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Kids, Sex and the State

Partial & slightly edited transcript of a talk [1][2]
by Judith Levine from The War on Sex.

The age group with by far the largest number of convictions for sex offenses are people between 14 and 20 years old.

In 2002 I wrote this book Harmful to Minors and it argued that the things that we do in America to try to protect children from sex are way more harmful to them than sex itself—which is actually a great part of growing up—and that the things that we do such as criminalize kids sexuality, or put them into jail, or put them in psychological counseling, or giving them abstinence-only education—these things really have terribly grave consequences for kids.

I wish I could say that that book made a difference in a positive direction but it didn't. Things have gotten way worse since 2002. Since that time almost every single state in the union has vigorously strengthened their sex crime statues. These laws are intended to protect children from sexual exploitation but they disproportionately affect teenagers.

The age group with by far the largest number of convictions for sex offenses are people between 14 and 20 years old. These are, almost all of them, consensual acts of sex between kids with somebody who is about 2 or 3 years younger than them. There are 19,000 minors on sex offender registries nationally. 19,000! Some of these people are as young as 11 years old.

In every state of the union if you have sex and you are a minor you are likely committing a felony. I will repeat this. If you are 16 in the state of Georgia and have sex with another 16 year old person you are committing a felonious act. You can be put in juvenile detention and after that you can be put into adult prison and after that you will be on a sex offender registry and once you're on a sex offender registry your life is effectively over.

  • You can not get a job.
  • You can not live in most places.
  • You can not go into the military.
  • You can not get into college.
  • You can not get a loan for a college.
  • You can live almost nowhere because there are these residency restrictions.
  • You can't really have a relationship or have a family because you're not allowed to be near children, ever really, even your own children should you have them.

These laws are very easy to get on the books. No amount of facts will stop them. Now these have been on the books for a long time, several decades, so there's a lot of evidence that shows they really don't protect anyone.

The way sex panics work

is that once you have more laws you have more enforcement. When you have more enforcement you have more arrests. What the laws do is they generally broaden the definition of a crime. For instance it used to be child pornography to take a picture of somebody who was under 12. They didn't really find enough child pornography and they had this big machine to go out and arrest people so then they made it 14 and then, still not quite enough, 16, and now 18. So you broaden the definition of the crime, you get more cops, you make more arrests, soon people are feeling like gosh there's a lot of crime. There's a perception of more crime and so they start to clamor for more laws and once they're on the books they're almost impossible to get off the books.

Increasingly what the states are doing is not just punishing people, and especially minors, for sex—they're curing them!

This conflation of punishment and cure also goes back a long time with overlapping religious and psychological cures. So you have this kind of slippage of different definitions of criminal, psychological and moral categories of sexual abuse, as they call it, and once you start to put these two things together there's a really twisted logic that's a tautology that kind of circles around and around on itself. So here's how it goes: According to sex abuse therapists, prosecutors, police and some journalists, even some parents, the behavior that kids are doing is wrong. It's wrong because it's illegal. Why is it illegal? Well it's illegal because it's wrong.

But the really pernicious part of this is once you start to cure kids there's a whole industry of doing sex abuse therapy. The whole idea of offender treatment is already a conflation of these two agendas—the punishment agenda and the treatment agenda. These conflated terms are the lingua franca of the whole abuse industry. For instance there's a group called the National Adolescent Perpetrator Network which had a task force and they put out these standards of what they call sexual molestation. A criminologist named Frank Zimring did a really great book called An American Travesty and he takes all this stuff apart and he said, "According to this task force a majority of American men and boys have committed multiple acts of child molestation by the time they reach their 21st birthday. This aggregation of such behavior into one single category child molestation is an extraordinary abuse for an organization of therapists."

What do they do with kids when they're in this therapy?

The first axiom of it is that the therapist is not really there as a therapist on the side of the patient. The patient is actually seen as a kind of antagonist because he has broken the law, and the therapist's confederate is not the person in the room with them but the law, the prosecutor, so anything that the kid says to the therapist can and is used against him.

Treatment involved putting a rubber-band appearing contraption hooked up through a computer around your penis and you sat in a dark room with your pants to your ankles and listened to various audio recordings

What they do in these therapies is they make the kids rehearse over and over and confess the molestation that they've done, the fantasies that they have, the times they've masturbated, the times—should they be so lucky to actually have sex—the times they've had sex. They have to tell new people over and over, a new therapist, a new prosecutor, a new board of psychologists, and they're supposed to also reveal it to anyone that they might be thinking of having a relationship with, so that kind of cuts off the possibility of them kind of moving on out of this thing.

What do they learn from it?

As one kid who went through this said,

"I learned that sex is bad."

The assumptions of this system about sex and the protection of innocence and the dangerousness of sex offenders and about the appropriateness of state intervention in the sex lives of minors either through criminalization or through this pathologizing of teen sex, these assumptions are so widespread, so hegemonic, that even those people who critique the system use its own logic to do so.

The argument against putting kids in jail and on sex offender registries is that it's unnecessary because treatment works, that's what they say, treatment works! Teens, it turns out, have the lowest recidivism rate of any class of sex offenders. Well it's obvious to me why they have a low recidivism rate. The reason is they get out of jail and they're no longer minors, so they are statutorily unable to commit the crime for which they were put in jail in the first place.

The criminalization of teen sex

is only the most extreme edge of a spectrum in the ways in which the state tries to protect kids by punishing them. The other things, you could say, really affect a lot more kids much more broadly and maybe even in a longer term way and one of these things is abstinence-only education which the federal government has spent 1.5 billion dollars on since 1982. That's when they passed what was called "the chastity law". It's the only money the federal government has ever in history put into sex education, and guess what, it didn't work either. Kids didn't stop having sex and in fact teen pregnancy is up in 26 states.

Why is all this happening?

Why are we so fucked up about sex? To tell you the truth I don't know because you go anywhere else in the world and people are really flabbergasted by us. I think the anarchist idea that the state needs to justify itself in order to perpetuate itself works really well when you're thinking about moral surveillance. You pass these laws, these bureaucracies get set up, and not just bureaucracies in the government but there are NGOs on the side and then there's professional organizations and there's therapists and all the rest and then there's the prison industrial complex—and then they need to have a reason to exist. So they have to do that both in their actions—they actually have to arrest a lot of people, and they also have to do it ideologically, discursively—that the culture needs to change for people to feel that this stuff really is wrong and it really is harmful. By this time it's really hard to find a parent who says, "Sure of course my kids are going to have sex and I want them to use birth control and don't want them to get any sexually transmitted diseases but this is wonderful I mean this is part of the great pleasure of being a kid and they'll stumble and they'll learn". It's really rare to find that.

The ideological forces that try to repress sex are flexible.

They're able to kind of change the target. In the 80s the big target of protection were women so there was a whole anti-porn movement at that moment. It didn't really take hold. People didn't sign on to it. There were two anti-porn ordinances that tried to pass in the Midwest in the 1980s but both of them were found to be unconstitutional. The advocates of censorship didn't just roll over and die. They changed their strategies and really started to hone in on kids—on protecting kids from sex. There was no adult left, no homosexual, adults were saying, "Look, it's consensual, leave me alone!"

The advocates of censorship,

I give a little catalog of how they change their names, because it's kind of interesting. How they went from protecting what they call "decency" to protecting children. So the Citizens For Decency Through Law became the Children's Legal Foundation and then that changed its name to the National Family Legal Foundation. The American Family Association was previously called the National Federation for Decency and then it got the word "family" in it. The National Coalition Against Pornography spun off into the National Law Center for Children and Families. The Justice Department's National Obscenity Enforcement Unit was rechristened the Child Exploitation and Obscenity Section.

They set up this vast surveillance for child pornography.

As I said before it was hard for them to find enough child pornography so they kept on widening the net. They brought in these vigilante groups like Perverted Justice. Do you remember? Some of you may have watched To Catch a Predator. Still couldn't get enough people so then they also started to say that a morphed image, a cartoon, an image in which there is no actual child being used to create pornography was also criminal. I just recently helped a couple in Kansas City who were arrested for child pornography. When their lawyer finally looked at the images they turned out to be pictures of naked Ken dolls. By this time their children had been taken out of their home and kept away from them for 4 months.

Kids are being arrested for taking naked pictures of themselves

—this is called sexting—and sending them on their cellphones to their friends. So the person can be a perpetrator and a victim of child pornography production at the same time! Then the friends who receive the images are now in possession. This happened in Greensburg Pennsylvania. Similar prosecutions have taken place in Alabama, Connecticut, Florida, New Jersey, New York, Michigan, Ohio, Texas and Utah, at last count. But there was a survey done of kids about their online behavior and 1 out of 5 kids said they had done sexting. So that's 20% of kids are doing some sort of a crime.

Being caught for child pornography is no small thing.

It is a federal crime and the penalties for it are four times higher, in general, than they are for murder. So if a kid gets prosecuted for one of these things they are in deep trouble and, as with all sex crimes, they will be on a sex offender registry afterwards.

The criminalization of teen sex is very good for prisons

and juvenile detention centers many of which are private. From 1985 to 1995 youth detention grew 72% in America. Whenever there's money it's good for government corruption. It's a sort of private/public hybrid. In Pennsylvania two judges were charged with receiving kickbacks of 2.6 million dollars over 4 years for sentencing kids to juvenile detention. These places are really torturous. Kids have died in them.

What can we do about this?

I think people in this room would probably agree that the state should stay out of consensual sex altogether for kids or adults. As for these crimes of passion I've been working on these issues for decades and really things have only gotten worse and I feel despairing about it. I don't know how it's going to change. I think the only way it's going to change is that it's going to get worse before it gets better.

It turns out in Texas there's really a disproportionate amount of conviction, and this is true in California too, of Chicanos and Mexicans for having consensual relationships. Because it's pretty common, especially among working class and poor Mexicans, to have relationships in which the men are quite a bit older than the women. So it's really interesting, when you look at the names of people under surveillance in the state of California, there are a huge number of Hispanic names. These people get pulled into this thing and they're really astonished that the state could do this to their kids. It's completely heartbreaking. They've lost their children, they've lost their family, they've lost every penny they've got, their families are shamed in their neighborhoods, they have to move, and they get radicalized by it. The most radicalizing experience you can possibly have is to be on the other side of that gate. Once you are arrested you are no longer human.

I think that in order for this kind of thing to change,

you know, politics is not really rational—it's an emotional thing. Social movements are mobilized by feeling and once people start to have this tragic experience finally they may say, "ENOUGH!" I can tell you that we're probably getting to that point fast because I'll leave you with this statistic: At present 1 out of every 220 American men is under surveillance of the criminal justice system, in one way or another, for a sex offense.

People who have found themselves victims of a
crazy tragic time in American social and legal history.

"The panic surrounding youthful sexuality can perhaps best be compared to the war on drugs: Both are based on ideology rather than science, and no amount of evidence can change the minds of true believers. Both mask underlying social agendas in which concern for children is used to control the behavior of adults. And both engender problems of credibility as young people reject exhortations to do as I say, not as I did."What Judith Levine is Really Saying

"What used to be called “playing doctor” for young children or thought of as normal sexual experimentation for older teens is now enough to get a kid arrested, taken away in handcuffs, put in juvenile jail, subjected to draconian psychological “treatment,” and put on a sex offender registry, often for the rest of his or her life! This is not just for aggressive or violent behavior, but for innocent, consensual play among giggling kids."Criminalizing Child’s Play

"Since the late 1900s, America has become an increasingly punitive society that sees fit to lock up its people—now almost one percent of us. Sex offenders are the latest category of villains for whom no sentence seems too harsh. The US federal sentencing guidelines make it official that photographing a 17-year-old boy with an erection earns a penalty about twice as severe as attempting to kill him—and about four times as severe as beating him up so badly that he accidentally dies."Throwing Away the Key

"America’s War on Sex is a comprehensive, well-coordinated attack on sexual education, entertainment, expression, health care by a large number of groups: local, state and federal government as well as morality groups, decency groups, right-wing media and right-wing think tanks."Dr. Marty Klein