The New Pariahs

Presented at the Yale “Queering Anthropology” Conference, 13 February 2015 “The New Pariahs” Roger Lancaster I begin with mass incarceration: the unprecedented expansion of the US prison system in the wake of the 1960s. The basic contours of the resulting picture are well known: • Between 1970 and 2008, the US quintupled its prison population. • Even after leveling off and modest declines in recent years, the US still incarcerates at a rate 5 to 10 times that of other developed democracies. • It still ranks # 1, both in the rate of incarceration and in the absolute number of people in prison. • If recent incarceration rates remain unchanged, roughly 1 in every 15 Americans will serve time in a prison during his or her lifetime. • For men the rate is more than 1 in 9. • For African American men the expected lifetime rate is roughly 1 in 3. These figures have no precedent in the US. Not under Puritanism. Not even under Jim Crow. -My recent book, Sex Panic and the Punitive State, and other ongoing work, explores a different side of “the punitive turn” in American culture. It shows how a coalition of victims’ rights movements, anti-crime conservatives, and some feminists pushed for sex offender laws that are both draconian and widely applied. Here is a brief sketch of what the new social movements have wrought. The Jacob Wetterling Act, passed in 1994, requires convicted sex offenders to register with authorities. A 1996 revision to the Act, Megan’s Law, requires local law enforcement to notify neighbors about a sex offender’s presence in their community. Although registration and notification requirements vary, all states now post searchable online lists of at least some categories of registered sex offenders. Now the figure of the “sexual monster” loomed large in the deliberations that produced these laws. Lancaster is Professor of Anthropology & Cultural Studies at George Mason University and author of Sex Panic and the Punitive State (U California Press, 2011). “The New Pariahs,” Roger Lancaster, 13 February 2015 2 Statistically anomalous events — involving the abduction, rape, and murder of children by strange men — gave rise to laws named after the child victims of heinous crimes. But in the 1990s, as in earlier sex panics of the 1940s and 50s, minor offenses were deemed preliminary to horrific acts. In any case, the aim of modern child safety activists has always been to catch, register, and monitor as many offenders as possible. And in this process, the public’s “right to know” has trumped any argument that offenders might have privacy rights, or that they might be reintegrated back into society. Now contrary to the common belief that sex offender registries provide lists of child molesters, the victim need not have been a child and the perpetrator need not have been an adult. Statutory rapists — who are not rapists at all, their crimes involving neither coercion nor violence — are covered in many states. Minors themselves comprise a substantial percentage — nearly 40% — of sex offender cases nationwide, and these cases disproportionately involve male same-sex play. Many of these hapless youth end up on public registries. Some states require exhibitionists and “peeping Toms” to register. No doubt the registries do contain a number of violent repeat offenders — the stated aim of the legislation that created them. But 98.6% of the North Carolina registrants sampled in a 2007 study by Human Rights Watch were one-time offenders. And fully two-thirds of the North Carolina sample had been convicted for the nonviolent crime of “indecent liberties with a minor,” an offense defined so broadly that it does not necessarily involve sexual or even physical contact. Culpability and harm vary greatly in these offenses. Some would not be classified as criminal under European laws, which set lower ages of consent than do most American laws. And because sex crimes are both broadly defined and closely monitored, the number of people listed in public sex offender registries is growing rapidly: Today it stands ate nearly 800,000 — That’s more than the population of Boston or Seattle. “The New Pariahs,” Roger Lancaster, 13 February 2015 3 If registered sex offenders were a city, they would be the 16th largest city in America. These registration and notification rules have eroded basic legal principles and amount to an excessive and enduring form of punishment. Newer laws go even further. • At last count, 44 states have passed or are considering laws that would require some sex offenders to be monitored for life with electronic bracelets and global positioning devices. • Ex post facto laws are considered inimical to democratic norms, but a 2006 federal law allows prosecutors to apply increased penalties retroactively. • New civil commitment procedures allow for the indefinite detention of sex offenders after the completion of their sentences. (Such procedures suggest a catch-22: the accused is deemed mentally fit for trial and sentencing, but mentally unfit for release.) • Variants of “Jessica’s Law” in at least 22 states and hundreds of municipalities restrict where a sex offender can live, work or walk. • California’s version, Proposition 83, prohibits all sex offenders (felony and misdemeanor alike) from living within 2,000 feet of a school or park, effectively evicting them from the state’s cities and scattering them to isolated rural areas. Digital scarlet letters, electronic tethering, indefinite detention, and practices of banishment have relegated a growing number of people to the logic of “social death,” a term introduced by the sociologist Orlando Patterson, in the context of slavery, to describe permanent dishonor and exclusion from the wider moral community. Now it is a curious fact that this, the creation of a pariah class of unemployable, uprooted sexual outcasts, largely escaped the notice of academic queer theorists — who, in their heyday, supposedly earned their keep by accounting for such phenomena. But this business has drawn attention from human rights activists, and even a journal as staid as The Economist has decried our sex offender laws as harsh and ineffective. -This should worry us more than it apparently does. “The New Pariahs,” Roger Lancaster, 13 February 2015 4 The techniques used for marking, shaming, and controlling sex offenders have come to serve as models for laws and practices in other domains. • Several states currently publish online listings of methamphetamine offenders. • Other states have or are considering public registries for assorted crimes (murder, domestic violence, drunk driving….). • Several other states maintain Web sites that give the personal details of all prisoners paroled or released from custody: photo, name, age, address, offenses, and periods of incarceration. • The use of electronic tethering is spreading rapidly. It is estimated that a quarter of a million people are currently manacled to some form of electronic monitoring. • This is to say nothing of new federal guidelines for campus rape accusations, which shift the burden of proof from the accuser to the accused, or perhaps especially affirmative consent guidelines, which classify a vast majority of human sexual encounters as rape. Admittedly, we are not talking about criminal penalties here. But some are already calling for the application of such criteria to criminal cases — to “fill the gaps” in current rape law. These practices represent an ongoing tendency to criminalize broadly, to punish excessively, to tack on “after-the-fact” punishments, and to create new classes of more or less permanently excluded subjects who can never serve their terms and can never be rehabilitated. These techniques are appealing, at a time of budget shortfalls and ever-less-expensive technologies; they replicate the logic of the carceral system while offloading the costs of supervision onto the offender and his or her family. In these regards, I have suggested that sex offenders are perhaps not so much “the last pariahs,” as the first ones: models for the production of perpetual criminalization and perpetual punishment in the dispensation that comes after mass incarceration. -I conclude on three dissonant, perhaps provocative, notes: First, I draw your attention to the complexity of what is unfolding before our eyes, if only we look at it. “The New Pariahs,” Roger Lancaster, 13 February 2015 5 These are new techniques of power, embedded in a far-flung series of presuppositions and predispositions. The capillary actions of new laws and new technologies are transporting these techniques into every social sphere. Entwined, they construct an expansive new web, a new grid of decentralized supervision and depersonalized control. Second, I stress the fact that these developments cannot be written off as “conservative” trends or tendencies. Surely, the usual forms of sexual puritanism are part of the mix. But varied forms of liberalism, including white mainstream feminism, are deeply implicated. Third, I underscore the crucial role of sex in the development of these techniques, and I place before you again the awkward fact that queer theory has yet to follow up Gayle Rubin’s call thirty years ago; has yet to fully think through the production of new queer legions that has happened on its watch. This, it seems to me, is scandalous. May I call your attention to the good work of the National Center for Reason and Justice? NCRJ works for child-protective laws based on science, fairness, and good sense; it supports people who are falsely accused or convicted of crimes against children; and it is pivoting toward doing more public educational work. I have recently joined Judith Levine, Debbie Nathan, and others on the Board of Directors, and invite you to visit our web site: ncrj.org. Please consider contributing to a good cause. NCRJ is a 501(c)(3) organization. Your contributions are tax-deductible. Disclosure: Neither I nor any other members of the board receive salary, stipend, or fees for our work.