In Print: Volume 89: Number 2
Sex Offenders Are Different: Extending Graham To Categorically Protect the Less Culpable
By Eric J. Buske
89 Wash. U. L. Rev. 417 (2012)
(PDF)
Phillip Alpert was seventeen years old when his then-sixteen-year-old girlfriend sent him nude photos. A year later at age eighteen, during a breakup, Alpert made an error in judgment. He went online and forwarded the pictures to his girlfriend’s email contact list. He was arrested and charged with seventy-two offenses, including lewd and lascivious battery, possesssion of child pornography, and distribution of child pornography. He pled guilty and is now a registered sex offender. Alpert cannot live near schools or playgrounds and was expelled from school. Barring a change in current law, he will be removed from the sex offender registry when he turns forty-three.
John Doe, on the other hand, has a long history of sexual crimes, typically involving children. He has multiple convictions for molestation, attempted molestation, and exhibitionism. Doe was banned from entering the Lafayette, Louisiana, public parks after a citizen complained that he was cruising parks and watching children. Doe readily admitted that he went to the park to watch children, that he was having sexual urges toward them, and that he thought about exposing himself to them. Doe’s psychiatrist testified that Doe had no control over his sexual thoughts and that he would always have inappropriate urges for sexual contact with children. She opined that the park ban helped him to control his urges, but conceded that it was no guarantee he would not reoffend.
These two stories represent two extremes of sex offenders. While Alpert clearly committed a crime and deserved to be punished, he has no other history of sexual violence or pedophilia. Alpert was a minor himself when he received the pictures, and had just turned eighteen when he sent them out. He was motivated by anger after his breakup, not a desire for sex or violence. Doe is a pedophile, and cannot control his thoughts toward children. He readily admits his urges, and his psychiatrist testified that he should be kept away from children. Despite these differences, Alpert and Doe are both registered sex offenders. And, as registered sex offenders, Alpert and Doe would be subject to the same residency restrictions in some states.
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