Begging the Question
Friday night, after it was announced that a career child molester had confessed to abducting and murdering a missing little girl from Florida, one of the cable-TV talking-head analysts (does it matter which one?) kept repeating, "We don't know how to treat these people." Will it ever occur to the analyst that child molesters don't need treatment because they aren't sick? Such evil doesn't call for treatment, but imprisonment.
posted by Sheldon Richman @ 3:24 PM
20 comments
20 Comments:
If "whether or not the issue is evil is arguable," what conclusion should the legislators draw? Does it make no difference why or how a person is "removed from society"?
It is no longer a surprise that the yap peddlers on the tube robotically repeat this line, but I remain bemused that the religionists, and those who lay noisy claim to moral rectitude, don't pause to consider the implications. Where are Bill Bennett, George Gilder, et. al. as psychiatry sucks the moral stuffing out of the country?
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The TV analyst (I forget if she was a lawyer or a psychologist) may have told the truth, but the upshot of her comment was that we have to keep looking for a treatment that will work.
I don't know the details of the original case in question, but:
We should not be focusing on punishment of the offender, but rather, protection and restitution of the victims.
I think psychiatry has not only been used to excuse (and then pretend to "treat") offenders, but that it has also usurped the justice system, locking away people on the basis of their thoughts, and becoming judge and jury when the person has been found in posesssion of illegal materials (materials which are not harmful in themselves, such as pictures).
Take the case of Brian Dalton, who was charged with violating state laws against obscentity involving minors, and locked up because of it, all because of his writings in a diary. No doubt many psychiatrists poured through his writings. Luckily, the case was eventually dismissed.
To be quite blunt, I think posession of child pornography should be legal. (Notice I said posession, not production with children.) Fantasies, and electromagnetic images of fantasies (such as downloaded pictures), should be legal. Only when they cross the line into actual molestation, should the person be locked up, and then it should be the act, not the image, that is prosecuted, and it should be held up to the same standards of reasonable doubt as any other crime.
That may sound cruel, but I'm an absolutist when it comes to free speech. Like I think Michael Badnarik said recently, yelling "fire" in a crowded theater is protected by the First Amendment. What's not protected by the First Amendment, is one's civil (not criminal) liability for the consequences of yelling "fire". In other words, one is liable not for violating a law prohibiting yelling "fire" -- such laws are what the First Amendment is all about -- but one is liable for any of the consequential damages arising from yelling "fire".
As far as sexual fantasies and pornographic images, they too should not be regulated by speech codes or made criminal. Only the positive action of molesting a child (including coercing them into performing for pornography) should be criminal, and since mere posession of images or other expressions of thoughts and fantasies still leaves reasonable doubt as to whether a specific individual molested a specific victim, such images and expressions should not be made criminal, nor considered sufficient evidence by themselves.
And the age 18 test is quite arbitrary, making consensual sex between 18-year-olds and 16- and 17-year-olds criminal, but not enforced consistently.
Psychiatry does not have the answers. It cannot predict people's behavior well enough to justify depriving them of their rights, and it cannot change people into becoming what they don't want to become. It should have nothing to do with the adjudication of sexual crimes.
Lee Killough writes: "Like I think Michael Badnarik said recently, yelling 'fire' in a crowded theater is protected by the First Amendment. What's not protected by the First Amendment, is one's civil (not criminal) liability for the consequences of yelling 'fire'."
This is wrong. Murray Rothbard clarified this issue long ago. Yelling fire (falsely) in a theater is not protected speech. It is a violation of the contract the yeller has with the theater owner. He bought a ticket on terms that did not include maliciously disputing the show. Thus it is not an instance of free speech, but a violation of the rights of the property owner.
Freedom of speech is rooted in property or else it leads to absurdities. I have no right to make a speech in someone else's living room if he does not wish me to do so.
Like all rights, the right to free speech is ultimately resolvable into a property right. And there can be no right to violate the property of others.
Sheldon, you missed my point entirely.
I said it was not a First Amendment issue.
Re-read my post.
When I say "protected speech", I do not mean speech "protected" by an arm of the state, with guns, judges, etc. making decisions for private property owners.
I merely mean speech not prohibited by the state. The First Amendment says "Congress shall make no law...".
If I want to open up a theater called "Free Speech Theater -- Where You Can Yell Fire", then that's perfectly okay. It should be my right. And if legislators were to then pass a law explicitly outlawing yelling "fire" in theatres, then it would become a First Amendment issue.
I think you entirely misread what I said. I was saying that it is "protected" speech insofar as it is not the "exception" to the First Amendment that it often gets cited as.
Also, in response to the commonly-made claim that yelling "fire" is not protected speech because it can do harm to other persons, my response is that a person is only civilly liable for actual harm done in such a situation, not criminally liable for disobeying [state] speech codes. This civil liability involves the implicit contract between the patron and the owner and other patrons.
I did not say that yelling "fire" is "protected speech" because an arm of the state is going to come in and tell a theater owner than he must tolerate someone's speech. I've never said that private property owners owe you or anyone else the right to speak on their property. Quite the contrary.
Read my web page for my views on free speech. I think you'll find we agree more than your comment suggests. You misunderstood me. We agree.
I don't see where I misread your earlier post. Of course someone could open up a theater and warn all comers that he permits false cries of fire. But we're talking about a regular theater. If someone yells fire (falsely), the owner should be able to sue him for damages (let's say everyone stampeded out and destroyed the place), and he should win. The perpetrator should not be able to claim the First Amendment in his defense. Thus, it is not protected speech. Rather, his speech was an action that violated the property rights of the owner and, by extension, of the other theater-goers. Thus this "speech" is prohibited by the state in the sense that all property-rights violations are prohibited by the state.
I'm not clear what you mean when you say it is protected.
I think I've noticed a common thing with my posts on this forum: People misunderstand my posts because they think I oppose freedom of contract simply because I oppose government interference in such contracts. Examples:
1. I say that patients, pharmacists, and doctors should be able to come up with their own system for prescription drugs, without state interference.
Mira assumes this means I would support it if pharmacists required doctors' prescriptions.
No, it means that I support whatever system a particular set of individual patients, doctors, and pharmacists can come up with that has the unanimous consent of all parties. This might be different for some patients than with others -- it's their choice. For some patients, this might include the right not to disclose their doctor or medical information to pharmacists. It would not be a monolithic system -- it would be free for the parties to decide themselves.
Just because I oppose government interference and propose private solutions, don't mean I support private coercion.
2. I say that yelling "fire" is speech protected by the First Amendment, not the exception that many like to say it is.
Sheldon assumes that I want the state to come in and interfere with peoples' right to private property and contract, by forcing unwanted speech to be "protected" on private property.
No, I simply do not want state inteference in such right of contract and private property, which a law banning "fire" would clearly do, and which the First Amendment was clearly designed to protect. The First Amemdment's protection is not protection from individual responsibility for speech, nor is it the right to protected speech on someone else's property, but, rather, it is the protection of speech from government interference.
Clearly government has no right to such inteference, even in the case of yelling "fire".
Just because I oppose government interference in speech, doesn't mean I support private coercion of speech.
It may be a libertarian blind spot, that I do not easily see how these arguments can be so misconstrued.
Of course private property is the basis of rights. Of course you need the unanimous consent of all parties in a contract. Of course an individual is responsible for his/her actions. Of course, of course, of course, ...
"No, I simply do not want state inteference in such right of contract and private property, which a law banning 'fire' would clearly do, and which the First Amendment was clearly designed to protect."
If I own a theater and someone begins giving a speech during the movie and disrupts it for everyone else and I call the cops to have the man removed, is "the state" interfering"? If so, then that man's speech is not protected by the First Amendment.
I am not talking about a specific law banning the yelling of fire in a theater. I am talking about the common law of property, which is codified in what we mean by "the law."
My point would apply even in an "anarchocapitalist" setting, where there is no monopoly government.
"If I own a theater and someone begins giving a speech during the movie and disrupts it for everyone else and I call the cops to have the man removed, is 'the state" interfering'? If so, then that man's speech is not protected by the First Amendment."
That's not a First Amendment issue. That's trespassing.
"I am not talking about a specific law banning the yelling of fire in a theater."
I am. Those laws are often quite arbitrary, and I was trying to make the point that state laws against posession of child porn are just as arbitrary as laws against certain forms of speech. Or drug laws. It is those laws which the First Amendment is supposed to protect us from.
The Constitution limits government. It does not define the terms of private arrangements, nor can it be used to settle them. It cannot be a constitutional issue if government is not involved.
If a theatre owner kicks someone out for disruption, that's their private right. It's not a constitutional issue.
But if the police come in and shut down a theatre without the consent of the owner, because it shows "offensive" things, then it may become a constitutional issue.
"I am talking about the common law of property, which is codified in what we mean by "the law."
Absent government force, whether codified in law or not, that is correct.
Lee Killough writes: "And the age 18 test is quite arbitrary, making consensual sex between 18-year-olds and 16- and 17-year-olds criminal, but not enforced consistently."
What age of consent would not be arbitrary? Would you have no age of consent? Would you have no age of consent applying to partners of roughly the same age? What about one that applies sexual partners of greatly disparate ages, such as a man of 40 and a girl of 12? If you would have an age of consent law, where would you draw a line that is not arbitrary?
Lee Killough writes: "Only the positive action of molesting a child (including coercing them into performing for pornography) should be criminal, and since mere posession of images or other expressions of thoughts and fantasies still leaves reasonable doubt as to whether a specific individual molested a specific victim, such images and expressions should not be made criminal, nor considered sufficient evidence by themselves."
One could oppose criminalization of possession of such pornography while accepting its admission as evidence in a molestation case. That he was stimulated by sexual images of children can be considered part of a defendant's motive. I don't think such evidence is substantively different that, say, including a subscription to "Bentley Lover's Gazette" as evidence that a defendant accused of stealing a Bentley had a motive in his fascination with that car.
Neither the porn nor the subscription alone is proof of a crime, but each should be admissiible to suggest motive. All sorts of items that are legal to own are introduced for such purpose.
Mira wrote: "A similar matter occurred here in the Netherlands recently. An employe of a nursing home had taken photographs of elderly, demented patients in his care while they were being showered. When this came to the attention of the management, he was immediately fired. Now he is appealing his dismissal in court. I hope he loses."
Along the same lines as the comments to Sheldon w.r.t. the First Amendment, I would hold that the management has the right to fire him, and that there is no protection, from government or otherwise, of "speech" or activity such as that on private property.
If it's a government-run nursing home, then the issue gets much grayer, and that's why, I think, we should separate medicine and state (and school and state, church and state, banking and state, etc.).
Only perhaps if there was an employment contract stipulating the exact terms of his termination, and he alleged that he was not fired on those terms, would I think he has a case.
As for the victims whose privacy was violated, they should be able to have the photos returned to them or destroyed if they did not agree to having them taken.
I would agree with you that pictures of real children and others incapable of agreeing to being photographed, represent violations of their privacy. But I would not go so far as to say that this justifies lifetime incarceration or monitoring of individuals in possession of such images, or criminal statutes outlawing all such images. It simply means the images need to be returned to their rightful owners, and any crimes committed against them (such as rape) need to be ascertained carefully, and prosecuted only after hard evidence of real crimes is obtained. Simple possession is not enough proof, I would argue.
If a possessor were caught, and the pictures were considered real enough to have involved real persons, then the possessor would have some responsibility to tell how and where he/she obtained the pictures, so that the real victim, and the one who photographed them without their consent (age of consent is a whole 'nother can of worms), can be found.
There's a neighbor down the street from me who's in the Texas database for sex offenders, and you can find her name, age, address, and criminal history on the internet. Her only crime: Possession of child porn on a computer. Nothing else in her record. It's a Scarlet Letter kind of thing.
I'm sure that once someone found out she had those images, whether because she was tricked into downloading them onto her computer by someone who was watching her, or someone found them on her computer, she was subjected to psychiatric exam, to judge whether she had "personhood" worthy of rights. But now she will have that label on her for the rest of her life, and she will be required, by criminal statues, to "register" that fact everywhere she goes, or face incarceration.
It is those criminal laws that I find most appalling, and most in need of constitutional restraints. I would not say the same about private individuals' or companies' choices to reject objectionable persons from their property.
Lee Killough writes: "I support whatever system a particular set of individual patients, doctors, and pharmacists can come up with that has the unanimous consent of all parties. This might be different for some patients than with others -- it's their choice. For some patients, this might include the right not to disclose their doctor or medical information to pharmacists. It would not be a monolithic system -- it would be free for the parties to decide themselves."
I oppose the prescription drug laws, but this alternative approaches what anti-capitalists criticize as the free market as a suicide pact. It is not a "system" so much as it is anarchy.
In practice, people rarely have the authority, time, or desire, to hammer out contracts for each eventuality. If I become a Sam's Club member, I don't have my lawyer work with WalMart's to reach a mutually satisfactory arrangement. WalMart sets all of the terms for membership and I either agree or don't set foot in the place. All exceptions to the rules are at the discretion of the property owner: WalMart.
There isn't enough time in life to develop unanimous consent arrangements for all circumstances. I would expect a physician to inform me of his policies re: privacy and treatment philosophy, and I would tacitly agree to those terms or find another doctor with policies more agreeable to me. Same with a pharmacy.
Indeed, one might ask for an exception here and there, but that is a favor that the doctor or pharmacist, who has property in himself, may grant. If he does not so choose, my recourse is to take my business elsewhere.
As a consumer, every time I do business with a company I do so on the seller's terms. I may ask him to modify his terms, but if he doesn't my power lies in refusing to buy. The notion that all parties in the marketplace create a system of unanimous agreement is as fanciful as the idea that all women will say yes if you negotiate fairly for sex. In both cases the real power lies in saying "No."
What age of consent would not be arbitrary? Would you have no age of consent? Would you have no age of consent applying to partners of roughly the same age? What about one that applies sexual partners of greatly disparate ages, such as a man of 40 and a girl of 12? If you would have an age of consent law, where would you draw a line that is not arbitrary?
All such ages are arbitrary, yes, and I do not have any good answers, because it's always best viewed in hindsight with the facts of every particular case.
Knapp's article (linked above) goes into much more detail on the age of consent issue, even providing external references.
I guess my main point is that criminal law is not the right way to deal with the issue. I find nothing wrong with the arbitrariness of the age of consent -- I just don't like it being codified into law.
One could oppose criminalization of possession of such pornography while accepting its admission as evidence in a molestation case. That he was stimulated by sexual images of children can be considered part of a defendant's motive. I don't think such evidence is substantively different that, say, including a subscription to "Bentley Lover's Gazette" as evidence that a defendant accused of stealing a Bentley had a motive in his fascination with that car.
I would not a priori rule out such evidence, no.
Neither the porn nor the subscription alone is proof of a crime, but each should be admissiible to suggest motive. All sorts of items that are legal to own are introduced for such purpose.
But the criminal law has turned everything inside out, and has made the images and thoughts into crimes, without doing anything to help real victims. Mere possession gets lifetime monitoring, psychiatric exams, and mandatory registration. In that case, why don't we require all criminals to register their crimes, and put them back in jail if they fail to register? Why just sex offenders? Why not make everyone report to their psychiatric officer every week for examination and drugging?
I've heard the argument that recidivism is higher among sex offenders, and that's why they are forced to register. Then why aren't their sentences longer?
Why this half-attempt to be "more humane" by not locking them up, but depriving them of many rights even prisoners still enjoy?
Lee Killough writes: "I guess my main point is that criminal law is not the right way to deal with the issue. I find nothing wrong with the arbitrariness of the age of consent -- I just don't like it being codified into law."
On this we disagree.
In the case of considerable age disparity between partners, and where one is below the age of consent, I'm willing to accept a prima facie argument that the relationship is predatory. At the very least, the older partner could have simply shown self-restraint. If he doesn't, then he should be prosecuted. If he claims to have been manipulated by the younger, I would reject that claim, just as I would a claim that drugs diminished his judgemental capacity, or that physicians are forced to prescribe antibiotics for the common cold by insistent parents.
The issue is less clear in the case of similarly-aged partners where one is below the age of consent. Yet, I still believe that a person above the age of consent can understand the law, just as he is expected to understand that he must stop at red lights. And I think he can exercise self-restraint. I believe it is still true in some parts of the country that parental permission can vacate a consent law to some extent, which seems sensible to me.
Courts can and do recognize the importance of age disparity in sex cases. I'm sure there is inconsistency in how the laws are applied, but that is probably not soluble.
Of course, I oppose the involvement of psychiatrists in this and all legal proceedings. Registration isn't required because of something as logical as reference to recidivism rates. It's required because people are intensely afraid of sex crimes, especially since most of them are directed by men against women and childen, who are less capable of self-defense or downright helpless.
Possession of child pornography is evidence that the owner is indifferent to the plight of real victims, and it is considered contributory to their victimization. Unlike with drugs (with unusual exception), there is a real victim in the creation of child porn.
Except for their sometimes inappropriate application, I see no reason to oppose registration laws for sex offenders.
Lee Killough writes:
"That's not a First Amendment issue. That's trespassing."
That's my point too. Maybe we actually agree on this.
Till now I have said nothing about the child pornography issue, so let me turn to that briefly. If someone is coerced to appear in a pornographic film or in pictures (and we presume that children don't consent to such activity), I have a problem with the claim that possession of that material is not a legal issue. I can see a case for confiscation (even freelance confiscation by, say, the family or its agents). Maybe possession should not be a crime. But that does not mean that possession should be allowed to continue. Of course, there are practical problems in finding out who is in possession: in the computer age, copying and wide distribution are cheap. The traditional protections of law can't be abandoned in the name of finding child pornography. Nevertheless, the principle is clear. I see no right of possession of films and pictures in which someone was forced to appear.
It seems that Sheldon has some of the same conflicted feelings about dealing legally with child porn that I've had. Mira does a good job of explaining why its possession should be prosecutable. On roughly the same grounds that knowingly receiving stolen property can be a criminal, so should possession of child porn.
Many libertarians, myself included, are fond of noting that our political principles are not circumscribed by the Constitution. Child porn laws may be unconstitutional, but we ever-so-rarely may concede that the state should have a power that exceeds the Constitution, rather than our typical view that government should have far fewer powers than the Constitution permits.
On the other hand, child porn laws may not be unconstitutional (if it really matters), just as the prosecution of someone who publishes stolen private letters is not unconstitutional. Private property rights prevail in both cases.
In any case, I endorse laws banning porn featuring real rather than simulated children.
It seems that Sheldon has some of the same conflicted feelings about dealing legally with child porn that I've had. Mira does a good job of explaining why its possession should be prosecutable. On roughly the same grounds that knowingly receiving stolen property can be a criminal, so should possession of child porn.
I would summarize my position as being analogous to trump suits:
1. Private Property
2. Private Contracts
3. Constitutional Law
4. Criminal Law
Private Property trumps all.
Private Contracts require unanimous consent of property owners, and can be annulled.
Constitutional law restricts what government can do, is trumped by private contracts not involving government, and trumps criminal law.
Criminal law is low on my list.
To me, child porn represents a violation of an implicit contract with the child (or other person unable to consent).
I would not put it in the same category as stealing physical property. It would be more like intellectual property. Considering the internet and all, there is no scarcity, so by "stealing" an image, one is not depriving someone else of their copy. I would not put it in the same class as physical theft. I would put possession of stolen images in the category of contract violations, rather than outright property theft. Same for intellectual property.
The violation of the implicit contract is what needs to be remedied, and I argue that criminal law, certainly criminal law as it now relates to sex crimes, does not adequately address the issues. It diverts us away from addressing this real issue of violating the person's trust, and focuses more on the violation of the criminal statutes, statutes which, I would argue from my list above, are trumped by Constitutional, contractual, and property rights concerns.
And don't get me wrong -- I certainly support prosecution of those involved in physical coercion to obtain photos. That is a violation of the person's property, and thus, according to my list above, is even worse than the violation of contract that the sharing of their picture represents.
Many libertarians, myself included, are fond of noting that our political principles are not circumscribed by the Constitution. Child porn laws may be unconstitutional, but we ever-so-rarely may concede that the state should have a power that exceeds the Constitution, rather than our typical view that government should have far fewer powers than the Constitution permits.
On the other hand, child porn laws may not be unconstitutional (if it really matters), just as the prosecution of someone who publishes stolen private letters is not unconstitutional. Private property rights prevail in both cases.
I don't think it's a Hobbesian (Hobson's) choice.
In this case, the rights of the person being violated trump constitutional issues, but I would argue that the criminal statutes are trumped as well, not only by the rights of the person being violated, but by Constitution as well.
In any case, I endorse laws banning porn featuring real rather than simulated children.
I would not support criminal prosecution of mere possession of such images, only prosecution of the one who originally took them, after things such as motive and intent are established (and I would not rule out pictures being used as evidence).
For mere possession of real images, I would argue that the possessor should either destroy their copies out of the respect for the individual, or report where they got them, but never be under any threat of punishment or interrogation (much less psychiatric exam) for mere possession.
Failing to come forward should also not be a crime. I consider crimes of omission to be much less serious than crimes of commission, on the libertarian non-initiation of force principle. Why should I be forced to report someone else's crime?
For virtual porn images, I would argue there is no contract, and therefore no remedy required, and that no criminal law should apply either. Constitutional principles can support the case for no criminal law, but Constitutional principles aren't the only ones to back it up. There's also the property rights of the virtual porn owner.
There are always going to be cases such as a family which is destroyed because they carelessly took photos of their daughter in the bathtub and sent it to the developer without thinking. That is why it is important to not let criminal statutes rule everything. (I look forward to reading Gene Healy's new book, Go Directly to Jail.)
If an undressed child's picture is taken, when does it represent a violation of them? If the picture is taken by the parents to be stored in the family album, and not shared outside the family for others to see, then I think a case can be made that there is no violation of an implicit contract, and no remedy required, as opposed to if they sold the images or shared them on the internet for others' gratification, which would be a violation of the implicit contract.
Criminal law as it is currently structured, with such things as mandatory minimums and zero tolerence polices, cannot adjudicate these cases fairly.
And I would not support mandatory registration or monitoring of convicts after their sentences have been served. If there is evidence that letting them out leads to repeat offenses without extreme monitoring, then the sentences need to be increased. But once they've served their time, they should be free.
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