When you read or hear someone say the two chilling words “sex offender”, the dark images that immediately come to mind for most people are those of deeply disturbed and dangerous rapists and pedophiles who, driven by sick and poorly controlled urges, seek to do unspeakable things to innocent women and little children.
Make no mistake, there are such people in the world, and the crimes committed by these people can be horrible, evil, depraved acts that can devastate their victims and their victims’ loved ones. One need only think of the excellent movie “A Time To Kill” (based on the John Grisham novel), starring Matthew McConaughey and Samuel L. Jackson, in order to understand the kind of crimes that come to mind when one thinks of the word “sex offender”.
However, no matter how many times you turn on your tv and observe someone like Nancy Grace getting on her ratings-driven soapbox, peddling out for eager public consumption the very worst of the worst crimes perpetrated across the country, people rarely seem to recognize that the crime stories used by Ms. Grace and those like her have been carefully selected from the thousands and thousands of cases out there, specifically for their shock value. If it elicits a deep emotional reaction (rage, disgust, fear, distrust of government), it gets on the show, and it gets written about in popular media, and it gets circulated throughout social media. Naturally, some people start thinking that there’s a pedophile on every street corner, just looking to snatch your kid away and drive off with him/her in the back of his beat up van.
After years and years of seeing and hearing about the shocking and depraved acts showcased by Nancy Grace and her ilk, popular opinion begins to shift, and the shift then encourages lawmakers to pass strict laws to show the public how harshly these crimes will be dealt with in their states. However, despite the noble and righteous intent behind such laws, the devil can usually be found lurking in the details.
For example, in Texas, if an immature, socially awkward 20 or 21 year old male, who has never really had much in common with girls his own age, hangs around with people younger and more on his own level intellectually and socially, a recipe for disaster is in the works, and nobody sees it coming. Our hypothetical guy meets a girl at a party, and they like each other. He’s not used to actually having a female give him the time of day, let alone be attracted to him. Maybe he knows her age, maybe he doesn’t. All he sees is a physically mature, sexually developed female liking him! Maybe there is alcohol involved, maybe not. Maybe she has years of sexual experience already, maybe not. Nonetheless, at some point, they end up having sex, consensual sex.
Under Texas law, there is absolutely no distinction between the title of the crime that the above scenario involves and the crime committed by a pedophile who rapes a 5 year old.
No kidding! Both crimes are called “Aggravated Sexual Assault of A Child”
Here’s the “logic” behind why such an absurd scenario exists…
STEP ONE: Under Texas law, if you are under 17, you are defined as a “child”.
STEP TWO: Under Texas law, a “child” cannot give consent to sex as we commonly understand the term, no matter what the facts may be, nor can such a child give consent to any other kind of sexual contact. No exceptions.
STEP THREE: Under Texas law, penetration without “consent” equals “aggravated”.
So, by playing loosey goosey with the word “child” and “consent”, the legislature has created a scenario where two people are similarly stigmatized, for the rest of their lives.
The pedophile who rapes a child is properly labeled as a registered sex offender, for life. Such a pedophile is likely going to be in for a very long prison sentence and will experience difficulty making parole. Meanwhile our awkward and immature 20 year old may be fortunate enough to get probation and avoid prison, depending on how hard the girl’s parents push the prosecutor, the quality of legal representation, the county in which this “horrible” thing occurred, among other factors. However, this young man will now be branded as a registered sex offender for the rest of his life. No exceptions.
I have seen the popular websites that display a map with red dots or other indicators of where all the registered sex offenders reside. Such sites are very popular among parents of young children. Unfortunately, one cannot tell from looking at these maps which of the red dots is a person who molested a young child, and which of these red dots involved conduct that is far less serious. Moreover, even if the website has actually taken the time to list the title of the offense for which the person was convicted, it is virtually impossible to discern much else, because, as I have described above, the titles of the offenses can be inherently misleading.
As a parole lawyer in Texas, I have represented many men who went off to prison and then faced the struggle to make parole, all because of a past sexual attraction that resulted in the sort of thing that sexual attraction sometimes causes, with a person who may or may not have sought out the sexual encounter in the first place. Sadly, such a man will carry a stigmatizing label for life, and every aspect of their future is affected, including housing, education, employment, relationship opportunities, etc.
I know that it’s asking too much of most people to keep an open mind when it comes to “sex offenders”, which is why the law MUST change in this important regard.
Thousands of people in Texas are given the stigmatizing label “sex offender” for life who are not pedophiles or rapists.
Yet, the media makes a lot of money off the fear of the public, and nothing stirs up a community’s fears quite like stories about rape and child molestation. Unfortunately, we have a justice system in which broad definitions of sexual assaults allow for these crimes to come in so many different varieties. Often, the end result, the label of “sex offender” becomes an enormous blanket of stigmatization that stays with every single person without any regard whatsover to reality.
Prosecutors know that a person who sits in a courtroom, in front of a jury, accused of a sex crime, any sex crime, will almost certainly be presumed guilty, not innocent. In an important and noble effort to punish sexual deviants who prey upon children, Texas now has a system in place that inflicts brutal punishment on thousands of people each year who are not pedophiles and may not even have any abnormal or dangerous thoughts or feelings. Those brutal punishments, including all of the long term consequences of these convictions, are often so punitive that the person convicted suffers sentences that last a lifetime and exact a huge price on society in unintended and far-reaching ways.
Let’s start out with the first problem; what is a “child” I ask this question because Texas law does not characterize “child” in a manner consistent with the way almost everyone understands the term “child molestation”. A person is legally a child until his or her 17th birthday. Unfortunately, in many home and social environments, teens over the age of 12 or 13 are already quite sexually active. Moreover, many sexually active teens are not well supervised by parents; either because of a lack of parenting skill or dedication, the inability to be around the teens more often due to work responsibilities, or simply not caring enough to be a parent. In far too many instances, these unsupervised teens are engaging in sexual activities, and when the person with whom they have sex is over 17, it becomes a recipe for disaster.