Child Abuse: A defence counsel offers a plea in mitigation before sentencing in a US court.
“…The defendant’s prior transgressions violate some of our deepest cultural taboos. They horrify and disturb us at a level almost unparalleled in other offences. This certainly comes, largely, from a rational desire to protect our young from harm. Yet one has almost to go back to the Greek notion of ritual “uncleanliness” to find some historical equivalent to the horror it bestirs in the collective psyche. This makes such crimes hard to even speak about in the measured terms our justice system uses for other crimes.
In researching this general area, the disparity of punishment might even be called be called “wild”. In one state case, a man’s sentence for possession of child pornography (not the present issue, but same general area), is two years in prison with all but 45 days suspended. In another case, the man got an aggregate sentence of 100 years in prison! But the two cases were very much alike. Both involved possession of child pornography, not manufacture or distribution. Such disparity betrays the irrational aspect to the punishments relating to sexual matters. In Bradshaw v. State, 284 Ga. 675, 681-83, 671 S.E.2d 485, 491-92 (2008), it was explained that for failure to register, three states call for a maximum punishment of two years; 12 call for sentences of up to five years; six provide maximum terms of 10 years; two allow up to 20 years; and New Hampshire calls for a minimum seven-year sentence. Georgia wanted to allow a life sentence, but this was struck down. So, in three states, the most a person can get is two years. In Georgia, the court sought no less than life!
Probably, until another age and time comes, historians will not be able to study the full scope of what makes all this so. Yes, our outrage seems all perfectly normal to us, and so it ought. But the religious fear and trembling of medieval man seemed very ordinary to him too. This of course is not the place to fully ruminate about such questions, but the defendant deserves to have the anxieties relating to this area of law kept partly in mind when he is sentenced, so that its darker aspects not weigh too heavily upon his punishment.
This leads to a second point. It is easy to distinguish between a man who, say, kills a man in a bar brawl from a man who, say, butchers a victim he snatched from the street. Such men are different and we all know it. It does not take a Dante to determine that the second gets a lower circle in the inferno. Yet it is all too easy to lump the defendant in with a man who molests young children. He is not. In February 2013, the Sentencing Commission released a report to Congress on the child pornography guidelines for non-production offenders. See U.S. Sent’g Comm’n, Report to the Congress: Federal Child Pornography Offenses (2012). Granted, this is not the same as what the defendant did in the past. But the Commission explained: “the enhancements for computer use and type and volume of images “now apply to most offenders,” the guideline “fails to differentiate among offenders in terms of their culpability.” Id. at iii, xi; id. at 209, 323. Thus, others too have noticed the problem here.
So what is the defendant’s past history exactly? When the defendant was 20, he dated a girl of 16. And when he was 25, he attempted to seduce a girl of 15. This is not quite the same as a grown fellow who molests a little child. We know, for example, that when the singer Jerry Lee Lewis was 22, he married Myra Gale Brown who was 13 years old at the time. This was not totally uncommon not so long ago. And even today, groups like the Amish or Hassidic Jews, say, often marry by 15. In much of the world such matches are still common. And in Western history, it would not have raised an eyebrow, from the peasantry up to our most ancient royal and ducal houses. Indeed, prior to the industrial revolution, the age of consent was low in many states, reaching to 10 years of age in some states. It was assumed that parents and churches could deal with young folks trying to deal their developing hormones. But when young women began to flock to cities from the farms, nobody was there to watch them. The Women’s Christian Temperance Union sponsored legislation increasing the age of consent to 16 and 18 years old. This reform swept the states in the 1880s, and its product remains the law today. What prompted the law was a fear familiar to current efforts to expand the sex offender registry at every chance: stranger danger. If young women were far from home, any predator could take advantage of them. The law was never intended to crush those young men and women who fell in love.
Furthermore, when the defendant was 12, he made a mistake based more on the curiosity of that age, than on sexual desire, this time with a girl 9 years old. This used to be called “I’ll show you mine if you show me yours.” One wonders if more people than we care to admit did not have some similar experiment. Yet, in the defendant’s case, the police were called in, and a scandal followed. The entire course of his life was thus dramatically altered, partly because he was branded early on, in a sense. The defendant really had the book thrown at him for the things that followed, in a way that might be though out of proportion to his actual conduct. When all is said and done, when the defendant was in his twenties, he put his romantic attentions to girls who were teenagers. And he spent near half his life in jail on account of it.
Moreover, though all nations have concerns about sexually improper acts, there seems to be a kind of peculiar twist in countries with a Protestant history. These nations have a distinct suspicion and terror about what is going on “inside” people that is not quite found elsewhere. Perhaps, early on, protestants spent much time examining their own consciences for signs of being “elect,” and this led to a kind of curiosity everyone had about each other, about who was elect, and who was not. Even the popular suspicions today about who might be a “serial killer” has its origin in this historic religious particularity, which started on the old continent even before our witch trials. Child predators fit in very nicely to this pattern. So did communists in days past. Everyone wonders who might really be one. And so when we finally catch one, we punish with a kind of religious horror and zealotry that simply does not exist in other areas of law. Counsel, of course, cannot “prove” this. But we would implore the Court to at least consider whether it may not be so? “