The history of child sex abuse legislation in the United States follows a well-worn pattern: a chilling incident rouses public anger and fear, to which lawmakers respond with expansive, emotionally charged legislative action.
The 1994 Jacob Wetterling Act, the first law to establish federal guidelines requiring states to implement sex offender registries, was named after an 11-year-old Minnesotan who was kidnapped and murdered by a suspected pedophile. Megan’s Law, mandating public notification about registered sex offenders when deemed necessary, was introduced directly in response to the brutal rape and murder in New Jersey of 7-year-old Megan Kanka by a recidivist sex offender neighbor. And the expansion of the sex offenders registry to include juvenile registrants came in part in response to the assault of an 8-year-old Wisconsin girl by a 14-year-old boy.
It’s an understandable pattern, but a dangerous one. Premised on extreme horrors, sex offender laws have constructed an overreaching, excessively punitive registry system, which empirical studies and human rights advocates have found may cause more harm than good. Nonetheless, public support for a wide range of sex offender policy and law is consistently high, and the pattern of reactive legislation is rarely challenged. Such is the case at present in Michigan, where a flurry of legislation has been proposed in response to the case of Larry Nassar, the sports doctor accused of molesting more than 300 children and young people over a two-decade period.
Nassar is already in prison for the rest of his life, serving a 60-year federal sentence for child pornography and related obstruction-of-justice crimes, and two state sentences of up to 175 years for criminal sexual misconduct. Yet, his case has led to calls for reform.
“This package of bills delivers justice, justice for the children who were sexually assaulted,” State Senator Margaret O’Brien (R-Portage), a lead sponsor for some of the bills, said when the legislation passed the Senate in March.
She was joined at a press conference announcing the legislation by some of Nassar’s victims, who expressed a desire for justice beyond his slow death behind bars. “Together we will change our laws and our culture so that every child will be valued, respected and protected,” said Jordyn Wieber, an Olympic gold medalist.
To that end, more than 30 bills are under consideration in the Michigan House of Representatives, and a package of related state Senate bills was passed with overwhelming and speedy bipartisan support in March. Some of the legislation seems sensible, such as bills expanding sex education curriculum for students and requiring public schools to maintain records about why an employee leaves or is fired. But other bills, such as extending the statute of limitations and increasing prison sentences for child pornography possession, risk regressive consequences under the patina of progressive, victim-focused reform.
“The injustice in many of the laws involving sex or sex-related offenses is that they are passed without debate,” said Lawrence A. Dubin, a law professor at the University of Detroit Mercy, “without an examination of the underlying data that would show their ineffectiveness in accomplishing their intended goals and in creating people as monsters who are often not dangerous to anyone.” The Senate Judiciary Committee approved its bills in just one day. House hearings, which are already underway, are planned to go on for a number of weeks but the package is expected to easily pass.
Representative Rose Mary Robinson (D-Detroit) is among those who have criticized the bills. She told Michigan’s Bridge Magazine that most of them were “an overreaction” and “a waste of time.” Robinson did not respond to a request for comment.
Two bills under consideration would increase the number of years people can be imprisoned and the fine levied for charges related to child pornography on the state level. The bills would have limited consequences since most child pornography charges, including the ones filed against Nassar, are already federal (because the material is spread online). Responding to a question about why these bills were necessary, O’Brien told The Appeal they are meant to offer an extra “tool” for state prosecutors.
To Dubin, whose autistic son was placed on the sex offender registry for child pornography possession, legislation like this isn’t necessary. It also poses a risk in failing to offer the possibility of diversion programs instead of criminal prosecution, even if defendants are known to have developmental disabilities. When asked about this concern, O’Brien told me that she believes prosecutors would use their discretion when it comes to bringing charges in such cases. But dozens of cases nationwide speak to the criminal justice system’s shortcomings regarding defendants with developmental disabilities. And, more broadly, the bills reflect a tendency toward carceral and punitive approaches to the exclusion of more rehabilitative and therapeutic ones.
Perhaps the most controversial aspects of the legislative package involve extensions to the state’s criminal and civil statutes of limitations for sexual conduct cases — a recognition that many of Nassar’s victims were reluctant to come forward for many years. There’s already no statute of limitations in Michigan for first-degree criminal sexual conduct, while victims of second- and third-degree criminal sexual conduct have 10 years or until the victim’s 21st birthday to seek criminal charges. Under the proposed legislation, the statute of limitations would be eliminated for prosecution of second-degree criminal sexual conduct if committed on a victim under the age of 18, and extended to 30 years (or longer if DNA evidence is found) in third-degree cases. For civil suits, two new bills would give people who were sexually assaulted as minors the ability to file a civil action against the state of Michigan at any time and would apply retroactively to any sexual assaults that happened after 1996 specifically with Nassar’s victims in mind. (He began working as a team physician for Michigan State University in 1997.)
That troubles groups like the ACLU of Michigan. They say the issue remains that the possibility of a fair trial diminishes considerably over time and the difficulty of mounting a defense grows exponentially. “As a principle, removing the statute of limitations should be done with great caution,” Kimberly Buddin, policy counsel for the ACLU of Michigan wrote in a statement to the state’s Senate Judiciary Committee. “They were enacted to ensure the ripeness of a lawsuit and protect constitutional rights such as due process,” she added, noting that any extension of the statute of limitations should come with attendant reforms to ensure due process protections.
The case for extending or eliminating the statute of limitations in sexual misconduct cases, especially involving children, has been well made: Victims often take years to report incidents and can take many more years to be believed. The fact that many of Bill Cosby’s over 50 accusers are unable to prosecute in criminal court given the statute of limitations has provoked a nationwide conversation about the problem of the temporal constraints, and a swath of state legislative reforms against them. In defense of the Michigan bills, Senator O’Brien told The Appeal that she “feels comfortable” that due process will not be threatened. “Time does not favor a victim,” she added, noting that the burden of proof remains on the state and these cases remain difficult to litigate, especially since physical evidence is usually lost in older cases.
Due process concerns have also been raised about another of the bills, which would make it easier for jurors to hear about prior accusations of sexual assault against a defendant, with a judge’s permission, even if those allegations were never brought to court. Testifying before the House on a very similar bill, Lore Rogers, staff attorney to the Michigan Domestic and Sexual Violence Prevention and Treatment Board said such changes are important in helping victims speak out and be believed. “Allowing evidence of other sexual offenses by a defendant in such a case can provide corroboration of a victim’s report and assist the trier of fact in making these difficult credibility decisions.” While it might seem reasonable that a judicial process consider whether defendants have a history of accusations, as Nassar did, the principle that a trial is limited to litigating only the alleged crimes in question is a central tenet of our justice system.
Critics say these bills, taken together, are not only misguided but represent a squandered opportunity because they distract from the deeper question of why the culture of silence around sexual abuse persists. As Guy Hamilton-Smith, the Sex Offense Litigation and Policy fellow at the Mitchell Hamline School of Law explained, “Instead of addressing the reasons why people are waiting to report or not reporting at all, we’re seeking to fix it on the back end.” He’d rather see more conversations about the lack of victim support services, police functioning as gatekeepers to rape investigations, and the misdirection of prevention policies. “To the extent that these discussions get boiled down to an argument about statutes of limitations,” he said, “I think, we miss the bigger picture.”
And what does justice entail in a criminal case newly enabled under an extended statute of limitation? While these prison sentences may bring satisfaction and relief for victims, they do nothing to address the deep flaws in our criminal justice system. As Kelly Hayes and Mariame Kaba argued here in response to Nassar’s “death warrant”-length prison sentence, “When we see defendants as symbols of what we most fear, and that which we most greatly despise, we are confronted with a true test of our belief that no justice can be done under this system.”
We find ourselves in a political moment when #MeToo, a movement against sexual violence and for survivor justice, is leaning on policing and courts at the very same time that social justice advocates push for decarceration efforts and abolition. The proposed package of bills includes some good, preventative measures. Yet at a time when Michigan’s incarceration rate has dropped to a 20-year low, we should be wary of reactive legislation that conflates justice and societal security through more imprisonment. Those who seek vengeance through incarceration attempt to vindicate themselves by pointing at the few Larry Nassars of the world who get locked away, but vile cases like Nassar should not be used to further bolster an inherently violent system under the guise of obtaining justice.