society: The baby boom of the 1950s was by no means the first of its kind.

Equally, there are troughs of concern, when gender politics lie low and sex crime is seen as trivial, and these too are cyclical. The cycle seems to have come to an end in the 1980s-90s, because the voices of gender politics were no longer struggling to be heard but had now established themselves as a firm part of social orthodoxy, based on women getting firmly ensconced in the workplace and the economic order.

RK: On the question of who represents the gravest danger to children, the pendulum has swung many times from family members to strangers, and back again. Please elaborate.

PJ: Societies with intense gender politics focus on the incest problem because it illustrates problems within the family and gender roles; societies with more of a law enforcement emphasis stress the threat from stranger pedophiles. We have gone back and forth on this issue quite as much as the overall cycle of concern about abuse. In the 1910s, the issue was incest, and again in the 1980s; in the 1940s and 1990s, the focus shifted to stranger pedophiles. [199]

RK: What ill effects have come from these child molestation panics? What ill effects are we currently seeing?

PJ: I think that threats to children serve as stealth justifications for policies that advocates would be afraid to avow openly, including hostility to fringe religions (see the ritual abuse panic of the 1980s), homosexuality (witness every anti-gay referendum), and sexual experimentation by the young. Also, they justify a vast and self-sustaining bureaucracy of social workers and psychologists, whose careers and (let's be frank) bank accounts depend entirely on maintaining a level of panic about threats to children.

RK: The murder of a child -- especially coupled with that child being sexually attacked by a stranger -- is tied to the whole concept of child molestation. You wrote that although we can never know how many children are molested, we can know pretty accurately how many children are murdered by strangers. What are these figures, and what do they tell us?

PJ: The problem here is that any attempt to minimize child murder has to sound callous, because you have to use phrases like "only" x children were murdered. But the picture is very different from what most people think. If we take children below the age of twelve (the age-group of interest to pedophiles), then between 1980 and 1994, 13,600 individuals were murdered ih the US, about 900 a year. Of these, over 400 were babies or infants below the age of one, usually killed by parents. Family members killed 54 percent of all child victims. In contrast, strangers accounted for just 6 percent of the annual total, or about 54 children per year. Only about five victims per year involved the murder of a child by a stranger in a sexual assault, the classic sort of crime people imagine when they think about homicidal pedophiles.

RK: There are a lot of people -- mainly feminists and Christian conservatives (those odd bedfellows) -- who still believe that there is a multi-billion dollar child pornography "industry" that spans the globe. Please explain how we know that this is a myth and why it refuses to die.

PJ: In the late 1970s, there were claims abut child porn being a billion dollar industry, and estimates just swelled over the years. In reality, the last real child porn entrepreneur was jailed in the early 1980s, and she (it was a woman, incidentally) never made more than a million or two. The Internet has revolutionized matters, and most people trade child porn for free, with money never changing hands.

RK: I'd like to look at some of the currently accepted ideas about child molestation and see what your research has uncovered about them. First up: Abuse is cyclical in nature. An abused child grows up to abuse children.

PJ: The argument is often stated, but it rests on very weak evidence: Of course abusers claim they were abused, since like everyone else who watched TV, they know the "right" answers to give courts and psychologists.

RK: Sexual contact with adults always scars a child for life.

PJ: Answer as above. There is a good deal of contrary evidence, which publishers are terrified to put out for fear of backlash.

J10 [2431] "When the nation's first sex offender registration law was enacted in California more than fifty years ago, it was created in large part as a tool to harass gay men. Police in the state, like those in the rest of the country, engaged in unrelenting ploys to ensnare gay men and expose them."

[2433] "During the 1930s through the 1970s, gay men lived under constant threat of arrest. Police viewed homosexuality as a contagious, perverted form of behavior that put children at risk and threatened to spread."

[2434] "Undercover police would stake out the bars and flirt with patrons, waiting until one responded with an illegal sexual proposal."

[2435] "The police often freely conceded their true motivation of harassing the patrons; one police captain bluntly stated his own goal through bar raids was 'to keep after them until we run them out of town.'"

[2436] "In a 1937 case...a California sheriff's office received a tip that a large number of cars were visiting a secluded cabin at night. Several officers entered the cabin during the day, punched out some knots in the boards of the walls to create peepholes, and built an observation post in the roof of the cabin where they could spy through cracks in the roof. After returning several nights to observe parties with men 'kissing and caressing each other' and dancing in a 'highly improper' manner, the officers burst in and arrested seventeen men. [2437] Every arrestee was convicted of 'conspiracy' to commit sodomy; some were also convicted of specific counts of sodomy for having sex in a bedroom. The convictions, which carried maximum prison sentences of seven to fifteen years, were sustained on appeal."

[Compare 'highly improper' with the adjective often used in today's sex cases, 'inappropriate.']

"Newspapers would commonly publish the names of [2439] persons arrested in bar raids for solicitation, intending to ostracize closeted men and women. A reporter for the Miami News explained ominously after a 1960 bar raid...that 'the public should know who these people are.'"

[Compare to contemporary registration laws.]

"Men and women arrested on gay-related offenses were deprived of their liberty indefinitely through commitment to mental hospitals as 'sexual psychopaths.'"

[Compare to contemporary civil commitment regimes.]

[2443] "Most officers, being 'very adamant in their desire to have homosexuals registered,' would charge gay men with registrable offenses."

F17 [277] [from Abstract:] "[A] refueled anxiety about sex offenders, as well as recent enactment and enforcement of sex offender registration and notification laws, operate to redraw lines of sexual normality, and to reassuringly but falsely isolate sexual harm within a legally constructed category of persons...[T]he 'sex offender' has been juridically codified as the exhaustive figure of sexual amorality and dangerousness, a position vacated by the once homophobic but now more dignified construction of the homosexual."

[278] "For John Lawrence and Tyrone Garner, iconic figures for gays nationwide, June 2003 was nothing less than world transformative. The Supreme Court declared sodomy laws unconstitutional, and granted previously withheld privacy and liberty protections to gays, lesbians, and their intimate...decisions."

[279] "Things did not bode so well in March of that same year for John Doe, John Doe, John Doe, and Jane Doe, three sex offenders and the wife of one, respectively and pseudonymously. The Supreme Court handed down twin decisions...rebuffing all of the Does' claims seeking constitutional protections from state sex offender registration and community notification requirements. If the 2003 spring/summer Court ushered in the promise of judicial freedom for one historical sexual outcast, the homosexual, it codified another sexual outcast, the sex offender, and declared open season on him.

"Lawrence and the sex offender cases involved regulating marginalized sexual personae, adjudicating the limit of law's reach in citizens' lives, delimiting the liberty afforded by due process protections, and discerning the proper figuration of harm and morality in lawmaking around sex.

"The fault line between the sexually acceptable and the sexually abject, between the terrain of progressive sexual politics and the terrain of sexual perversion, is brokered by the apparently transparent figure of the consenting adult. The presumption of Lawrence that sexual harm is present [280] only where the consenting adult is absent, or at least the kind of harm with which the liberal non-interfering state ought to interfere. But...'consenting adult' cannot capture sexual ethics as cleanly and completely as the Court or the nation would like -- that is, on the one hand, because a whole lot of sex is still harmful that involves legally consenting adults, and, on the other, not all sex among minors or between minors and adults is necessarily harmful..."

[291] "[S]ex offender laws...inform a judicial imaginary that fictively stabilizes and isolates sexual harm onto discrete bodies and character types. The Court does so in, and because of, a national climate increasingly sexually pluralistic and socially progressive where the homosexual is no longer a sufficient repository for sexual amorality."

[303] "The sex offender productively [304] blocks critical thinking about sex and harm...[W]hat mechanizes these laws and their judicial defenses is an absence of measured theorizing on harm, sex and power, an absence that has become a crisis as the homosexual is no longer fair game for subordination and projection, an absence that is then filled in by moralized and fictive certainties and reliably predictable tropes. These certainties and tropes provide not, or not only, a false sense of security, but a false sense of knowing, by locating harm and danger onto discrete bodies and stories. The sex offender is not only a scapegoat but is also palliative, a way to literalize simple understandings of sexual harm and freedom that do not describe the world we live in, but that nevertheless make the world habitable for us. The rhetorical strategies of legislatures and then courts might be perceived as efforts to manage harm and danger by a steadfast refusal to think about them. Rather than consider the distribution of sexually harmful acts across populations, the law has fictively consolidated the harm into a subpopulation.

"The hetero/homo divide in sexual morality is unworkable, archaic, and now defunct. [U.S. Supreme Court Justice Anthony] Kennedy's [who authored the Lawrence decision] homosexuals are loving people who make intimate, transcendent decisions -- they are not gay sodomizers. What takes its place is the divide between consent and non-consent...[T]he morality question is subsumed under the consent question, where everyone classified as a sex offender has presumably violated consent -- whether against the incapable child, the unwilling woman -- and this is morally wrong. [305] However, whether such acts are wrong, and whether rectifying those wrongs is best addressed by overreaching sex offender notification and registration requirements, are separate questions, but they are mashed together as the same...[T]hese latter questions get coded as questions of harm prevention, not morality enforcement, and because they are coded as such they find constitutional shelter."

"[I]t is the very [306] expansion of liberty Kennedy extends to homosexual identities, to consenting adults, that, in good binary form, in the hope of preserving a social order that is always already ruined, requires curtailing liberties elsewhere, in a newly re-publicized sexual minority, the sex offender...Since offenders are perceived as uniformly harming, liberty curtailment here looks not like mandating a moral code, but doing the right thing."

"[T]he person who crosses the boundary of legally-defined consent, who crosses the boundary of legally-defined ages of majority and minority, is the anti-John [307] Lawrence; he makes not intimate decisions but recidivates impulsively...[E]ither one is a consenting adult having sex in private, whose sex is good and free, or one is a sex offender, whose sex is harmful."

[310] "For Justice [Byron] White [in the 1986 Bowers decision upholding the constitutionality of 'sodomy' laws], turning the homosexual into a sex act purposefully devalued the homosexual."

L22 [93] "The figure of the modern sexual predator occupies the space formerly associated with the homosexual in the social imagination. As the queer theorist Lee Edelman has suggested, 'the pedophile,' now portrayed as the threat to children's safety and well-being, evokes homosexuality's imagined antisocial sexuality, its wholly negative relation to reproduction, children, family, and the future. The terror he evokes draws sustenance from all the evil that American culture once unambiguously attributed to the homosexual, whose depraved condition was imagined, contrarily, to be both congenital and contagious." [Emphasis original.]

---

At this point, we will examine the work of a Spanish professor (University of Zaragoza) by the name of Augustín Malón Marco. He draws some quite interesting parallels between past crusades against masturbation, and the present preoccupation with child sexual abuse:

M37 "The Morbid Hypothesis in Onanism and Sexual Abuse: A Comparative Study."

"[M]y approach...[is] an analytical perspective which ultimately allows us to socio-historically compare the modern danger of sexual abuse with others of past epochs. Foremost among them -- without any doubt whatsoever -- is the obsession with anti-onanismn [masturbation] of the 18th through 20th centuries, because in both cases it was a matter of a great cultural narrative, scientifically articulated, in which childhood and eroticism are joined together in an equation of danger as well as individual and collective suffering.

"I will focus on the morbid hypothesis shared by both discourses. According to this hypothesis, central to the two theories, both the act of masturbation as well as experiences considered 'sexual abuse' are deeds that are necessarily harmful and destructive to children/adolescents."

"In both cases, I will be referring to those authors who believe or have believed that in those acts they have found the great cancer on humanity , causally relating them to an endless series of problems and pathologies in adult life.

"We will learn, well before any narratives are presented, that we are talking about a new social blemish, a terrible menace capable of utterly decimating our society, principally the youngest among us, just as it happened with onanism in its time, defined in similar terms:

'In my opinion, neither plague, nor war, nor small pox, nor similar disease, have produced results so disastrous to humanity as the pernicious habit of onanism. It is the destroying element of civilized societies, which is constantly in action and gradually undermines the health of a nation.' (Dr. Parisé, 1928, cited in Gilbert, 1980: 268)

"The disastrous consequences on an individual and collective level are major features of the figures that are given out relating to the problem. In both dangers, the principal of ubiquity is established. Masturbation was considered a dangerously widespread problem, liable to crop up at any moment: 'Children and youth would supposedly masturbate themselves in practically any given situation: while reading romance novels, in church, with their hands stuck in their pockets, under their desks, riding on horseback, jumping and swinging, climbing trees.' (Elschenbroich, 1979: 165)"

"The consequences of the masturbatory act were enumerated in lists of morbid symptoms presented as effects of that vice which, sooner or later, the masturbator would begin to manifest. In the same way, in the course of sexual abuse the customary paradigm suggests that a long list of dramatic physical and psychological consequences are inevitable. The list provided, which is practically inexhaustible, is known to all. It gives the impression that the experts of the time had no qalms about associating that variable with all sorts of common pathologies, problems, ad experiences which are largely inescapable because they are simply inherent in the human condition -- e.g., sadness or relationship difficulties."

"As [the sexologist John] Money states: 'The catalog of indicators of sexually abusive behavior was borrowed from the 19th century catalog of the indicators of masturbation.' (Money, 1999: 29) And in another of his works: 'Kellogg's listing of suspicious signs has been given a new lease on life currently by the professional detectives of child sexual abuse. Here is an example of those who have not learned from history being condemned to repeat it, replete with all its dreadful consequences.' (Money, 1985: 97)"

"[T]he great achievement of the sexual abuse discourse consists in converting a wide variety of acts and experiences -- ranging from the most atrocious violation to the most tender caress -- into central biographical and necessarily transcendental events that are characterized in very negative terms. Something similar occurred with masturbation in its own time, an experience that was not seen as insignificant...In both cases, the victim does not escape the evil: with masturbation the victim will pay for his/her own vice; in abuse, he/she will be condemned to suffer the vice of others.

"If the anti-onanism discourse converted auto-eroticism into one of the most contemptible and destructive acts for the individual and the community, that of sexual abuse has converted every erotic experience between a minor and an adult into one of the worst things that could happen and one of the vilest acts that could be committed. When the pederast was converted into a universal symbol of evil and villainy, the abuse victim was installed as the epitome of human suffering. The premise of the trauma is the scientific expression of that dogma which is spread by means of a tragic rhetoric of pain and devastation, in which the minors involved are often equated to survivors of the most atrocious experiences -- e.g., concentration camps.

"Near the end of the first half of the 20th century the masturbatory hypothesis was definitively abandoned by experts who, in its place, introduced a condescending view in which auto-eroticism was considered an innocuous and even positive experience in a person's development. It certainly could cause great suffering, but this, it was concluded, would arise not from the experience itself but through socially-induced problematization...In fact, in the space of a few decades, experts went from inculcating people that masturbation was tremendously harmful, to trying to convince them of its innocuousness or newly-discovered virtues:

'By the irony of history, this view -- that masturbation is harmful only if, from ignorance or misinformation, the patient worries about it -- is all that now survives of the masturbatory hypothesis. Two centuries of indoctrination have taught the public a lesson it can forget less quickly than can its teachers; and today the principal concern of medical writers on the subject is to persuade the public that its fears of the consequences of masturbation are groundless.' (Hare, 1962: 9-10)"

"At the time that we find the first signs of authors establishing both theories, we observe that the two again overlap in terms of their origins, given that both emerged from clinical settings where some of them encountered a high incidence of masturbatory behavior, and others, previous experiences of sexual abuse and incest:

'It is easy to understand why the masturbatory hypothesis (that is, the idea that masturbation is the cause of mental disorder) should have been proposed. Many mentally disordered patients masturbate openly and frequently, whereas in sane persons the act of masturbation is rarely observed. There is an obvious association between masturbation and mental disorder and (...) we tend to suppose as causal of a disease any associated activity which is itself thought to be harmful.' (Hare, 1962: 11)"

"Immediately following the intense social and moral changes [of the 20th century]...there developed a sense of relativism and an absence of points of reference, something particularly pronounced in the area of eroticism, where the revolution certainly was intense. In that context...the abuse-trauma binomial was converted into the great point of reference for the new moral order...Finkelhor * (1999) himself would acknowledge that the morbid hypothesis of sexual abuse had certainly been exaggerated, in order to convince skeptics of the gravity of these acts."

[ * David Finkelhor is widely recognized as the 'pioneer' or 'dean' of child sexual abuse research/polemics in the United states, publishing the first major, contemporary treatises on the topic (in book form) in 1979 and 1984.]

"When and why did the masturbatory hypothesis decline? At what moment did the hypothesis for sexual abuse come into being and what can we predict regarding its future?...Hare (1962) cites four possible factors that might account for the decline of the masturbatory hypothesis:

a. From cause to symptom. This refers to masturbation increasingly being viewed as a symptom, rather than a cause, of mental illness...In the case of sexual abuse, more than a few authors and theories subscribe to something similar, looking at it, in turn, as a symptom of other social and familial problems, which might also account for additional, future difficulties...This hypothesis has been gaining a certain degree of weight...Finkelhor has defended the validity of that alternative for a significant number of cases, pointing out that sexual abuse is in fact associated with contexts that are already problematic.

b. A common act. ... Masturbation ceases to be a direct cause of pathology and is converted into a risk factor. Something similar has been happening with sexual abuse -- i.e., that it would only have traumatic effects on persons wbo were in fact already affected by a problematic and mistreatment-laden biography.

"With masturbation, the recognition that many people masturbate frequently without showing problems of any sort, or that there were many people with problems who either did not masturbate or did so only rarely, would finally work together to bring about the end of the masturbatory hypothesis.

c. An inexplicable independent variable. ... Tissot's work is replete with self-accusatory accounts that illustrate, from the mouths of victims, the horrors of this [masturbatory] vice. Accounts that never doubted not only the existence of the vice, but the causal logic by which the patient was reasoning:

'I had the misfortune from my early childhood -- I believe between the ages of eight and ten -- of acquiring this pernicious habit which, very quickly, ruined my temperament; but above all for some years now, I have felt myself submerged in an extraordinary depression; I have very brittle nerves, my hands lack strength, always trembling and continually perspiring; I suffer violent stomach pains, pain in my arms, in my legs, sometimes in my kidneys, in the chest and often in the torso; my eyes are very weak and weary; I have an atrocious appetite; and, nevertheless, I am becoming ever thinner, and my pallor gets worse every day.' (Tissot, 2003, 47)"

"[T]he majority of researchers have not only accepted without question accounts of past sexual abuse but, more to the point, have accepted with scarcely any criticism the causal logic that would be established in these accounts between that experience and subsequent problems...I believe that a good portion of that tragic thinking which is becoming more and more widespread among the clients themselves, by which my current problems are attributed to past experiences of sexual abuse, has been disseminated to the public at large via an expert discourse...which has been simultaneously a driving force for as well as a beneficiary of a culture in which everyone wants to be an innocent victim and no one wants to be a responsible agent.

"At the end of the 19th century, with the decline of the masturbatory hypothesis, the possibility began to dawn on the psychiatric profession that patients' melancholic stories were self-interested self-accusations which the physician should regard with a certain degree of skepticism. It became accepted that the subject might invent or at least exaggerate and alter the nature of past experiences in order to absolve themselves of blame for other things. In the case of sexual abuse this would be, for many, an object of scientific and moral anathema, inasmuch as it would dare to not acknowledge the sacrosanct status of the victim with which some persons present themselves to us in the clinical setting.

"Not only were all accounts of sexual abuse accepted in therapy, but the causal hypothesis that the patients came in with was reinforced and, in case they did not come in with it, sometimes it was suggested to or even imposed on them...It is, moreover, probable that the worse I perceive my current life, the more negatively I will elaborate on my biography, given that it is easier to ascribe fatalistic power to previous negative experiences.

"In the case of sexual abuse, the fact that we must rely on an independent variable which is very difficult to empirically substantiate -- a characteristic which it shares with masturbation -- adds to its conceptual fuzziness. It is highly probable that, in time, it will come to be accepted that to deal in a dichotomous way -- abused vs. non-abused children -- with a reality as complex and diverse as that which claims to be covered by the concept of 'child sexual abuse'...is to fall into a methodological error of the first order."

d. The problem of the traumatic mechanism. ... An initial problem, confronting those who would defend this [morbid] hypothesis [for child sexual abuse] is rendering coherent the ascription of the same traumatic characterization to an infinite variety of experiences...They should explain why, for example, a consensual and agreeable relationship...could be equally as injurious as a violent and/or unpleasant experience. Or why a caress of the genitals or viewing pornographic images are more harmful experiences than an insult or a slap. Or explain how some very emotionally intense, menacing, and painful experiences -- adoption, parents separating, an accident, etc. -- are considered innocuous in the long-term, while other, equally painful but one-time experiences are treated as more serious, merely due to their being designated 'sexual.' And finally, they should be able to explain why an erotic experience with another minor of similar age is not traumatic whereas it certainly is so with an adult, when in reality it could have the very same affective and social implications.

"Some authors, in order to attempt to address these and other weaknesses of the morbid hypothesis, have tried to find some element that would make these experiences something particularly harmful, as well as distinguishable from all others...One of the most cited models is certainly that of Finkelhor & Browne (1985). According to it, sexual abuse is a traumatic experience due to the effect of four traumatogenic dynamics : traumatic sexualization, deceit, defenselessness, and stigmatization."

"[T]hese and other, similar models present many theoretical problems. For one thing, none of them are applicable to the great majority of the experiences cataloged as sexual abuse. Moreover, it is a question of models that are incapable of explaining why these experiences must be more injurious than other experiences that involve similar feelings and sensations. Many of them end up -- in order to explain why these experiences are harmful -- deferring to matters of morality and taboo, elements very difficult to deal with in scientific terms, and of course equally incapable of accounting for the variety of experiences and reactions which emerge from these acts. Moreover, they provide a basis for thinking that if these were ascribed less importance culturally, the problem would disappear."

"[W]e might ask ourselves about the persistence -- for more than two centuries -- of the masturbation hypothesis, as well as about the conservation of the other [sexual abuse] hypothesis. As Hare points out...[at] the turn of the 19th century...there would already have been data seriously questioning the viability of that theory, thus making it surprising that it would still continue to endure...for another century. Hare points out three types of reasons for this: medical and moral conservatism, a lack of skepticism, and the existence of distinct fallacies in reasoning which would render its scientific questioning very difficult.

a. Conservatism . ... Up until 1881, there would have been neither any questioning of this [masturbation] hypothesis as a whole nor anyone who would empirically test it...The other conservatism that Hare talks to us about is the moral one, in reference to the tendency on the part of physicians to regard an immoral act like masturbation as also being injurious to health.

b. The usefulness of a hypothesis . In medicine, Hare (1962) says, any hypothesis is better than nothing, and a hypothesis is respected more not for being true but for being useful. The masturbatory hypothesis would allow for the reinforcing of a morality in crisis...and at the same time allow the hygienists to justify their existence and offer the community a rational theory for the prevention and cure of a great number of ills. For want of a better hypothesis...the masturbatory hypothesis enjoyed an excellent reputation for many decades and continued to be useful well into the 20th century for symbolic and moral purposes distinct from medical knowledge..."

"In the same way that the alienists [proto-psychologists/therapists] of the 19th century claimed to have found self-evident conclusions in their investigations into the vice of onanism, sexual abuse researchers claim to have found solid evidence of a causal connection between sexual abuse and future problems where, at the very least, a degree of caution may well be called for."

c. False concepts and reasoning . ... In the first place the... skewed sample fallacy , given the alineists' tendency to observe sick people and then extract causal conclusions from this. A fallacy which...has for some time now also been ascribed to studies of sexual abuse centered on clinical, prison, or volunteer samples.

"In the second place the false analogy fallacy, by which masturbation was equated with the effects of alcohol on people's minds. In the same way, during the '70s and '80s, experiences of erotic significance between minors and adults were basically identified with physical abuse and maltreatment...The great achievement along these lines has been the successful establishment, above all via the arguments of feminist authors like Dworkin and McKinnon, of an analogy between sex and aggression, in which a caress is equated to a punch, and desire, to violence.

"A third error in reasoning consists of a causal nomenclature driving the masturbatory hypothesis which makes it difficult to critique it. The clearest example is so-called 'masturbatory insanity,' a sickness that would be caused specifically by masturbation, and whose mere name made looking into other possible origins of the condition enormously more difficult. Something similar would occur when talking about certain individual traits as 'characteristic of masturbators.' Something similar has, in turn, been happening in the case of sexual abuse, utilizing -- without any reticence whatsoever -- terms like symptoms, consequences, outcomes, or effects of sexual abuse in order to account for human realities that could just as easily be due to many other factors. Except that in the case of sexual abuse, I would add, there is a fallacy based on the inappropriate use of a traumatic nomenclature in which a great variety of reactions on the part of minors -- fear, surprise, disgust, fright, and discomfort, or even pleasure -- absolutely normal in such experiences, though many are not so shocked -- have been equated with the most extreme trauma and suffering...Or, lastly, the indiscriminate and confused use, beginning with the term sexual abuse itself and going on to many other terms such as victim, aggressor, injury, offense, survivor, etc....The existence of this language, and above all the non-existence of alternative language, makes any other approach to these kinds of experiences difficult...Last to be cited is the confusion that has become established, in research into the effects of sexual abuse, concerning the concepts of correlation and causation, constantly conflating the two and implicitly suggesting...that correlation is causation, something which is logically erroneous.

"A final effect cited by Hare refers to the Oedipal effect of the self-fulfilling prophecy . In the case of masturbation it seems clear that an elevated number of persons would have suffered and fallen ill simply because of their personal expectations regarding the disastrous effects generated by their conduct. Or that some sick persons...would have attributed their present ills to a past history of onanism."

"Another aspect of the [morbid hypothesis of sexual abuse] problem consists of an additional dogma: that of imposed victimhood. This would lead to increasing difficulty in publicly expressing and sharing experiences which have not been experienced negatively, are not considered important events in one's biography, and are not seen as having an impact on one's current problems. It would mean being obliged to express suffering and pain vis-a-vis acts that actually had not entailed those feelings. It would mean not being able to forgive, forget, or understand. And lastly it means converting certain pederastic relationships, wanted by the minors and experienced positively...into unconfessable acts about which we grow ever more ignorant."

"It is crucial to remember that the masturbatory hypothesis would not be limited to a mere medical theory...This theory formed part of a great social movement...The implicit paradigm...would come to signal...that certain immoral conduct -- especially of an erotic nature -- would lead to the physical and mental degeneration of the individual and all of his offspring. Therefore what was at stake was much more than curing a patient or preventing an illness. The future of humanity was at stake.

"This means that when alienists or pedagogues would combat masturbation, they were acting as nothing less than the 'guardians of civilization.' (Hare, 1962) This spirit of a redemptive crusade would stop at nothing; any preventive mechanism was considered valid, in order to prevent such an alarming wickedness from multiplying.

"The modern theory of sexual abuse has followed a similar course. This danger emerged within the framework of an ideological and moral paradigm which claimed to account for all of the complexity of real problems by resorting to a single explanation: the evil of masculine eroticism...The Hippocratic commandment of first do no harm was frequently replaced by a battle against sexual abuse in which the professional crossed over to being an activist and soldier.

"Gilbert would conclude that 'the linkage between masturbation and evil consequences was not a product of observation, but of ideology. It was assumed, and it is the reasons for this assumption that must be examined.' (Gilbert, 1980; 273)"

"[W]e might conclude [re: sexual abuse] something similar to what Hare asserted regarding masturbation:

'There is no way of disproving the masturbatory hypothesis -- or, indeed, any causal hypothesis in psychiatry where there is no associated objective and measurable change in the patient; all we can say, from the evidence, is that the association between masturbation and mental disorder is weak and inconstant and that therefore, if masturbation is a causal factor, it probably is not a very important one.' (Hare, 1962: 19)

"Confronted with the phenomenon of child sexual abuse ...societies have responded by establishing an apocalyptic view of it in which emotions and the irrational have supplanted calmness and thoughtfulness...In my opinion, the challenge we have before us could follow three courses of interest:

1. Seeing whether we are capable of separating Eros [the self-preservative instinct] from Thanatos [the self-destructive instinct] and whether this is worthwhile.

2. Trying to flesh out a relational ethic -- erotic or not -- between minors and adults that is not enslaved to supposed long-term harmfulness.

3. And...to begin to discuss whether it is worthwhile to follow Andre Maurois's suggestion that in order to be happy, catastrophes have to be treated as annoyances, never the other way around. That is, projecting a less tragic view of our existence, and being capable of thinking that quite often, a bad experience can end up being simply a bad memory. And sometimes, not even that."

M38 "From Onanism to Sexual Abuse: A History of Two Obsessions"

[77] "[I]n the fight against child masturbation -- a sort of self-abuse -- it was not unusual to look with suspicion upon certain adults who were around children, such as educators, clergy, nannies, nurses, and servants."

"I dare say that equating the issue of masturbation during the 17th through 19th centuries with that of sexual avuse in the last decades of the 20th might seem absurd to many; and I know of some people who would fly into a rage upon encountering such a hypothesis, given their, on occasion, laudable militancy in the fight against the sexual abuse of minors. We know that the practices and discourses emphasizing the terrible consequences of children masturbating -- pallor, hives, acne, boils, aches, deafness, trembling, hemorrhaging, and all of the other personal misfortunes imaginable, not to mention social degeneracy -- were totally groundless...Nevertheless, we are told that the conclusions regarding sexual abuse are based on rigorous scientific observation..."

[78] "[M]asturbation can have tragic consequences in some children, teenagers, and even adults, though they never reach the extremes of blindness or even facial blemishes; but we understand that when they would or did occur, they were caused by the problematization that would be telegraphed by parents, teachers, doctors, etc. in their educational efforts regarding -- and dramatic reactions to -- these acts...[T]hese enduring negatives can, in and of themselves, result in a person suffering illnesses, conflicts, and difficulties..."

"[T]he notion of reducing the problematization and pathologization of ['sexual abuse'] experiences as a way of helping their 'victims,' acknowledging the possibility that some of them are not necessarily harmful...is an idea scarcely mentioned at the present time and, we might say, is politically...incorrect."

"It is not viable to consider...[79] the possibility that through a proper sexual education, or via different attitudes towards children's sexuality, lasting positive or less negative effects from these types of experiences might be fostered.

"The medical mechanisms -- pedagogically instituted for the prevention and/or detection of masturbatory acts -- were, by all indications, disproportionate; included were techniques from sleeping with the lights on to sadistic mechanisms of infibulation [attaching a ring, clasp, or frame to the genital organs], from controlling the diet to the type of clothing designed for children."

[80] "[T]he potentially dissuasive impact of increasing the condemnation [of sexual abuse]...is evidently arguable..."

"[G]iven that the principal problem, is sexual abuse of the incestuous type, in order to prevent through education, we should take a serious look at teaching boys and girls to protect themselves from their own fathers and mothers."

[81] "I will not discuss -- though I will question -- whether it is a good idea to uncover and denounce the majority of child sexual abuse experiences, but I do have to ask whether this end justifies some of the means proposed, and whether we shouldn't re-orient our investigations in terms of new perspectives for comprehending the problem and its solution, away from the combative and blind crusade that is already showing signs of cracking."

"It is evident that in a significant percentage of [sexual abuse] cases the situation is, sadly, a destructive one; but it is also clear that in many others, also considered sexual abuse, it is not so harmful, and can even be positive."

[83] "Stainton, Stainton, and Musitu (1984)...question the widely-held belief that sexual abuse must necessarily have inevitable consequences for minors; these beliefs are converted into reality, and apparently are not, in many cases, based on studies with solid foundations but rather on suppositions, derived from the authors' own particular experiences, which are then cited in their work."

"At the moment, it is not possible for me to cast doubt on what current works assert regarding these types of experiences and their negative consequences. Nevertheless, they do run the risk of converting child sexual abuse into the sole source of many problems facing children and adults; and I do mean sole . The schema presented is: sexual abuse in childhood >>> specific future problem ...The formula is simple enough to have permeated the entire [84] world with ease and without criticism, but it is so false and incomplete that it neglects the complexity of these processes and the influence of multiple factors on their development."

"The way in which a subject experiences an incident of abuse and the manner in which that experience is interpreted will effect the person in the short- and long-term depend on what happened to him or her in a given situation and how that is interpreted; the idea that his or her future would be constrained by an incident of sexual abuse experienced in childhood seems excessively reactionary and, I dare say, unfortunate."

"[M]y sense is that this intimate and inevitable association between child sexual abuse and its ominous short- and long-term consequences is not based on a solid scientific foundation and that it is more a question of faith which, consciously or unconsciously, has been elevated to the status of truth. It is even possible that, upon being characterized as such to the public-at-large and to professionals in general, it actually becomes so, in reality."

[88] "[N]either do we know how intervention in cases involving the sexual abuse of minors is actually unfolding...[We need to uncover] the way in which these have been constructed historically, cultural and individual limitations on the interpretation of these acts, modes of intervention and their utility, the experience of all of the protagonists, intentions -- premeditated or not -- for preventing these kinds of acts through mistrust, the false accusations, the 'abuse' of abuse...[and] the necessity of new categories that getter grasp the diversity and complexity of reality, etc., are some of the many aspects that are left for us to look into, in order to comprehend this reality a little better, starting with the possible existence of other, more sensible and less criminalizing premises which, instead of leading us to fight something, invite us to understand it."

"The nets laid out by the adult in order to protect the child are, at the same time, snares in which the adults themselves remain trapped...because the discourses and mechanisms put in place to prevent or eliminate a 'problem' are not innocuous tactics, but rather ones which sometimes stimulate unexpected transformations in other spheres of our lives. In the case of masturbation, it has been suggested that efforts designed to impede it may, in fact, have promoted the very conduct it would claim to be eliminating, perhaps merely drawing attention to it."