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A cluster of court rulings over the past month takes nips at the power claimed now by the state to dispose of the lives of people accused of illegal sex -- sex that's frequently victimless and/or gay.

· On September 4, a U.S. District Court judge in Ohio ruled that it was unconstitutional ex post facto (i.e., retroactive) punishment to force a man to move to comply with a ban on sex offenders living within 1,000 feet of a school or daycare center. The decision allowed such bans only for people convicted after passage of the residency law.

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On September 7, a U.S. District Court in North Carolina struck down the 2006 federal civil-commitment law. Judge W. Earl Britt ruled that Congress overstepped its authority and set too loose a standard of proof when it allowed the designation of any federal prisoner as "sexually dangerous," thus allowing his indefinite further incarceration after completion of a prison sentence.

· On September 25, Maine's Supreme Judicial Court declared that the state's online sex-offender registry -- which in 2006 abetted the killings of two men whose names and addresses were posted there -- may constitute punishment that's illegally after-the-fact.

· On October 1, the U.S. Supreme Court refused a request by Idaho's attorney general to reconsider a 2006 decision by the state's highest court, thereby letting stand a ruling that people convicted of illegal sex can invoke their Fifth Amendment rights against self-incrimination and refuse to participate in pre-sentencing "psychosexual evaluation" even if what's at stake is a harsher sentence, not additional charges.

Stalinist psychiatry revisited?

Federal Judge W. Earl Britt's ruling in North Carolina puts a hurdle in the path of the U.S. Department of Justice (DOJ), which has petitioned to hold some 56 inmates who've completed their sentences in psychiatric hospitals for, potentially, the rest of their lives. The men had been convicted of crimes as minimal as possessing illegal porn.

A federal "civil commitment" law was part of the "Adam Walsh Child Protection and Safety Act" that passed Congress last year. Other provisions of that omnibus sex-crimes law nationalize sex-offender registries under the Department of Homeland Security and require internet cruising sites to identify to the government any person posting a sexually suggestive photo online. (With proposed rules issued by the DOJ this July, cruising sites are scrambling to figure out what to do.)

In 1997 the U.S. Supreme Court upheld Kansas's civil-commitment law. That tortured 5-to-4 decision, written by Clarence Thomas, asserted that lifetime confinement was not punishment. Sane people could locked up in mental hospitals, Thomas declared, if a court found they had a "personality disorder" (a term with no recognized definition) that made them "likely" to break sex laws in the future.

Some critics contended that the decision opened a new era of "states' rights" for sex laws. The doctrine of states rights was the legal principle long championed in the American South to allow racial segregation, despite Constitutional prohibitions. Some 19 states around the US have passed civil-commitment laws and some 2700 men are incarcerated under the provisions, with the number only going up.

Ironically, arguments based on states' rights take up the bulk of Judge Britt's ruling against the federal civil-commitment law. Incarcerating people preemptively to prevent future illegal sex may be a great idea, but Congress, Judge Britt contends, simply lacks the authority to do it.

"[T]he federal government has created a situation in which its commitment efforts are likely to solely prevent the commission of state criminal conduct," the judge wrote. The statute "improperly deprives the state of... police powers and impermissibly intrudes upon an area historically regulated by the states."

Judge Britt may be cannily grasping at a legal principle right-wing higher courts will find loathe to contravene. But in addition, he found a reason based more on civil rights for striking down the law: the standards it sets for declaring someone "sexually dangerous," he ruled, are too vague.

Britt's decision notes that the statute he struck down allows a person convicted of any federal crime -- from growing marijuana to tax evasion -- to be civilly committed as "sexually dangerous." Information from any source may be used in judging whether the person in federal custody "has engaged or attempted to engage in sexually violent conduct" or sex with minors.

Since the likely life sentence at stake in a civil-commitment hearing is not "punishment," Congress said the evidence need not be proven "beyond a reasonable doubt," the standard that prevails in criminal trials. A lower standard -- "clear and convincing" -- suffices. Or so the law says. Britt ruled that when it came to evidence of past "sexually violent conduct," that standard was too low, and that the higher evidentiary threshold of "beyond a reasonable doubt" must apply.

But besides past conduct, real or intended, the civil-commitment law's second prong requires a "personality disorder," whatever that is. That question is subject to the "subtleties, the nuances, and the fallibility of psychiatric diagnoses," the judge wrote. All the more reason to demand the higher evidentiary standard here, too? No, the just the opposite. On that foggy question Judge Britt was happy to accept the law's lower standard of "clear and convincing."

Judge Britt's decision is for now just a paper victory for the five men who appealed their continued detention. They are being held past their sentences at the federal prison in Butner, North Carolina. The judge refused to free them, pending an expected appeal. Britt's striking down the civil-commitment law sets a precedent, but his decision only applies in the Fourth Circuit -- relevant as it includes the Butner Federal Correctional Complex, one the feds' main sex-related prisons. Other civil commitment proceedings in other parts of the U.S., however, are still going forward.

One might think that the first cases the feds would bring under a constitutionally dicey law would be compelling -- cases against, say, inmates with long rap sheets attesting to violence. But the record so far shows that the DOJ is deploying its new anti-sex atomic weapons with startling casualness. Three of the five men the feds are seeking to lock up indefinitely received short sentences for possessing or downloading illegal porn.

Über-law

Proposed rules that the DOJ issued on August 3 show how widely the feds seek to apply their new powers. Reasons for permanently locking up anyone in federal custody as "sexually dangerous" are valid "regardless of the source," the DOJ declares. "All available evidence and information may be taken into account," including that from "medical records" and "federal or non-federal authorities." Since this is a civil and not a criminal matter, those "prosecuted" have no protection against self-incrimination: anything the accused have ever said or written can be used against them.

Words matter, because the feds don't have to prove the accused did anything, merely that they attempted to. And some federal sex laws criminalize mere intent -- such as a 20-year-old's "intent" to travel interstate to have sex with a 17-year-old; authorities are free to give their speculations the force of law. The veering into thoughtcrime is not by accident: a person's "denial of or inability to appreciate the wrongfulness, harmfulness, or likely consequences of engaging or attempting to engage in sexually violent conduct" is itself grounds for lifetime incarceration.

Persons in federal custody who have HIV need to be particularly worried. "Sexually violent conduct," say the proposed rules, "also includes engaging in any conduct of a sexual nature with another person with knowledge of having tested positive for HIV, or other potentially life-threatening sexually-transmissible disease, without the informed consent of the other person to be potentially exposed." Is French-kissing included? Does wearing a condom count? Presumably the answer depends on how badly the feds want to lock you up forever.

Unless Judge Britt's decision is upheld, those now in federal prison for sex or porn may find it hard ever to get out.

Not dropping the hot potato

A September 25 decision by Maine's Supreme Judicial Court, by contrast, is an amazing exercise in legal humility. Like civil commitment, putting up on the web the names, mug shots, and addresses of people convicted of illegal sex has been deemed as not counting as punishment. Maine's highest court has hewed to that view, as has the U.S. Supreme Court. In reversing course in this case, a unanimous court has allowed a suit to proceed to examine whether state-mandated online postings of sex offender's personal data constitutes "punishment." The case involved was filed by a man who said he would lose his family, his home, and his job were he forced to register as a sex offender. He had pled guilty as a teenager to contact with a 12-year-old relative, a charge adjudicated years before the registry was created.

The Maine court's change of heart partly stems from the way lawmakers had continually expanded the scope of the registry. In 2005, the registry was extended back to cover all persons sentenced for illegal sex after 1982. More and more restrictions were piled on registrants, as well: where they couldn't move, with whom they couldn't talk. But maybe the most important factor was the random murders on Easter Sunday 2006 of two men apparently randomly picked off Maine's online registry by a deranged Canadian.

"We now recognize the extent to which the State's use of the internet to display registration information correlates to the shaming and branding punishments used in colonial times, and we have seen the registries' potential for causing retributive and vigilante violence against registrants," wrote justices Donald G. Alexander and Warren M. Silver in their stronger concurring opinion.

For now at least, the decision has remapped the boundaries of public rhetoric in Maine. "This opinion should force the public and all levels of government to reconsider the effectiveness of online registries as a weapon against sexual violence," declared the Portland Press Herald in a September 29 editorial. With U.S. politicians having caved in to sex hysteria, is the judiciary the last hope for charting a path out of the wreckage?

Author Profile:  Bill Andriette
Bill Andriette is features editor of The Guide
Email:	theguide@guidemag.com