May 05, 2006

Answering the Question

by PG

Milbarge at BTQ poses a series of question:

For example, could Congress punish chi1d p0rn0gr@phy involving girls more harshly than c.p. involving boys? [...] What if we had a "girl/boy disparity" in penalties for c.p.? As a practical matter, would it be an effective deterrent? Would offenders switch to boys? Did crack users switch to cocaine?

Leaving that aside, would it be constitutional? Note that the federal sentencing guidelines already provide for a sentence enhancement for choosing a "vulnerable victim." It's often applied to the elderly, the young, and the disabled or mentally challenged. Are those okay only because none of those are "suspect classes"? Could a court simply find that girls are especially vulnerable to certain kinds of crimes, and sentence accordingly?

I haven't thought a lot about it, but my hunch is that it wouldn't be constitutional, per Craig. I think that's even more likely to be the outcome if strict scrutiny applies, post-U.S. v. Virginia (1996). I think it's probably moot since I doubt the factual foundation necessary for a sex distinction in sex crimes wouldn't really pan out. But there's also something... I don't know... almost visceral, just a sense that this isn't the right way to run a railroad. What if we were talking about sex-based punishments for (adult) rape? And if that doesn't sound right, either, what does that mean for "hate crimes" laws? Why are they okay? And if they're not, why can't women go topless in public?

Hate crime law is based on the perpetrator's motivation. One can commit a hate crime against a white, middle aged, abled, heterosexual male if the motivation for the crime was hatred of his race, age, ability, orientation or gender. As far as I know, there's nothing in hate crime legislation that mandates higher penalties for those who perpetrate crimes against minorities, the young or old, disabled, gay or female. Higher penalties may be given by judges or juries just because we're accustomed to thinking of bigotry as directed only against the less powerful, but I don't think it's in the text of the hate crime legislation.

Sentencing law distinct from hate crime law does provide higher penalties against those who target the most vulnerable, but this is not due to the perpetrator's motivation. Rather, it is an attempt to shift the incentive to go after very young, old, physically or mentally disabled targets. Normally these are the easiest people against whom to commit crimes -- hence the phrase "like stealing candy from a baby." Enhanced penalties, however, change the equation of risk.

I don't think statistics show women are more likely to be victims of crime, especially of stranger crime. Women are more likely than men to be sexually assaulted and assaulted by intimates, and VAWA was a product of states' prosecuting these crimes insufficiently (just as incidents of under-enforcement like that in Mississippi Burning birthed federal civil rights and hate crimes legislation), but child pornography already is a federal crime and I doubt that anyone pursues pornographers who exploit girls less vigorously than those exploiting boys. That we typically think of women as the victims of sex crimes probably is balanced by the existence of NAMBLA, which conservatives like Hadley Arkes hold up as reason to ban all homosexual sex.

Women have the right to topless equality in D.C. and New York State due to court rulings. However, gender- discriminatory rules on nudity might get past heightened scrutiny* based on nuisance, the rationale Texas uses to bypass the Equal Rights amendment to the state constitution in prosecuting women for toplessness. Also, recall that the Supreme Court has found women's exposed nipples to be a plausible threat to public health, safety, and welfare, and I doubt that Roberts and Alito are going to switch from Rehnquist's and O'Connor's postion on the matter.

* U.S. v. Virginia didn't create a strict scrutiny standard for gender. In writing the majority opinion, Ginsburg dared only to go as far as demanding that the state show an "exceedingly persuasive justification" -- and even that produced a Rehnquist concurrence -- rather than using the language of "narrowly tailored" and "compelling governmental interest," phrases that applied to gender discrimination likely would have lost her Kennedy's vote.

May 5, 2006 03:00 PM | TrackBack
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