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Regulating child rape

Imagine a federal agency charged with the task of regulating the level of child rape in America. Like the Federal Reserve calculating interest rates, or the Food and Drug Administration deciding when a new medicine's side effects are too severe to allow the drug to the marketed, this imaginary agency would decide how many child rapes are too much and how many are too little.

It sounds grotesque, but the federal government provides us with just such a regulatory agency. It's called the United States Supreme Court.

On Tuesday, the Supreme Court heard an argument in a case called Comstock v. United States that was concerned with deciding whether a certain federal law would have the effect of making the level of child rape fall below the minimum desirable level.

Of course, that's not how the justices or lawyers who argued the case, or indeed just about any other lawyer, would describe the case. Within the artificial world of the courtroom, Comstock was all about esoteric constitutional questions of federal power. It was about what the Supreme Court's ruling will mean to the legal world itself.

(Here's the legal "question presented" courtesy of the Supreme Court,  and here's a description of what the question means in more or less plain English, courtesy of SCOTUSblog.) 

Mr. Comstock and his co-litigants are a group of convicted sex offenders who have been "civilly committed" – roughly the equivalent of the involuntary commitment of a mental patient – after finishing their prison sentences for federal sex crimes including child pornography.

Child pornography, in case anyone other than judges needs to be reminded, consists of images of child rape, except when it consists of images intended to inspire fantasies of child rape. It appeals to men who like to think about sex with children.  Those men, like other men, feel a strong urge to act on their fantasies.

That's hardly a surprise.  Imagine if an ordinary heterosexual man of impeccably orthodox sexual proclivities is locked up in prison for a long period of time.  Would you expect him to seek out sexual experiences with women once he's freed?

Now substitute "children" for women in that last sentence and you understand the risk that's run every time a child sex abuser is released from prison. Mr. Comstock and his colleagues, about 60 in the eastern district of North Carolina alone, are people whom a judge determined are distinctly more likely to re-offend than that.  That's what earned them the title of  "sexually dangerous."

Assume the judges who determined they were sexually dangerous had predictive powers equal to that of a coin flip, so that only 30 of the 60 are truly dangerous.  That still means releasing those men would condemn at least 30  victims (not all them necessarily children) to, at the very least, inappropriate sexual attentions, or what lawyers call attempted rape.

So by deciding whether Mr. Comstock and everyone in his situation should be released forthwith, the Supreme Court is effectively deciding whether those 30 people should be victimized.

Of course, it's unlikely that any of the truly dangerous men will be caught the first time they re-offend, so the true number of future victims would almost certainly be greater than 30.

Furthermore, whatever decision the Supreme Court reaches in Comstock will apply to all men found to be "sexually dangerous" everywhere in the country.  Depending on how the court rules, its rulings could  result in the immediate freeing of many more than 30, or even 60, truly sexually dangerous men  – with a corresponding increase in the number of future victims.

Although we're not used to thinking in these terms, that's a question judges, juries and prison authorities deal with all the time. That's what the criminal justice system does: it determines how many of us will become victims in coming years.

It's a statistical given that a certain number of ex-offenders will re-offend.  The extraordinarily brutal environment of our prisons tends to raise rather than lower the number, because it burdens ex-offenders with the additional task of overcoming their own brutalization.

Yet offenders must be released.  The alternative - our current regime of mass incarceration - merely postpones the date while swelling the number to be released, multiplying the problem.

By locking up dangerous people, and then by releasing them, our criminal justice system regulates the level of violence in society. That's what makes it a regulatory agency, like the FDA or Federal Reserve.

That's not an analogy. The legal system isn't "like" a regulatory agency. It is one. It's just one that doesn't admit to itself what it's doing.

When the courts' regulatory role becomes difficult to miss, as it does with Comstock, the legal system works hard to miss it, insisting that "the real issue" is something other than the obvious and predictable result of the ruling.

It's true that the "real issue" argued inside the Supreme Court's courtroom last Tuesday was something quite different from the regulation of child rape. But it's equally true that the greatest significance of the ruling outside the courtroom will be the adjustment to that rate.  The justices' hands are on the valve, but they insist on looking the other way.

What if we had a legal system that devoted itself to arguing openly about what it's doing to society, rather than obsessing about what it's doing to itself?

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In Our Name by Joel Jacobsen (keep reading)

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