Keeping sexual material away from sex offenders (1 of 2)

Nowadays it is common to impose conditions of release on sex offenders that place broad limitations on their access to sexually explicit materials. Here are some conditions of community custody imposed on a Washington state man convicted of rape:

1. Do not possess or access pornographic materials, as directed by the supervising Community Corrections Officer (CCO).
2. Do not possess or control sexual stimulus material for your particular deviancy as defined by the supervising CCO and therapist except as provided for therapeutic purposes.
3. Do not frequent establishments whose primary business pertains to sexually explicit or erotic material.

The logic of these conditions is, in my view, deeply suspect. They appear to rest on the unproven assumption that - as stated by one justice of the Washington Supreme Court - the offender "has difficulty controlling himself when he is sexually stimulated," and therefore viewing sexually explicit materials will lead the offender to commit further offenses.

Veterans and students of the feminist sex wars will recognize this as a version of the old canard, "Pornography is the theory, rape is the practice." It has long been argued, by those who favor subjecting to pornography to legal prohibition and/or strengthened social stigmatization, that (strong thesis) pornography cultivates violent sexual impulses and thereby creates rapists, or at least (weak thesis) that it feeds the impulses of those predisposed to commit sex crimes. Many have chronicled the history of these debates; suffice to say that neither thesis is supported by the evidence of social science (e.g., here). Given that this logic has been rejected by courts and legislatures as a basis for restricting access to pornography and adult businesses by the public at large, it makes little sense to impose such restrictions on


Yet in the context of the current social panic around sex offenders, applying this logic to conditions of release goes virtually unquestioned. Moreover, a lack of empirical support is probably not sufficient for render these conditions constitutionally suspect, given the lenient "reasonableness" standard usually applied to conditions of release.

On the other hand, claims that conditions of this nature are overly vague have been successful. Thus, in State v. Bahl, Washington's high court ruled that two of the above three conditions were unconstitutional because they were too vague. Tomorrow I'll discuss this case in detail.