By John Weston Parry, J.D.
During the past few weeks the national news media has delighted in its coverage of three stories involving prosecutions of people who have engaged in scandalous activities that violate deeply rooted American sexual mores and prohibitions. None of the accused engaged in violent behaviors or employed surreptitious drugging. The younger “victims” either chose to be involved in the scandalous sexual activities, or were victimized by someone other than the accused. For the most part, the victim(s) were older adolescent girls who, at least initially, appeared to be voluntarily engaging in the scandalous activities for fun or profit.
These three high profile, titillating stories of forbidden sex focused on: (1) students at a high school in Colorado who received and distributed nude pictures of themselves and other students; (2) a male student at a prestigious New Hampshire boarding school, who competed in a school graduation ritual of “hooking up” with as many younger female students as possible; and (3) the former spokesman of a national fast-food chain, who paid to have sex with two older adolescent females and viewed unauthorized nude pictures of juvenile girls taken by someone he knew well and worked with.
Various legal double-standards and poorly drafted laws transformed these antisocial sexual practices into potentially life-shattering criminal felonies. In the process, the perpetrators became candidates to be deemed sexual predators who could be permanently incarcerated, monitored, and otherwise restricted by governments for their sexual transgressions, at a large cost to the public. As sexual predators these offenders would be subject to indeterminate incarceration and/or custodial supervision, conceivably for the rest of their lives, because of what The New York Times has described as baseless “hunches” by so-called experts that these individuals might reoffend sexually in the future.
A very slippery slope exists, which can turn almost any sexual offense into a life sentence in government custody or control accompanied by extreme deprivations of the offender’s constitutional and other legal rights. This can happen if mental health experts opine that these offenders' sexual proclivities are dangerous mental disorders. It was not so long ago that the psychiatric and psychological professions embraced the notion that homosexuality was a type of sexual mental disorder.
Furthermore, as the Times noted, any offender, who is convicted of a sexual crime, is “most likely to be listed on a sex offender registry for life, a sanction that requires [them] to be in regular contact with the authorities, to allow searches of [their] home…and to live far from schools, parks and other public places.” To make matters worse, the presiding judge in these cases retains the discretion to impose additional restrictions on sex offenders as part of any probation or conditional release, which presiding judges often do to protect their own reputations and judicial careers.
In a recent Indiana prosecution a community college student, who hooked up with an underage girl using the Internet, was deemed a sexual offender. The girl had said that she was 17, which meant it appeared to the defendant as if she could provide legal sexual consent, but since she was “actually 14,” she could not. The offending college student, after pleading guilty to “fourth-degree criminal sexual conduct..., was sentenced to 90 days in jail and probation.” The judge, as part of the probation conditions, prohibited the defendant from using “the Internet, though he needs it to study computer science.” In addition, upon his release from jail, the student had to register as a sexual offender for the rest of his life. He is now one of “nearly 800,000 people on [such] registries in the United States… “ for crimes that run the “gamut” from physically violent rapes to “urinating publicly…,” or sending or receiving illegal pornography over the Internet.
When it comes to sex and our children, irrational beliefs and overreactions abound, which tend to override and distort sound public policies. Americans can be prosecuted for viewing or sending what is broadly and vaguely considered to be child pornography. On the other hand, a former New York police officer could not be convicted for using the Internet to send what was described in The New York Times as “messages about abducting, torturing, killing, and eating women” he knew. A federal appeals court ruled that “`fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime.'” That defendant’s fetish was disgusting and undoubtedly potentially harmful to society, but it was constitutionally protected as a type of thought or expression. Somehow the same legal principle does not seem to apply when the fetish involves child pornography or certain other sexual images. In the United States depraved violence is accorded far more legal protections than antisocial sexual cravings.
Beyond the antiquated sexual mores and/or psychiatric or psychological pandering involved in these three cases, there also is a battle of the sexes being played out, which is serving all sides—of which there are more than two—poorly. Many males, who are guilty of violent and other highly abusive sexual assaults against females are not being prosecuted, or are being prosecuted inadequately or insincerely. At the same time, other males are facing overly harsh prosecutions for violating various sexual mores because they are deemed to be getting what most men apparently deserve. This prosecutorial imbalance is not justice. It reflects a legal system that much of the time has lacked the fortitude and conscience to correct—much less prevent—these misguided outcomes from occurring.
In addition, there is an obvious double standard when it comes to sexual activities. Boys will be boys, but girls who enjoy sex are somehow deviant, or it is feared they will be perceived as deviant. Thus, the underlying attitude is that good girls need to be protected from sex and the boys who want to have sex with them. No wonder many girls who engage in sexual activities are strongly motivated to hide or lie about that fact, especially to their parents and other adults. No one wants to have a scarlet letter virtually tattooed on their forehead.
Sexting By Juveniles
Children of all ages express themselves sexually in ways that tend to disturb their parents and other adults. This is part of growing up and testing boundaries. In the not so distant past masturbation was viewed as sexually aberrant and immoral, as was any type of sexual activity that did not involve a married man and woman. For many Americans and in various communities these antiquated sexual prohibitions persist. Adult sexual boundaries often do not make much sense, particularly when the rules seem to arbitrarily limit the sexual expression of sexually active adolescents.
Compared to what children grow up seeing on television, the movies, and their electronic devices and the standards of decency in many other industrialized nations, Americans continue to have a major “hang up” with respect to naked bodies. Apparently enough millennial men feel so uncomfortable in being naked around other naked men that one upscale chain of gyms has taken steps to ensure that inside their gym locker rooms each man enjoys enhanced privacy. These sexual hang ups manifest themselves in many counterproductive, legal prohibitions against voluntary nudity, especially when sexually active adolescents are involved.
Thus, whenever it is publicly revealed that adolescents are testing sexual boundaries and acting immaturely by sending or receiving nude pictures of themselves or other students, it becomes a national media firestorm that has introduced the term “sexting” to the American vocabulary. The latest example of this overreaction occurred in a Colorado high school where, according to the Denver Post, hundreds of students exchanged pictures of themselves in which they were partially or entirely naked. In other words, this was a popular phenomenon at that school, and undoubtedly many other places as well.
Sexting should be viewed as a parenting and educational issue in order to inform kids about the potential personal dangers of allowing their nude pictures to be posted in the public domain. It is a familiar example of adolescents exercising poor judgment and/or testing boundaries. Instead, as has happened in similar situations elsewhere, the discussion in Colorado focused on counterproductive expressions of moral outrage and whether or not some or all of these kids should be prosecuted for misdemeanors, or worse felonies that would make them lifelong sexual offenders.
Under Colorado law and in most other jurisdictions, child pornography is broadly and indiscriminately defined as taking, sharing, or receiving a naked photograph of a person under 18, whether or not that prohibited act is voluntary or consensual. This is a bad law in many respects, but particularly as applied to juvenile sexting. Yet, one Colorado state representative already was drafting additional legislation that would make such activities a misdemeanor, but allow prosecutors in their discretion to charge kids with sexual felonies in more “egregious” situations, whatever that means.
In all likelihood, very few if any of those “juvenile offenders” in Colorado will be charged with sexual felonies, but the fact that prosecutors and judges can elect to do so in their discretion is disturbing. The problem is that the exercise of discretion to make examples of defendants in order to scare others straight and quell moral outrage is a familiar legal response, especially for those law enforcement officials who fear being voted out of office. What makes the threat even more preposterous and disturbing in this case is that in order to carry out such a prosecution, prosecutors and judges would have to pretend that the juveniles involved were acting like adults, rather than as children, when they violated the cited laws. Thus, the victims would be deemed minors for the purpose of establishing the violation of the applicable pornography laws, but offenders of the same age would be treated as adults for the purpose of enforcing those laws with criminal prosecutions.
A Scandalous Tradition of Students Hooking Up, As School Administrators Look Away
At St. Paul’s, the prestigious New England, Episcopal preparatory school in New Hampshire, which boasts many illustrious graduates, there has been a tradition—beginning sometime after the school became co-ed—in which senior males try to “hook up” with as many of the freshman and sophomore girls as possible. The object of this unsettling and fundamentally vile game is to accumulate the most sexual encounters, especially those involving sexual intercourse. The younger girls apparently participated based on misguided calculations that doing so might enhance their popularity and sexual self-esteem, and because they wanted to engage in sexual activities.
When information about this tradition became public, as well as the use of computers and smart phones to greatly facilitate such hook-ups, the media made it seem as if this was a highly aberrant circumstance that secretly broke out at this highly-regarded preparatory school from which virtually all the graduates go to good colleges. In response, the school administrators acted shocked by the revelations, while the parents and local law enforcement officials expressed their moral outrage after finding out what had been going on for so long. The abiding solution to their collective potential embarrassment and contributory culpability was to find a patsy to blame.
Older high school boys “hooking up” with freshman and sophomore girls has been an American tradition that extends back to at least the 1950’s. While arguably the number of conquests and percentage of participants appears to have increased over the years, the basic dynamics of the game have remained the same, although the means for identifying the potential participants and arranging the hook-ups have evolved along with technology. The Kinsey studies and the work of Masters and Johnson and others have shed light on the sexual habits of teenagers, which has tended to upset many generations of parents.
For all the good publicity that professed abstinence by teenagers has generated for those who claim to be adhering to this self-serving pretense of moral superiority, the reality is decidedly different for a vast majority of adolescents. Adults may like to pretend that rampant sexual activities by teenagers are unusual or deviant, but that is a myth, which many educated people now understand, especially those who teach and supervise kids. In many industrialized countries, that sexual reality has been accepted for a long time. In the United States it continues to be ignored, condemned, and criminalized in various proportions, depending on the communities involved.
There is no doubt that what happened and was happening at St Paul’s should have been stopped or ameliorated by teachers, administrators, and even student leaders, who must have known or had strong suspicions about what was going on. Much like performance enhancing drugs in baseball, though, there was an underlying self-serving dynamic, especially the fear of a public scandal, which steered all those who could have made a difference in the wrong direction. On the other hand, these types of hook-ups involving older boys and younger girls, which were at the heart of St. Paul’s graduation-year ritual, have been played out at most high schools throughout the United States for many years. Almost any high school locker room for boys or girls is teeming with this type of information for those who are listening. That information also abounds in the social media that teenagers use and digest.
Owen Labrie, who was an18-year-old senior when he had sex with a 15-year-old freshman, was selected as the person who would bear all the responsibility for what happened and had been ignored at St. Paul’s for years. This selection process was somewhat akin to Shirley Jackson’s classic short story: The Lottery. His participation in the tradition, which over the years has involved many students of both sexes, was technically a crime. Legally, he had become an adult, even though he was still in high school and still was not developmentally mature. The younger co-ed he had sex with was under the age of consent, although as a highly educated teenager she most probably was able to give and withhold actual consent, since no drugs or alcohol were involved. Throughout the United States someone of her age and educational background could easily be prosecuted as being a culpable adult, if that minor committed a serious crime.
The initial charges against Labrie were trumped up to place him in the most disadvantageous legal position possible: three counts each (penetration using his penis, mouth, and finger) of aggravated felonious sexual assault and misdemeanor sexual assault, and a single charge involving the use of a computer service to entice his schoolmate to participate in this liaison. The idiom that it takes two to tango seems applicable here. Not surprisingly, given the importance of St. Paul’s reputation to the local community and school itself, no other students were arrested, much less charged with any crime, and no school teachers or administrators were fired or publicly admonished. In the media, including The New York Times, Labrie was being accused of rape, which was misleadingly equated with many of the far more pernicious sexual assaults that were reportedly occurring at colleges across the country.
It was at this point that Labrie appears to have gotten some bad legal advice, perhaps because he had been planning to go to Harvard University where he had been accepted, and wanted nothing on his record to spoil that opportunity. Rather than admit that he had sex with the proclaimed “victim,” but still challenging the charges, or even accepting some type of no imprisonment plea deal for technically violating the law, the legal strategy that emerged was to deny that any sexual intercourse had taken place and hope that plausible deniability would equate to reasonable doubt.
Objectively, the trial digressed into a he said, she said exchange of plausible, but unpersuasive, lawyer-directed courtroom narratives. Yet, in the media and courtroom, it was the heroic young girl versus the older sexual predator. There was no difference in their accounts that both of them had come together voluntarily for the purpose of hooking up sexually. The disparity in accounts involved what types of sexual activities were voluntary, which occurred after the “victim” allegedly said no as the activities escalated, and which activities that were alleged, never actually occurred.
More fundamentally, from a legal perspective, the question was whether the girl’s disputed account constituted proof beyond a reasonable doubt on any of the charges involving sexual assault. Under the existing law, however, even if the girl voluntarily participated, Labrie could be convicted for anything he did that penetrated her vagina because in New Hampshire and most other jurisdictions, a fifteen-year-old girl is legally incapable of giving consent to voluntarily participate in sexual intercourse and other related activities with any adult, who is not her husband.
According to the girl, sometime after they began hooking up, she said no, which she repeated. She then alleged that Labrie had sexually assaulted her by penetrating her vagina with his finger, mouth, and penis. He denied that he had penetrated her in any way. He claimed, unconvincingly, that he had second thoughts due to “`divine inspiration’” once the kissing began. (As my father, who was compelled to attend daily chapel services as a student at St.Paul’s many years ago could have attested if he were still alive, the idea of a God-inspired intervention of conscience may not have been as far-fetched as it seemed to be on its face.)
The jury found Labrie not guilty of the felony sexual assault charges, but convicted him of the sexual misdemeanors and more importantly the far-fetched sexual felony of using a computer to entice the underage victim. The judge went out of her way to call Labrie a “’liar.’” She sentenced the straight-A student to a year in jail followed by an extended probation. In addition, Labrie would be registered as a sex offender for the rest of his life and endure all the limitations on his civil liberties that being on such a registry mandates. Not surprisingly, Harvard rescinded his acceptance.
The girl’s parents implied that the sentence was not enough. In a prepared statement, which was summarized in the Boston Globe, they said that the outcome represented only “`a measure of justice’ for victims of sexual violence…`[O]ur daughter can never get back what she has lost.’” Their public relations document also blamed St. Paul’s, which had ‘`allowed and fostered a toxic culture that left our daughter and other students to risk sexual violence…,’” suggesting a civil lawsuit or secret settlement was in the works. Hoping perhaps to limit St. Paul’s potential liability, the rector of the Episcopal school “commended the former student’s `remarkable moral courage and strength.” He added that “[h]er resolve and unwavering commitment to the truth have been inspiring to us [all]….’”
A Former National Advertising Spokesman Becomes A Sexual Predator
The prosecution and convictions of Jared Fogel—the former national spokesman who promoted the dangers of obesity and health-related benefits of consuming lower calorie Subway sandwiches—raises a number of uncomfortable issues about potential sexual exploitation of older adolescent girls and how it should be dealt with. The case also raises unsettling questions about diagnosed mental disorders and criminal culpability. Ultimately, though, Fogel’s case illustrates the difficulties the legal system continues to have in dealing with these types of sexual prosecutions, especially when they involve famous—and now infamous—individuals, whose presence as a defendant in a case ensures that the surrounding facts will be distorted or embellished in the media’s rush to judgment.
Beyond the many unsubstantiated rumors about what he or his former “non-profit” business partner may have done, which helped excite a media frenzy, as well as unsubstantiated conjectures that sexual trafficking was involved, the case against Fogel was quite specific and limited. According to the NewYork Times, Fogel was charged and convicted in an Indiana federal court for two types of sexual offenses: “receiving and distributing sexually explicit images of minors and traveling across state lines to pay for sex with minors.” He was a sex consumer— rather than a violent rapist or sex trafficker, producer, or seller—who had a fixation on older adolescent girls.
He was not involved in producing or selling the illegal sexual images that he received and passed on to others, although his business associate apparently was. Neither of the two girls Fogel paid to have sex with was under 16, meaning they were older adolescents, who in most states were mature enough to be married or prosecuted for adult crimes, or to become emancipated minors. There also were no criminal allegations that he used physical force or drugs to compel his underage, paid companions to engage in sexual acts with him. In addition, there was expert testimony that Fogel had a sexual compulsion, which manifested itself in an inability to control his urge to have sex with or view naked images of older adolescent females. Furthermore, Fogel agreed to pay substantial financial restitution, $100,000 each, not only to the two girls he had sex with, but 12 girls whose naked photos he had viewed. Together, these mitigating factors indicated that probation or a lighter sentence and treatment would be an appropriate disposition.
Weighing against leniency, however, was a popular movement, predominantly promoted by certain women and politicians, to deal with the sexual exploitation of children and other sexual crimes, predominately committed by men, as harshly as possible, regardless of any mitigating circumstances involved. In addition, there was another popular movement, which has become the dominant view of an overwhelming number of federal judges and prosecutors, that defendants with mental disorders should be incarcerated and otherwise kept in government custody longer than other defendants, rather than be granted mitigation, because they have been deemed—without any persuasive proof—to be especially dangerous.
The popular women’s rights view that Fogel should have been subject to even more serious charges was expressed well in a Washington Post-sponsored blog that is written by Abby Phillips. She questioned why the federal legal system and most major newspapers, including the Post, did not consider what Fogel had done—by having sex with underage girls, who legally cannot provide consent—rape. In a number of states, it is referred to as statutory rape, thus forever labeling those who are convicted of that crime as rapists.
Statutory rape goes back to English common law and was imported to the American colonies. It is based on an irrebutable presumption that a minor of any age lacks the capacity to provide adequate consent to have sex, unless the minor is married, which somehow makes that juvenile more capable. With statutory rape, even if the unmarried minor is mentally capable of giving actual consent, that fact is deemed to be legally irrelevant and immaterial.
For many years, however, federal law and the laws of most states have used other terminology in order to better distinguish nonconsensual sexual intercourse from rapes committed using physical force against the victim, or by drugging them. That distinction is particularly germane when the alleged victim is an older adolescent who has willingly, although perhaps unwittingly, engaged in sex for pleasure or monetary gain. The law is improved when it recognizes and takes into consideration meaningful distinctions, such as the inherent difference between physical force and inadequate consent. The idea of lumping disparate types of sexual assaults into one amorphous category called rape does not serve justice well. It makes lesser sexual crimes appear to be as reprehensible as far worse sexual crimes, which of course is the point.
In order to potentially reduce the ultimate sentence for Fogel, his legal team embarked on a misguided strategy to justify or mitigate his criminal actions as being a product of a mental disease or defect. In today’s judicial climate, especially in a federal court in the Midwest, this was a long shot with unintended, potentially tragic consequences for Fogel that his lawyers should have been more aware of. The knee-jerk legal reaction probably was that in a few high-profile cases these types of defenses have been successful or quasi-successful in the past.
Since Fogel was being crucified in the media and he was going to plead guilty to the charges anyway, it may have seemed as if there could be no harm in trying to get his ultimate sentence reduced and public sympathy on his side by introducing evidence from an expert in treating sexual addictions, much like the legal team representing Tiger Woods had done in another context. According to the Associated Press, the defense expert testified Fogel had a number of mental disorders, including “hypersexuality, mild pedophilia and dependency… `that did not involve acting out… with a child.” In other words, he liked to look at pictures, but generally he did not act on those proclivities, except when he paid the two older adolescent girls for sex.
There were two deficiencies in this legal strategy. First, unless the defendant is a woman with post-partum depression, a victim of spouse abuse, or has some other socially compelling justification, it is extremely unlikely that this type of mitigation strategy will work, especially when the defendant is a man and the alleged disorder is not well-accepted amongst clinical psychologists and psychiatrists, or the public. Second, in introducing the notion of Fogel having a mental disorder, his defense placed him in extended jeopardy, perhaps for the rest of his life.
As it turned out, Fogel’s legal strategy failed on all counts. Even though the plea deal that was struck had called for a sentence between 5 and 12 years in prison, promises of treatment and other significant mitigating evidence had been submitted, and restitution was being paid, the judge used her discretion to impose a sentence of over 15 years, which exceeded even the prosecutors recommendation of 12 ½ years. The familiar pattern of judges increasing the punishment for a defendant, who is deemed to have a diagnosed mental disorder, was further enhanced because his sexual compulsion involved older adolescent girls.
Once he has served his prison time, Fogel will be subject to further restrictions on his freedom and other liberties based on his being a registered sex offender. Even worse, he will be a candidate to be quasi-civilly committed, indeterminately, as a sexual predator based on his sexual and other related diagnosed mental disorders, which his legal team commissioned for his defense. The judge went out of her way to point out that the evidence demonstrated that Fogel, despite enjoying the opportunity of a life-time to reap the benefits of Subway’s largesse, had been living a secret life, a secret which the defense had conveniently brought to the court’s attention. As a result, Fogel may well spend the rest of his days in expensive, government custody as a resident of some kind of detention facility and/or under supervision in the community with draconian restrictions on his civil liberties. Such a result would not represent a wise use of our tax dollars.