Episode 18: Revenge of the Porn: Sex Crimes & Policy, Part 1 of 2
Nick: Hello everyone. This is Nick Gansner.
Jessa: And this is Jessa Nicholson Goetz.
Nick: And we are back here with another episode of Getting Off.
Jessa: So, you guys, this is gonna be a little bit of a policy or introduction episode. Our last two, well, or 2.5 deep dives depending if you count the Steele case as its own or an offshoot of the Aaron Hernandez conversation. But our last few conversations have been about homicides. And while Nick and I have both handled homicides and both tried homicides, we actually live in a different world, in terms of what we do day to day. About 80% of our cases deal with people accused of crimes of a sexual nature.
Nick: Of one sort or another.
Jessa: Right. So we’re gonna come home. We’re gonna come to pervert lane. That’s where we’re coming back to. That’s where our office is. That’s where this recording studio is, in the basement corner off an alley where there’s a flasher.
Jessa: At least on Tuesdays. So we’re going to shift back into talking about some SVU type stuff, and we’ll tell you at the end of this episode, so that we get you to listen all the way through, the case that we’re doing next. But we’re gonna lay some ground work by talking about laws surrounding child pornography, the production of child pornography, sex with a child under certain ages, and the sex offender registry. So we’re gonna talk about different and various crimes of a sexual nature. But before that, I think we have some housekeeping matters. Is that right, Nick?
Nick: We do.
Jessa: Why don’t you start with our issue about pending stuff?
Nick: Alright. We continue to get really fantastic comments on the Facebook group in particular. One listener had a great idea and suggested a case to us, a case that’s out of Florida. A young man named Austin Harrouff. I hope I’m pronouncing that young man’s name correctly.
Jessa: I know you’re not looking at me as though I’m the pronunciation goddess.
Nick: I’m not. And I do know we are familiar. We’ve become familiar with the case that the listener referenced to on Facebook but we’re gonna have a policy of not commenting extensively on cases that are still pending and this young man’s case is still pending. Meaning, this is an active prosecution. He has not gone to trial yet. He has not been convicted or acquitted yet. This case is sort of on its way to trial, or maybe not. Maybe some other kind of resolution, but it is a pending case. We’re gonna have a policy of really not touching those. And for several reasons which, go for it.
Jessa: Right. So. Once a case, once a trial starts, we will Court TV that all day. We have no problem talking about what happened in a courtroom because at that point, we know and we’re satisfied that jurors have been instructed not to watch the news, not to listen to things, not to read about the case. If they come in contact with the case, to immediately turn and go in the other direction. Not be on social media.
Nick: And jurors are regularly instructed by judges to do exactly. When you are on a jury, you are supposed to avoid any information about the case that you are not being presented with in court. The judge controls what evidence the jury sees and they’re not supposed to take in other information.
Jessa: . So after we know that a jury has had that admonishment, then we’re okay to talk about it because we trust that those jurors are going to, if they happen to be listening to this podcast, which by the way, you guys. We’ve had 65,000 downloads in our first 30 days, so thank you all so much.
Nick: That is amazing. Thank you. That is amazing.
Jessa: We don’t know what’s good or bad but we feel like that’s pretty good. But because we do so strongly believe in the presumption of innocence here, we don’t want to be doing something during the pre-trial stages where maybe someone hears about it who tell their friends who are local, and suddenly, we’ve contributed tainting a jury pool.
Nick: And impacting somebody’s ability to be appropriately viewed as innocent until proven guilty. So we’re gonna leave things alone while they’re pending. There’s also, I mean, there’s that. Those are more idealistic reasons. It’s also the fact that while a trial is pending, it’s unlikely that publicly, there’s gonna be access to a lot of material or a lot of evidence or a lot of anything. Primary sources. And so we’d be relying almost entirely on journalistic coverages of the case which, I think we’ve talked about before. We both have some real reservations about the quality, the legal accuracy and quality of journalism covering criminal proceedings. And so, I don’t really think that’s a good way for us to proceed, try to talk intelligently for other people, when all our sources are journalists.
Jessa: Right. So once a jury is sworn, we’re happy to be off to the races. Until then, we’ll probably monitor the cases that you guys suggest, so don’t stop sending us things.
Nick: And this was a great suggestion because the first thing that came up when I looked up, the name sort of tickled my brain, and once I saw it, I was like “I do remember when this happened”. But this would be of real interest to us because this young man’s attorney’s just indicated to the court that they’re going to pursue a “insanity defense”, so that certainly is of interest to us. So this will be a case for us to keep our eye on. Thank you for the suggestion. And keep ‘em coming.
Jessa: Right. So don’t be afraid to tell us about things that are still pending that you think are interesting. We probably just won’t touch on it yet until the trial has started or concluded, depending on when we find out about them. Okay. So that’s our first housekeeping matter. We have another housekeeping matter which is, I’m gonna start laughing now. Which is the number of verbal tics that we obviously have. And we’ve been having the world’s greatest time seeing the BINGO card that somebody made of our different little mannerisms. And sort of throw away sentences.
Nick: I feel queasy about it. What’s going on on Facebook is hilarious and I hope we’re doing a good job of having a sense of humor about it. Other people are doing an amazing job of having a sense of humor about it. But I’m gonna try to watch what I say. I don’t think I wanna have verbals tics.
Jessa: You’ve officially ashamed Gansner.
Nick: Yes. I have been shamed.
Jessa: “Literally” and “ergo”.
Nick: I’m more okay with “ergo”. I definitely have a problem with “literally”. I am striking, as I said on Facebook, I think just last night, I’m striking literally..
Jessa: From your vocabulary?
Nick: No more.
Jessa: I personally am striking “righto” cause I didn’t even know that was a word I said.
Nick: I know it’s a word you say. I actually like it.
Jessa: I don’t like it.
Jessa: So one of the things that we’re kind of laughing about as we’re talking about this is, you know. We’re actually used to reading transcripts of ourselves. And we don’t have those tics on a cold record in a trial.
Nick: But that’s in a courtroom. So what we’re learning about ourselves is that we’re talking differently in a courtroom than we are on this podcast, which on one level, doesn’t surprise me at all.
Jessa: No. Cause it’s a conversation that we’re having as friends and partners. You know. It’s not the same thing as when we’re presenting in front of a jury. Though I do like to think I have a conversational style in front of a jury.
Nick: You do.
Jessa: And I’ve been told that, but I hear some of the, I was relistening to the last set of episodes we did with Andy Martinez, who was a wonderful guest. And I can definitely hear them so we’re gonna work really hard on trying to make that better. I’m sure they will slip in occasionally. But we don’t want to have to hear “look” every time.
Nick: Correct. Like, an occasional “look” is fine. Maybe an occasional “ergo” cause I actually don’t have too much of a problem with “ergo”.
Jessa: An occasional “ergo” is always alright. That’s acceptable.
Nick: But I don’t want the whole show to be filled with tics. Just like, constantly. So this is adventures in, I don’t know what. Podcasting? Broadcasting? We’re learning as we go here. We’re getting this great feedback from you guys.
Jessa: And it’s hilarious. You guys are hilarious. We love you so much. We love our Facebook group so much.
Nick: Amazing. And I would be far more embarrassed about these verbal tics if people did not have such an amazing sense of humor about it.
Jessa: So. Okay. That’s our other, that’s our shame section for the day.
Nick: Our verbal house of shame.
Jessa: Our verbal house of shame, which that’s a phrase you’ll hear over and over again. I’ll save that story for another time. Alright. So let’s talk about porn.
Nick: Alright. So do we want to talk off, well, we can talk about, start off talking about some of the criminal laws in Wisconsin, and apparently, that’s one of our verbals tics, too.
Jessa: Which maybe you guys, if we’re talking about the law like it’s a fact, just assume we’re talking about Wisconsin law from this point forward and we’ll make a point of saying “This was a California case, so blah blah blah.”
Nick: Right. And we, if we’re doing deep dives on cases, we will look up the laws and the jury instructions, as you know if you’ve been listening so far, for the cases where they took place. But if we are speaking generally like we’re going to in this episode, we’re talking about Wisconsin law because that’s what we’re most familiar with. What we’re getting at here is talking about laws, criminal laws that have to do with pornography or images of nudity in one shape or another. And we’re gonna move to talk about other sex crimes, laws, as well, but we thought we’d start with pornography.
Jessa: Because we know it when we see it. That was a little Supreme Court joke.
Nick: Potter Stewart, right?
Nick: So. I mean, the primary pornography law in just about every state concerns, cause look. Most pornography is legal and it’s all over the place.
Nick: But some pornography is not legal and the primary form of “not legal pornography” is pornograhy that depicts children. That is typically called “possession of child pornography”. That is absolutely illegal in Wisconsin, as it is..
Jessa: Can’t do it.
Nick: Can’t do it.
Jessa: You can’t have, you can’t have pornographic pictures of kids. And you heard me catch myself before I said “naked” because you can actually have naked pictures of kids.
Nick: Yes. I mean, you’re pushing your luck.
Jessa: It’s probably ill-advised, so all of us that are children, like. I was born in the 80s. Nick was born in the 70s. I’m sure our parents both have pictures of us in the bathtub. I know mine do. I’ve seen them. They liked to show them to my boyfriends when I was younger when I would bring them home just to embarrass me.
Nick: That’s weird.
Jessa: Yes. It is weird. Hi Mom. Hi Dad. As if either of you know how to download a podcast. Anyway. So those cute little bathtub pictures or the Coppertone Baby, gone are the days of naked or nearly naked children being adorable. And are the days where..
Nick: You are pushing you luck if you’re doing that.
Jessa: Where it is a really bad idea to do.
Nick: If you are photographing your child in the bathtub, I would highly advise people to make sure that photograph does not include, for example.
Nick: Yes. Like, keep that out of the picture.
Jessa: That’s a bad scene.
Nick: Bad things happen. Look. I just did it. Most child pornography are just straight up legitimate child pornography cases, where there’s not a ton of ambiguity about what’s going on. But there are, you do read about cases that are totally borderline, where people get prosecuted for things that make you say “Wait. What?” And so I would absolutely advise people, why would you push your luck?
Jessa: Right. And pornography is defined loosely by law, and that was our, we’ll know it when we see it joke.
Nick: Which comes from a Supreme Court case.
Jessa: Which comes from a Supreme Court case dealing with the definition of obscenity or obscene materials. But basically, it has to be something that utterly lacks artistic, scientific, or educational value and appeals to the prurient interests of the viewer.
Nick: Right. In Wisconsin law, it is specifically you can’t possess or have in any stinking way a recording or a photograph or yadda yadda yadda image of a child engaged in sexually explicit conduct. Right?
Jessa: Which can be lots of things. That can be masturbatory. That can be sexual intercourse. That could..
Nick: Just be the way the body is displayed.
Nick: That is open to a lot of interpretation. But any time a criminal statute is open to a lot of interpretation, the first person who gets to interpret it is the prosecutor. So that puts an enormous amount of discretion into the hands of a prosecutor which, sometimes, can be dangerous. I don’t think it typically is in child pornography cases. But again, you do hear about cases that are borderline and you hear about it and you’re like “Wow. Have we gone too far this time?” Again, majority of cases, there’s not usually a lot of debate about this particular issue.
Jessa: There’s also this whole child erotica thing.
Nick: That shouldn’t be.
Jessa: That shouldn’t be.
Nick: Is that a thing? That should not be a thing.
Jessa: Dude. Both Otis and I have had more than one client say to us “It’s not actually child porn. It’s child erotica. Go down and look at it.” Which is one of my least favorite days.
Nick: Oh. That’s everybody’s least favorite day.
Jessa: And I really don’t think that when you take kiddie porn and you put a Romeo & Juliet quote over it in some weird font, that that somehow converts it to child erotica, but there’s a ton of litigation on that. On where the line is in between erotica, which is technically, legal and pornography of children, which is technically illegal.
Nick: You are telling me that there is a legal distinction between erotica and pornography.
Jessa: There is.
Nick: And so one, okay.
Jessa: Has artistic value.
Nick: Okay. That has to be where the line on that comes down. But so, no. In my mind. Throwing, like, some scripted old fashion font and some quote from some other actual piece of art onto a sexually suggestive photograph of a child. I mean, I get it. Would we advance that argument if there’s support for that in case law and we had a client and that actually applied? That fit the alleged pornography we were talking about? Would we advance that argument? If it was a real argument to make, but I don’t like it.
Jessa: So that’s kind of step one. We have, at our office, a list of people you’re not allowed to fuck. And number one at the top of that list is children.
Nick: It’s not that big a list. Like, people are, this is America. This is more or less a free country. You’re allowed to do most of what you want to do.
Jessa: You can have sex with almost anyone. You just can’t have sex with inmates if you’re a correctional officer, children, members of your immediate family.
Nick: If you’re a psychiatrist or a doctor, you can’t have sex with a patient.
Jessa: If you are a teacher, you can’t have sex with a student in a lot of places.
Nick: But the list just isn’t that big.
Jessa: No. And, like, everybody else is fair game.
Nick: As long as it’s consensual.
Jessa: And they’re adults. And that kind of brings us to a second point which is, in every state, it is illegal to have sex with someone who is under a certain age. And the age of consent varies from state to state. I think the lowest that I’ve seen is 14. I think many are 18. And there are some that draw distinctions even within that.
Nick: Which is true in Wisconsin. You cannot legally have sex with someone who is under the age of 18 in Wisconsin.
Jessa: But it’s a misdemeanor to have sex with a 16 year old or a 17 year old. And it’s a felony to have sex with somebody who is 15 or younger.
Nick: Varying degrees of felony.
Jessa: It’s an even bigger felony. It’s like, the biggest felony other than homicide to have sex with a child under the age of 13.
Nick: Right. And one thing that is curious about these laws in our state is that possession of child pornography is one of the few crimes that carries with it a mandatory minimum sentence of any kind. So there just aren’t that many crimes in Wisconsin that have mandatory minimums of any sort. But some of them are, like, OWIs. Right? Drunk driving where we’re talking about, if you’re on your second offense for drunk driving, you can’t get less than five days in jail. Okay. So that’s obviously, way less severe than what we’re talking about here. Possession of child pornography in Wisconsin carries with it a mandatory minimum of three years in prison. That’s actual prison time. Not parole or ES or whatever. That is three years in a prison. Not a jail. In a prison. Which we can talk about, and perhaps we will, the propriety of that, whether that makes any sense or not. But here’s a particularly curious aspect of that.
Jessa: I know exactly what you’re gonna say.
Nick: With very few exceptions, actually sexually assaulting a child does not carry with it a mandatory minimum prison sentence or sentence of any kind.
Jessa: That’s correct.
Nick: There are very limited, at the most extreme end, there are, like, some of 25-year mandatory minimums at the very extreme end of child sexual assault.
Jessa: Which is repeated acts of sexual assault against a very young child.
Nick: You’re way into repeated first degree sexual assaults.
Jessa: But basically, if I were to take a pornographic photograph of a 15 year old, and were charged in state court for that because there’s a lot of federal prosecutions of child pornography, specifically the manufacturing of child pornography, and we can talk more about that. But if I were to take that picture and were charged here in state court, I would have to serve three years in prison. If I actually had sex with that 15 year old, I could potentionally get probation.
Nick: And sometimes people do.
Jessa: And sometimes people do.
Nick: I would say the most common outcome, and we can draw some numbers and get hard numbers on this, but people commonly do go to prison for that. It’s not required. It’s not mandatory that you go to prison for actually sexually assaulting a child, whereas if you possess a picture of such a child as you just said, you must go to prison. And I don’t know. That doesn’t make a lot of sense to me.
Jessa: So it flips the old maxim of “You can look but you can’t touch” totally around. Apparently, it’s more cool to touch.
Nick: I mean, you can’t do either one. But you super can’t look.
Jessa: Correct. You really can’t have any of that. And this developed. There’s been all sorts of really weird offshoots of kiddie porn laws. So there was a whole line of cases that talked about “What if it’s a fake kid? Then what? What if it’s a digital kid? Is that okay?”
Nick: You mean if it’s literally if it’s like, CGI?
Jessa: Yeah. And the answer to that is fake kid: thumbs up. Real kid: thumbs down. 18 year old digitally altered to look like a kid: thumbs up.
Nick: Like, the kid has to be, A: a real kid, and B: under the age of 18. It has to be a real kid. Both a kid and real.
Jessa: Both a kid and real. So you know, another line of cases that has just hit the development, the law, is that we’ve got all of this sexting. And that’s the age of smartphones, the age of social media, the age of the disappearing Snapchat photos. When Nick and I were in high school, we didn’t have cell phones. So we couldn’t take pictures of ourselves to send to our boyfriends and girlfriends. Or receive them. All of which is a crime because if you take a picture of yourself and you’re under the age of 18, you have just created child pornography.
Nick: So you could, in theory, and sometimes this actually gets charged, sometimes, as crazy as this is about to sound. You can victimize yourself in the production of child pornography of yourself.
Jessa: Right. You can be your own victim. Additionally, if you are, say for example, a young woman who sends her boyfriend a nude picture of herself, and when I say young, I mean under the age of 18, he is then guilty of possessing child pornography, even if he is younger than you. And vice versa. So if he sends you a picture, then you are guilty of possessing child pornography. And there are some very serious mandatory minimum sentences in most state courts and definitely in federal court, cause I think the federal production of child porn mandatory minimum is double digits. I don’t, I mean, it’s not a walk in the park. It’s serious time.
Nick: Well, right. In the way that federal court is typically across the board, draconian and much more harsh than state court.
Jessa: So one of the things that has come up and we see in our practice all the time, and by the way. If you’re convicted of possessing child pornography or manufacturing child pornography, you’re gonna be a sex offender, basically for the rest of your life.
Nick: And that is a massive collateral consequence. I mean, look. People can go on to lead productive solid lives while being on a sex offender registry. Some people do it. But it is a significant obstacle. It causes significant hurdles in people’s lives.
Jessa: And there are a lot of communities that pass ordinances that restrict if people convicted of sexual offences can live in them.
Nick: It can render people, effectively, homeless.
Jessa: I’ve had clients who, based on their sex offender status, have had to sell homes that they’ve owned for 30 years because they’re close to a school or a library or a mall.
Nick: Some place they’re not allowed to be close to. I think we are probably, I think it’s likely that we’re slowly moving towards a day where there’s going to be significant reform of the sex offender registry laws in states across the country. Because I think there is recognition that is slowly growing among actors in the judicial system that this notion of sex offender registries was clearly well intentioned. Obviously. But that it has had pernicious effects that were not intended and are, in fact, undesirable. It makes, it can make people more likely to reoffend, more likely to engage in antisocial conduct. Anything that does that makes us less safe as a community.
Jessa: And also, I’m gonna lay down a little history here. Sex offender registration, sex offender lists, were never intended to be for the general public.
Nick: I know what you’re talking about.
Jessa: So when you dial it back to the day..
Nick: This is like mission creep. It started off as one thing and turned it into something else.
Jessa: It’s totally mission creep. There was a little boy who was kidnapped in Minnesota. Jacob Wetterling. And one of the things that was a problem was the fella who ultimately was found to have committed this crime, had been committing similar crimes in different counties in Minnesota for quite a period of time. Like for several years. But there was no centralized list that law enforcement could access.
Nick: And know that.
Jessa: To say, “Oh look. This guy has a sex offense that looks pretty similar to the one we’re investigating. Maybe we oughta check him out.”
Nick: “Two counties over. Not far away.”
Jessa: “Maybe we oughta compare the DNA that we collected in this case to the DNA that was on file in that case. Maybe we should see that.” which is a pretty useful tool and something that we all agree that the police should probably be able to do. Then the Megan’s Law movement was happening as Jacob’s Law was being debated and talked about and passed. And the Megan’s Law basically said “We’ll sign on to all of this with one additional consideration, which is we want to make this accessible to the general public”. And the mother of Jacob Wetterling is actually now a fairly vocal opponent of the sex offender registry.
Nick: This is what I’m talking about. There are organizations now that advocate for this kind of stuff that talk about how “Look, we need smart laws. We don’t need punitive laws that actually cause more harm than good.” I’ve had judges talk to me about this on the record in some of my cases saying, “Look. You don’t need to convince me.” I’ll launch into something about why this is gonna cause more harm than good. Maybe we’re trying to talk about a plea deal that would avoid a charge that carries with it mandatory registry or whatever. I don’t remember the exact context. But I’ve had conversations on the record with more than one judge where they say “Hold up. You don’t need to convince me. You don’t need to sell me on the notion that sex offender registries have unintended negative consequences and probably do more harm than good at this point. I’m already on board.” So that’s what I’m saying, that I think Jacob Wetterling’s mom, these national organizations that are advocating for smart, intelligent, evidence-based sex crimes laws. Judges being aware of this. I think there is a slow, slowly building recognition that sex offender registry laws are gonna need to be reformed because they are not doing what they were intended to do.
Jessa: And they’re isolating and stigmatizing a group of people that..
Nick: Look. These people are already stigmatized. But they are heightening the stigmatization to a level that is, in many cases, impeding their ability, even if they want, assuming they are reformed or are endeavoring to reform themselves, that create real obstacles to prosocial behaviour.
Jessa: Right. Because it makes it impossible to get a job. It makes it impossible to get quality housing. You can’t get a loan. You can’t, I mean.
Nick: People just won’t have anything to do with you.
Jessa: Right. People hate you.
Nick: And there’s been some interesting high level constitutional analysis litigation of the constitutionality of some of these local municipality ordinances that prohibit sex offenders from, like. There are some of these communities where 85% of the municipality is unavailable for a registered sex offender to live in.
Jessa: Right. Because of these school, mall, library, places-where-kids-are restrictions.
Nick: Yeah. They keep passing increasingly restrictive laws. The intent has to be to effectively keep sex offenders from living in these municipalities.
Jessa: Right. And so, lest you start to think “Gosh. These guys have been talking for 20 minutes about the sad tale of rapists”, let’s just run through some of the things that can land you on a sex offender registry. If you are 18 and you have sex with your 15 or 16 year old girlfriend, so you’re a senior in high school, and she’s a sophmore, you could end up on the sex offender registry. If you get caught having sex in the back seat of a car somewhere, in some states, that can land you on the sex offender registry. There are a few states that urinating in public can land you on the sex offender registry. Wisconsin is, thankfully, not one of them.
Nick: And none of us can think that that’s what anybody intended when they created a sex offender registry. Like, does anyone think that a person peeing in public is a sex offender? Not if that’s all they’re doing. You might be doing something else.
Jessa: Does a 17 year old girl taking a topless photo of herself deserve to be on the sex offender registry because she produced child pornography?
Jessa: I say no, too. And these are some of the things, so. While there are crimes that are horrific, terrible crimes, which are the sort of, you know, pedophile, huge age gap, power differential, non-assenting victim, sexual assaults, that perhaps warrant public warning. And I actually take a lot of umbrage with that.
Nick: Which part?
Jessa: I take umbrage with the fact that if you look at the federal statistics on recidivism, sex offenders are some of the lowest reoffenders out of any type of criminal behaviour. And we don’t have a registry for drug offenders, even though they’re way more likely to reoffend. We don’t have a registry for burglars or property crimes people, even though they’re more likely to reoffend.
Nick: And don’t you think the reason for that is because sex crimes are considered so horrific?
Jessa: It’s absolutely. It’s because of the stigma of sex crimes and the fascination with sex crimes. And part of that, I would suggest, is an overcorrection from a very long period in American history, where we failed to take seriously, sex crimes. We had all sorts of whack rape statutes that required the utmost resistance of the woman had to be overcome for it to be rape. Rape used to be a property crime, which is so gross. That it wasn’t a crime against the woman who got raped. It was a crime against her dad.
Nick: Or her husband. Or whoever owned her.
Jessa: Right. Whoever owned her at that time.
Nick: Which comes with these antiquated laws from the days of yore, you know. From England and, you know, all these crazy things from back then. But, two things I’m thinking of based on what you’re saying. Number one: why don’t we have Law & Order: Property Crimes Unit?
Jessa: There, well. Number one: no one will watch that.
Nick: I would watch it.
Jessa: You’d be, like, “Look at that guy take that TV. Oh my god. Is it too heavy for him to carry?”
Nick: Law & Order: PCU.
Jessa: Law & Order: Drunk and Disorderly, which is basically Taxicab Confessions.
Nick: It is. Law & Order: OWI Unit. Law & Order: Traffic Enforcement.
Jessa: Law & Order: Patronizing Prostitutes.
Nick: Cause you know whose recidivism is shit? OWI people.
Jessa: Yeah. Lots of drunk drivers drive drunk over and over and over again. And there’s no drunk driving registry. But there’s a sex offender. There’s also not, while we’re doing this, a domestic violence registry.
Nick: That would actually make, that is something that would have some basis in rationality, or some sort of inherent appeal. It’s like “Oh. Do you want to know if the guy next door to you..”
Jessa: “Kicks the shit out of his wife?” I would like to know that.
Nick I actually kind of would, too.
Jessa: If you’re giving me the choice of living next to a guy who was 19 and had sex with a 16 year old, who maybe he had a relationship with for some period of time after? Look. There’s a 5 year age gap between me and my husband. Now, we didn’t meet until I was 29 and he was 24. But at one point, I wouldn’t have legally been allowed to have sex with him. You know. That doesn’t necessarily trouble me as much as the guy who has been convicted 14 times for battering his spouse.
Nick: No, I don’t want to live next to that person. I don’t want my children around that person.
Jessa: If we’re having that conversation, we’ve really signaled, we’ve taken this one very specific area out to stigmatize.
Nick: And if we’re thinking about that logically, as well, some people are probably listening to this and being like “No no no. That can’t be the bulk of the people on the sex offender registry.” Well, look. If what we’re really afraid of when we want to publicly identify sex offenders is guys who are pedophiles, who are chronic child molesters, those guys are mostly in prison.
Jessa: There’s also that.
Nick: The worst, the people that we’re actually afraid of are by and large incarcerated. The people who might be living on your block are people who are back out in the community. And if they’re back out in the community, they’re probably back out in the community for a reason.
Jessa: Particularly because there is..
Nick: Whereas chronic domestic abusers are oftentimes not in prison and are allowed to remain in our communities.
Jessa: Over and over and over.
Nick: That’s what I’m saying.
Jessa: And there has been this movement to extra-special-double-cherry-on-top stigmatize sex offenders because now we have these sexually violent person laws, so you can be sentenced to prison. You can go serve your eight years in prison. And then the day you’re supposed to get out, you can get slapped with a civil commitment.
Nick: Quote, unquote “civil”.
Jessa: Right. Quote, unquote “civil”.
Nick: Civil as a matter of law. Doesn’t look civil in real life.
Jessa: Because it’s a locked door. It still restricts your liberty.
Nick: It’s a quote, unquote “hospital”, which, if you’ve been to a place like Sand Ridge, as you and I have been, that don’t look like any hospital that I’ve ever been to.
Jessa: Right. So you can get slapped with a civil commitment piece of paper that requires that you stand trial to determine if you can be locked up indefinitely.
Nick: It’s Minority Report.
Jessa: If you’re more likely than not to reoffend sexually, they use these actuarial tables such as the Static-99. The RRASOR has fallen out of fashion and there’s a new one. But they use these things that purport to be scientific measures of the likelihood for somebody to reoffend, except there are all sorts of factors that can’t be controlled for in those quantitative analyses. And then we use dynamic risk factors which is basically somebody’s opinion. I mean, it’s an educated person’s opinion. It’s a psychologist or psychiatrist’s opinion, but it’s still, at the end of the day, someone’s observation. So there are actually a lot of things that are pretty screwed up about the way that we take this crime out of the rest of criminal behaviour, all of which we frown upon. But this is, nobody thinks this is something to let go of. Well. No sane person.
Nick: Yeah. Some people do. But there is plenty of people we don’t need to listen to.
Jessa: Right. But no sane person thinks “Eh. Sex offences. Who cares?”
Nick: Right. Everyone agrees sex offences, we all care. Not okay. But I think, what I hope we’re constantly working on collectively as a community, as a society, is getting closer and closer and closer to dealing with these offences and these individuals in the smartest way possible. And something you referred to a minute ago when you were talking about some of this stuff feels like it’s gone too far or there is evidence that it’s gone too far, and you referred to it as an overcorrection from what I consider to be basically the entire existence of humanity, where humanity collectively did not remotely take sexual violence against women remotely seriously enough. And that was all of humanity until, like five years ago. That was just human existence. And, so some of that may be reflected in some of the sex we’ve been talking about in this podcast, and a separate issue that we can take up in a future podcast, that I think is where that concern or that debate is alive and well, like, right as we sit here, is in the world of Title IX and how universities and colleges deal with sexual violence or alleged sexual violence on campus. And I think that debate about where do we find, I don’t need to be flip about this, but the sweet spot of, where do we find the right place where we are taking dead seriously our obligation to keep members of our community safe while, at the same time, protecting people’s due process rights and not taking something too far.
Jessa: And the university disciplinary track through Title IX that Nick is talking about is a totally separate thing in criminal law, though it’s something our office handles pretty regularly, where there might be an investigation where someone isn’t charged criminally but a complaint can be brought through the university.
Nick: They could be both. But it is not uncommon for there not to be a criminal prosecution and under Title IX as it currently stands, the university really isn’t bound by that in any way, shape, or form.
Nick: And in a future episode, we can talk about why that might be appropriate because there are legal arguments, legitimate legal arguments that would suggest that that could be appropriate. But it can also lead to some real problems.
Jessa: And look. On that point, if we do a separate episode on Title IX stuff, I had to be the xenophobic prosecutor for Mr Garcia. You’re gonna have to be the person that argues that it’s appropriate to kick kids out of school.
Nick: Oh, I can do that..
Jessa: Okay. Because I don’t want to make that argument.
Nick: Maybe I will or will not chime in on what I actually believe, but I can absolutely make those arguments.
Jessa: Great. So that’ll be your job and my job will be to talk about due process, which is where I like to live, in pervert alley with due process. It’s my favorite place. So. Alright. What other, we’ve kind of run the gamut of different sex offender laws.
Nick: Well, one thing we haven’t talked about yet, I mean. We talked a little bit about sexting and how wrong that can go and how seriously in trouble kids can get.
Jessa: So in trouble. They don’t know it.
Nick: No, they don’t know it. And it’s been my observation that kids these days with smartphones, and especially with Snapchat, they take pictures all day. All day.
Jessa: Okay. Snapchat is basically designed to take pictures of things you’re not supposed to take pictures of.
Nick: Which is why they disappear.
Jessa: Right. That’s the whole gig with Snapchat, right? Is that you can take a picture, send it to your buddy, and then goes away in 24 hours and nobody can find it, and then if, months later, when defence attorneys are trying to investigate a sexual assault case, they want to go get Snapchat records. All of a sudden, we’re doing weird subpoenas to the state of California.
Nick: Weird preservation requests.
Jessa: Yeah. That you don’t have to do for basically any other thing.
Jessa: It’s such a pain in the ass to try and access these records. The same is true with Facebook. Even though your social media is really not your own and all the social media companies get to retain the ability to use your stuff, it is actually a huge hurdle to try and get social media records from the defence side.
Nick: Big time. It’s way easier for the government.
Jessa: Oh, it’s infinitely easier for the government. They just get a warrant and send it out. A warrant and a subpoena. You know. I mean.
Nick: And so, there have been cases around the country where whole swaths of kids from a high school, let’s say, all get criminally charged because a bunch of people were taking nude pics of each other and sending them, maybe a series of girlfriends and boyfriends, or boyfriends and boyfriends or girlfriends and girlfriends or whatever. And then people start sharing them or sending them to other people. And so you’ve got nude pics of people flying all over the school. In my mind, it’s like, they’re trading baseball cards.
Jessa: That’s exactly what I was gonna say. This 21st century trading of baseball cards.
Nick: Except everyone’s committing felonies.
Jessa: Serious felonies.
Nick: Like registry felonies. Now, in Wisconsin, there’s a version of the child pornography statute that if you are under 18 at the time, it can be, I mean. It’s still plenty punitive. It’s still a felony. It’s still a big deal, but it isn’t quite as severe as the full blown grown up version of possession of child pornography. But nonetheless, even if you get that baby version of possession of child pornography, what do you think having a possession of child pornography charge next to your name does to a kid’s prospects for life at age 17 or 18?
Jessa: I don’t think it makes doors open. I think that that is a door closing exercise, not a door opening exercise.
Nick: There have been some of these cases where you’re like, you go through, these people have been charged, you’re like, okay. Look. The person who’s sort of at the center of this thing, there’s really not anyone on a normative level would be, like, “You know that was wrong, what you did”. Like, there will be people recording without their sexual partner’s knowledge that they’re literally recording themselves having sex with that person and that person has not consented, or even been aware that it’s happening.
Jessa: Which is also a felony. And that’s another way to sexually violate someone. We should just call this segment “Ways we can sexually violate other people”. You’re not allowed to tape someone without permission. Hey. If somebody wants to send you a naked picture of themselves and they’re an adult, that’s cool. You’re allowed to have that. Do you know what you actually can’t do? Post it on the internet.
Nick: Right. And so we can get into that, which is the category of revenge porn laws.
Jessa: And looking at our little how we levelate our things, I think we can actually close up this episode. Tune in to episode two of tonight. Wednesday. Our segment about sex crimes, generally and we will introduce to you which case, which trial we’re gonna talk about next. We’re gonna talk about revenge porn and probably pontificate some more about sex offenders. However, before I go, I want to tell you guys about another podcast. One of the things that Nick and I have loved so much since we’ve been doing, and it’s been a month already, which is crazy.
Nick: Totally crazy.
Jessa: God. We talk so much. Just so incredibly much. But one of the things that we’ve really come to love is the true crime community and the people that participate in it. So I wanna tell you about another podcast. A friend of our podcast called Can We Cult? And here’s what, we asked them to describe themselves and here’s what they had to say: Are you terrified when you see a large group of people dressed in the exact same outfit? Are you strangely intrigued by the idea of wearing linen to appease alien overlords? My husband loves wearing linen. Do you find yourself sucked in by documentaries about cults in the 70s? Do you appreciate podcast hosts who make wild but educated speculations? If you’ve answered yes to any of these questions, check out Can We Cult? Hosted by Ellie and Megan, two cheap wine aficionados and best friends living in Portland, Oregon. Sure, these two studied sociology and criminology in college. And they may work in social services. But they’ve gotten their real knowledge about cults from documentaries, books, Reddit threads, and again, wild speculation. I love wild speculation. Every Thursday, a new episode full of heart breaking, scary, sad, and hilarious stories with a whole lot heart, is released. Check them out on Apple Podcast, Soundcloud, Stitcher, and Overcast, as well as on all social media platforms at Can We Cult? Join them. Won’t you? So check them out. I was able to, on my way back here, listen to some of their episodes, and really enjoy them.
Jessa: Yeah. I think they’re great.
Nick: And my response to the question “Can We Cult?” is yes. We can cult.
Jessa: We can occult. We can regular cult. I can’t make, I don’t know.
Nick: I can cult if I want to.
Jessa: You can leave your friends behind. Cults kind of require that. A lot of the time. So I’ve always wanted to know a ton more about cults and I haven’t had a cult defence. There was that thing with the weird child-abusing church people in Madison a few years ago. But I didn’t get one of those cases. I was super bummed.
Nick: They were culty.
Jessa: They were culty. So check them and while you’re following people on social media, come join our hilarious Facebook group. Getting Off Podcast. And follow us at Getting Off Pod on Instagram and on Twitter. And rate us on iTunes thing. The podcast thing. Tell us nice things or sort of nice things. And we will be back shortly. And that’s okay.
Nick: That is okay. That is fine.