Wednesday, February 23, 2011

Punishing Males for Thoughts?

In two cases in the news, loony thoughts are used to criminally punish males.

FIRST CASE:  A man in Erie, Pennsylvania was convicted of possessing child porn. That is indefensible, of course. What's peculiar about the case is that a federal judge allowed testimony that the man chatted online with the mother of a 4-year-old girl about his desire to breed a "society" of sex slaves.  He wasn't charged in connection with the on-line chats, and his lawyer argued "that sexually explicit online chats and e-mails the FBI has attributed to [the man] should be excluded as trial evidence because the writings represent free speech. The FBI is alleging [the defendant] in the writings detailed a plan to create a colony of child sex slaves." His lawyer noted: "The government seeks to have the Defendant tried for his alleged thoughts and free expression of speech. As all of this activity is perfectly legal behavior its introduction should be prohibited." 

The government claimed the evidence was relevant because the defendant's defense was that a disgruntled ex-girlfriend planted the child porn on his computer, and the "sex colony" writings, though not the subject of the criminal charges, are relevant because they illustrate the man's mindset. "This defendant wants nothing more than to terrorize children," a government lawyer said.

SECOND CASE: An eleven year old boy was handcuffed, arrested, and charged with “interfering with staff and students at an educational facility,” a third-degree misdemeanor for drawing pictures that depict violence against a teacher. See here

COMMENT: My concern in the first case is that the loony thought was all that was needed to convict the man on an unrelated charge (I say "unrelated" because it wasn't evidence of child porn). These are tricky issues, but note that in rape cases, we have developed an entire body of law that excludes evidence that is often just as "relevant" -- called the Rape Shield Laws. Those laws sometimes keep out otherwise relevant evidence that would prevent men and boys from being convicted of rape. I do not advocate keeping out relevant evidence just to keep someone from being convicted  of a crime, and I realize even suggesting that the "sex colony" evidence might not have been properly admitted in this case -- given the vile conduct alleged -- will not be popular. 

But -- and here's the point -- sometimes evidence has only slight relevance, and sometimes the probative value of evidence is so clearly outweighed by its prejudicial effect that it is proper to exclude the evidence.  I wonder if it was even possible for this man to get a fair trial on the child porn charges after the loopy "sex colony" evidence was admitted.  Even if he didn't put child porn on his computer, it would be pretty much impossible to convince a jury of that after hearing about the "sex colony." 
My concern in the second case is more fundamental. A boy was branded a criminal for thoughts that cried out for counseling, not handcuffs.

And that seems to be the solution for any aberrant male conduct nowadays: don't bother helping him. Toss him in jail.