Sex Offender Registry

November 1996 [Articles]

Sex Offender Registry is offensive

Hundreds of gays convicted of having sex with other men have to register with their local police
by John Ward

Effective October 1, 1996, sex offenders who reside in Massachusetts and who are not in jail are required to go their local police station and register. Failure to do so is a crime punishable by imprisonment. Your reactions to this might be, "Well, that sounds a bit Orwellian, but we have to do something about the sexual predators who are living undetected in our midst."
It's not quite that simple. Besides being a dreadful measure that will do little or nothing to make anyone safer, the law has serious, and probably unintended consequences for a large number of gay and bisexual men who would never dream of having anything other than consensual sex with other adults. Here is why. Under the new law, a sex offender is defined as anyone who has been convicted of certain specified crimes any time after January 1, 1981. This includes "Open and Gross Lewdness" and indecent assault and battery. The intent probably was to snare people who have been convicted of exposing their genitals to children and to persons who perpetrate forcible sexual attacks. However, these same statutes have been used over the years to prosecute adult males who have consensual sex with other adult men in the woods, as well as those who appear to linger too long at the urinals at men's rooms, such as Back Bay Stations, and those who are entrapped by undercover police officers who engage them in conversations and then arrest them if the conversation leads to physical contact. By the most conservative estimate, there are hundreds of men who have pleaded guilty to these offenses to save themselves embarrassment or because they did not think they could get a fair trial, even though the police reports used to convict them often included outright lies. Under the registration statute, which is now in effect, these men, if they were convicted after 1981, now have to register as sex offenders, even though they were convicted of victimless crimes, or face further prosecution. Once one has registered as a sex offender, virtually anyone over the age of 18 can go to the police station and be informed whether any named individual is a sex offender or be provided with a list of all sex offenders who live within a mile of any specific address.
Gay and Lesbian Advocates and Defenders (GLAD) has brought a law suit on behalf of a man who was entrapped in the woods by an attractive young plainclothed officer who engaged in "suggestive" conversation with him, allowed the man to touch him, and then arrested him for indecent assault. The man comes from a small community, and, when he came to see us, was literally suicidal over the effect that exposure would have on him, his wife, his children, and grandchildren.
Whatever the result of GLAD's suit, there is no doubt that now is the time for us to take an honest look at how we pull together -- or don't -- as a community around the sometimes uncomfortable reality that sexual is part of homosexual, bisexual and transsexual as much as it is part of heterosexual. In the late 1970s, when GLAD was founded, two events were catalysts for the men and women who coalesced to form one of the nation's first public interest law firms addressing lesbian and gay issues. One was a "hotline" created by the Suffolk County District Attorney to receive calls about "suspicious activity involving men and boys." The other was a series of arrests of men accused of having sex or exposing themselves in the Boston Public Library. The community, from Fag Rag to Dignity, was able to put aside its strongly held views about inter-generational sex and "public" sex to say, loudly, clearly, and powerfully: "We will not permit the authorities to exploit our vulnerability and the marginal status of all same-sex sexuality to justify witch hunts, police perjury, and blatant civil rights violations. We do not claim "special rights" but we do claim the right to the same presumption of innocence, to the same benefit of the doubt, that heterosexual citizens take for granted." Because we spoke with one voice, the hot line was disbanded and the arrests at the Library ended.
That was then. Now, the MBTA police regularly make false arrests at the Back Bay Station and charge the offenders with a registrable sex offense, and no one says a word. The District Attorney, elected with our votes, refuses to demand that these cases, where there is actually conduct offensive to the public, be treated as petty offenses rather than felonies. The judges of the Boston Municipal Court, whose personnel includes a substantial lesbian and gay presence, do not simply dismiss these cases outright for first offenders, as happens in other courts in the state. The "leaders" of the community are silent or embarrassed or, without any effort to learn the real facts, simply dismiss the offenders as beyond the pale.
What happens in Boston around the MBTA arrests is repeated throughout the state. Men whose conduct is probably not even criminal because it takes place in secluded, wooded areas and is thus private in the eyes of the law are arrested for committing felonies. They very often plead guilty, even though they are not guilty, because they are isolated and fear exposure and because there is no visible community support for them. Now many of these men will be branded as sex offenders for the next 20 years. A criminal justice system that punishes too harshly is an unjust system that deserves to be condemned.
What can we do? The immediate, and I believe effective, first step is to put organized pressure on police, prosecutors, legislators, and judges, to do their job and end the civil rights abuses that are regularly perpetrated on men who have sex with men. Experience teaches that such speaking out works. We should also repudiate the so-called spokespersons for our community who collude in these abuses by not speaking out against the injustice of the treatment that is meted out to men who are arrested under these circumstances.
Equally important, although more difficult, is for all of us to begin an honest, courageous discussion, based on the reality of our sexual lives as they are and not as some would wish them to be. Let gay and bisexual men talk about the fact that many of us, or our friends, have had sex in places other than bedrooms, and that sometimes we like it. Even as we acknowledge the vast extent of sexual abuse that occurs in our broader, not just homosexual, culture, let us acknowledge that, as teenagers, some of us sought out older partners, and that sometimes it was good. Let us examine, critically and open-mindedly, how our lived experience fits with the "received wisdom" of the dominant culture. From our soul searching and discussion, let us fashion a response to the larger world that is authentically our own, and that does not scapegoat and isolate those among us who find themselves at the margins. Let us remind ourselves, perhaps at a deeper level, that, regardless of what they say or what we have been taught to believe, we are not perverts or predators. We can trust ourselves and our sexual instincts, we really can. Most of us want a better, non abusive, sexually safer and saner community for everyone, and we work honestly at living in a way that supports that desire. The truth is that the world we inhabit is, overall, much better for our presence, including our sexual presence. Let that knowledge animate our response to the Sex Offender Registration Law and to the hysteria and confusion that gave impetus to such a law.

John Ward is a Boston-based attorney who represented the Gay, Lesbian and Bisexual Irish Group of Boston in their bid to be admitted to the South Boston St. Patrick's Day Parade.