Technology and The Horrors of Child Pornography

A recent spate of arrests in New York emphasizes the potentially dangerous connection between technology and sex crimes.  In a landmark police bust, authorities tracked down and arrested more than seventy people in the New York City area who were trading child pornography.  Among those arrested were a rabbi, police chief, nurse, architect, and nanny.  Police infiltrated chat rooms where traffickers made available images of children engaged in sex acts with each other and adults.

What is the role of technology in the arrests and distribution of these images?  While technology helped officers track down child pornography traffickers, the internet also facilitated the trading of those harmful, illegal images of children.  On line chat rooms and other social network spaces provide for the broad-spread, easy distribution of child pornography.

Importantly, the children whose images are trafficked are re-victimized each time their images are shared, bought, and sold.  The frequency at which this can occur is intensified over electronic media, opening a horrific floodgate as demonstrated in the New York arrests where thousands of obscene, pornographic images of children were collected from dozens of confiscated laptops. Clearly, solutions to this problem must necessarily emphasize examining technology’s  unwelcome dark side.

Boko Haram Kidnappings and the Victims’ Mental Health

In mid-April, Boko Haram, an extremist organization operating in the northern region of Nigeria, kidnapped nearly 300 girls from their boarding school in Borno.  Kidnappers threatened thatNigeria_Boko_Haram_Kidnapping the girls would be sold to sex trafficking rings in neighboring countries, causing international alarm.   In the weeks since that mass kidnapping, world leaders have issued collective demands for the return of the girls–and placed pressure on Nigeria’s president, Goodluck Jonathan to take aggressive action to achieve the girls’ return.  Some pundits believe hope may be around the corner, because in the last two days, Boko Haram leaders claimed that they will release some of the girls to safe houses.  Yet, it remains unclear whether this will happen. Continue reading

Beyond Roe: Reproductive Justice in A Changing World

Blogging highlights from Rutgers-Camden (conference coordinated by Professor Kimberly Mutcherson)

A few blog highlights from the Beyond Roe conference at Rutgers-Camden:

Excellent Keynote remarks presented by Byllye Avery, founder of Black Women’s Health Imperative and MacArthur Foundation Fellowship (aka Genius Award). Dr. Avery urges a close examination of the states challenging reproductive access.  She explains a link between former slave states as the new battlefront in reproductive equality…

June Carbone gives a provocative preview of her forthcoming book with Naomi Cahn: The Marriage Market

Dazon Dixon Diallo, President of Sister Love, Inc-presents new empirical data on race, youth, and reproductive decision-making and African American youths’ perspectives on abortion.

Young scholars to watch out for:

Aziza Ahmed, Assistant Professor at Northeastern School of Law presents a project on Scientific Expertise in Abortion Jurisprudence.

Lisa Kelly, SJD candidate at Harvard Law School gives an enlightening talk on Transnational abortion rights and the litigation emerging in Latin American countries.

Terrific project on the rise by Grace Howard, a PhD student at Rutgers University who presented a talk: When the Crime is Birth: “Meth Babies” and the Limits of Pure White

Racism in Transplant Denial? Or Too Few Hearts To Go Around?

Anthony Stokes, a fifteen year old kid from Decatur County, Georgia, is expected to die in a matter of months, according to his doctors at the Children’s Healthcare of Atlanta.  Maybe, they say, he will live for six months.  Who knows?  Anthony suffers from an enlarged, increasingly less functional heart.  His condition is not unusual, and a reasonably effective cure is at hand: a heart transplant. (Learn more about Anthony’s story here.)

However, Anthony has become the latest victim of a dysfunctional U.S. transplantation system, which tempts Americans with a transplant waiting list, but kicks them off if they become too sick or too old.  The problem is that there are too few organs to meet demand, and this perennial problem receives far too little attention from Congress.  Indeed, the U.S. transplantation list, coordinated by the United Network for Organ Sharing, UNOS, (a private organization that coordinates significant aspects of the U.S. transplant system) is so overcrowded that patients increasingly turn to black markets in India, China, Pakistan, South Africa, and other countries if they hope to survive.  (Learn more about that here.) Congressional hearings document Chinese prisoners dying and shortly thereafter Americans receiving organs.

Anthony’s family and some local organizations claim that racism is behind doctors refusing to place the boy on the transplant list.  Anthony is African American.  They ask, what is the harm in letting him on the list?

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Bei Bei Shuai First Degree Murder Charges Dropped

Less than an hour ago, Indianapolis prosecutor, Mr. Terry Curry agreed to drop first degree murder charges against Bei Bei Shuai in an agreement that required her to plead to a misdemeanor.  The case was a month away from trial in what would have been the first prosecution of a pregnant woman in Indiana for attempting suicide.  Ms. Shaui ate several packets of rat poison in a desperate attempt to end her life after being abandoned by her boyfriend.  After being saved by friends and doctors, prosecutors filed first degree murder charges against Shuai, because her baby died.

Bei Bei Shuai’s case highlights the turn to criminal prosecution in fetal protection cases as a terrible national phenomenon.  Shuai was spared the horrible fate experienced by poor women, many of color, across the U.S., including Regina McKnight, Paula Hale, Melissa Rowland, and others. In a forthcoming article to be published in the California Law Review, I argue that these prosecutions represent the new constitutional battlefronts as they burden pregnant women’s due process interests while also imposing the type of cruel and unusual punishment disallowed by the Eighth Amendment. I have argued in prior works found here and here that such prosecutions often involve racial profiling and create hierarchies among women’s pregnancies.  Indeed, most often the pregnant women targeted for threatening harm to their fetuses are so poor that they lack adequate legal representation, relying on overworked public defenders who make valiant efforts, but lack the economic wherewithal to  properly aid in these cases.   Shuai’s case was different in that she had Linda Pence, a valiant, private attorney, who spent over two years providing excellent pro-bono legal aid.

Bei Bei Shuai’s release from murder charges also represents another victory for Advocates for Pregnant Women, the leading organization advocating on behalf of indigent pregnant women.

Too Young For Sex, But Old Enough For The Sex Offender Registry, Part III

I conclude Part III in this series from Uganda—a nation recovering from what one doctor describes as a “genocide” from HIV and AIDS. Parts I and II can be found here and here.

As a society, do we really care that teens and preteens have sex? On the one hand we care too much—so much so that the criminal law is the central form of regulating teen sex. This form of regulation is derived from statutes that treat all sexual behavior alike, even though consent and context may drastically vary.  In Law’s Limits: Regulating Statutory Rape Law, found here, I articulate why the criminal law approach, filtered through the judiciary, leads to absurd results. These absurd results include the extralegal punishments inflicted on youth who are punished for participating in consensual sexual activity, such as lifelong registration as a sex offender. These types of consequences and outcomes are problematic because they are morally wrong and foster significant harms across a series of areas, including creating social status harms, by reifying racial and homosexual stereotypes. The criminal law approach also leads to cruel and unusual punishments in an era where sex offender registries are increasingly the norm and a condition of release from prison.  On inspection, such punishments are disproportionate and unjustified.

On the other hand, maybe we care too little about teen sexuality. The notorious Steubenville, Ohio rape case bears this out (where the rape victim suffered backlash and threats), as do the high rates of HIV, sexually transmitted diseases, and syphilis infections among teens, and teens’ relatively high use of alcohol and drugs prior to sex. Parents fail to talk to their children about sexuality when children most need to understand it: prior to commencing sexual experimentation. Empirical data shows that fathers barely speak to their daughters about sex and these omissions may impact their daughters’ sexual attitudes and behaviors. Governors and prosecutors sometimes demonstrate selective interest in teen sexuality—when it involves specific ethnic populations or the poor. This failure to care enough is manifested in the criminal law approach to shaping teen sex norms, rather than the public health where it is most justified.

So, how might we move forward? Continue reading

Too Young for Sex, But Old Enough for the Sex Offender Registry, Part II

This post is the second in a three part series on the use of criminal law to police teen sex.  The first part can be viewed here.

In recent years, thousands of judicial proceedings against children result in teens as young as thirteen being adjudicated as sexual predators and placed on sex offender registries.  The problem in the United States is that statutory rape laws create per se rule violations with respect to all sexual intercourse involving children.  My research reveals that children as young as 11 have been prosecuted as both the victim and sex offender.  In some states, even sexual touching involving consenting minors breaks the law. In other words, sex with a person under the age of majority or age of consent (depending on the specific state legislation) is always crime.  In a recently published Wisconsin Law Review article found here, I argue that such prosecutions can and often do lead to absurd results.

In Utah, which serves as a relative example, a child who commits “more than five ‘separate acts’ of sexual touching,” even without sexual penetration, could be convicted for “aggravated sexual abuse of a child.” In South Dakota, a minor can be adjudicated a delinquent and guilty of first-degree rape for one act of sexual penetration, regardless of consent if the consenting party is under thirteen.. Wisconsin’s statutory rape law reads similarly. These matters are particularly thorny in their application against children because legally a child cannot consent to sexual intercourse. In some states, including Utah, adolescent fondling constitutes sexual abuse of a child just as attempts to touch the buttocks, breasts, or “intent to arouse or gratify the sexual desire.” Even consenting children will always be deemed “victims” in states that take this approach.

According to the CDC, nearly 50% of high school teenagers have had sexual intercourse.  In fact, by the 9th grade over 30% of girls and nearly 40% of boys have had sex.  In conservative states like Mississippi and South Carolina, pre-teen boys report the highest rates of pre-teen sex (19.1% and 17.1%, respectively).   Along with reporting sexual activity, white teens report the highest rates of combining sex with alcohol.

CDC studies expose the gaps in how parents view and understand youth sexuality. An American Broadcasting Company (ABC) News survey investigating parental and teens attitudes on sex places has some startling findings.  Consider this: while nearly ninety percent of parents surveyed confirmed that they spoke with their teens about sex, only forty nine percent of teens believed such conversations took place.

However, adolescent sexual activity raises questions for the law.  Should teens be prosecuted for committing the crime of rape if they engage in consensual sexual intercourse with children of their own or near age?  Is it ethical to prosecute children similarly to adults for having sex with other children?  More to come in Part III.

 

 

Too Young for Sex, But Old Enough for the Sex Offender Registry, Part I

This post is the first in a three part series on the use of criminal law to police teen sex.

A recent study by Human Rights Watch suggests that statutory rape law is a poor tool for reducing teen sexuality.  Their study and my forthcoming article, Law’s Limits: Regulating Statutory Rape Law, published by the Wisconsin Law Review concur on this point.  Consider an unfortunate case that underscores the importance of revisiting statutory rape law prosecutions in the United States.  In 2011, J.L. was adjudicated a delinquent, charged with first‑degree rape, and convicted under the South Dakota statutory rape statute. According to the South Dakota Supreme Court, J.L., a fourteen-year-old, “engaged in consensual sexual intercourse with his girlfriend, who was twelve” and only fifteen months his junior.  Despite both adolescents consenting to sex in this case, in the state of South Dakota, J.L.’s conviction will result in legal and extralegal penalties far more severe than that of an adult rapist who commits a sexually violent act against a college peer, a random woman, or during the commission of another crime.  This is because J.L.’s “victim” was under the age of thirteen.

In a provocative commentary, buried in a footnote, the South Dakota Supreme Court references the harsh penalties J.L. and other minors who engage in consensual sex with minors will encounter. The court explains, “[i]t appears that J.L. will be required to register as a sex offender for life.” In other words, J.L.’s “mark” as a sexual predator burdens him with the same potent and socially stigmatic punishment as that of a convicted, middle-aged pedophile who rapes a minor.  This prosecution and others similar point to the absurd results in many statutory rape cases involving teens who have consensual sex with teens.

As I note in the forthcoming article, had J.L.’s girlfriend been an adult and a nonconsensual sexual act occurred, he could qualify for release from the sex offender registry list after only ten years, rather than the life-term that now serves as his punishment.  In South Dakota, consensual sex between minors may result in a more severe punishment than nonconsensual sexual encounters either between adults or between a teenage male and an adult woman.   But, are such outcomes just?  Do they reflect broad social consensus?  Or do such prosecutions lead to absurd, untenable results?

In the coming week, my blog posts will address these and other relevant questions.

PERINATAL HOSPICE: NEW THEORIES ABOUT WHAT CHOICE MEANS

Guest Blogger: Allison M. Whelan*

So much of the political and legal debate about reproductive choice centers on abortion.  In doing so, these debates obscure so many other reproductive choices women must make.  And the choices are not easy—and the stakes are even greater in an era where any prenatal missteps might lead to aggressive state action, including criminal sanctions.  There are thorny situations that confront medicine and ethics.  For example, how should we think about families that choose to carry terminal fetuses to delivery only for the fetus to expire shortly after birth?  Should such pregnancies be terminated early given that doctors and even the intended parents know the fetus will not survive?  Where does the law stand on such issues?  What is morally permissible?

Thousands of women and families face lethal prenatal diagnoses and perinatal loss every year. In 2006, there were 25,972 reported fetal deaths at twenty weeks or later.  An additional 19,041 live-born infants died at less than twenty-eight days.  Birth defects such as congenital malformations and chromosomal abnormalities are the leading cause of fetal-infant deaths. Lethal anomalies (i.e., Trisomy 13; anencephaly; hypoplastic left heart syndrome) are a subset of birth defects characterized by a radically shortened lifespan. In 2005, there were 6,925 fetal and infant deaths attributable to lethal anomalies in the U.S.

Advancements in prenatal diagnosis coinciding with improved access to legal abortions create medical options for patients, but also spur challenging ethical questions.  For example, therapeutic abortions have become the “management of choice” for many women whose fetuses experience a “lethal condition”.  However, termination may not be the preferred choice for all women and families.  The concept of perinatal hospice fills this void and offers women valid options after a terminal fetal diagnosis. Although the concept is still relatively novel and unknown in much of the health profession and lay population, the development of perinatal hospice programs is growing.

Perinatal hospice is worth taking seriously.  For example, perinatal hospice programs are multidisciplinary and their services begin at the time of diagnosis (rather than death), in recognition of “anticipatory grief,” a term describing the grieving process that begins prior to death when a death is probable or imminent. Those who have used these services say that perinatal hospice provides a supportive environment for parents to grieve and appreciate any time they have with their infant.  Further, they say It affirms their role as parents and acknowledges that their loss is “as real” as the loss of any other loved one.  Maybe perinatal hospice is a safe place where parents can “be parents.”  It’s worth thinking about.

*Allison Whelan is a graduate student, University of Minnesota School of Law and Center for Bioethics

Family, Privacy, Secrets, & The Law

The Family, Privacy, Secrets, & The Law Roundtable (March 7-8. 2013) was a great success.  Kudos to the brilliant presenters and commentators who came together for this important, groundbreaking session, including Lori Andrews, Glenn Cohen, June Carbone, Laura Rosenbury, Camille Gear Rich, Martha Field, Deborah Epstein, Martha Ertman, Gaia Bernstein, Taunya Banks, Naomi Cahn, Michael Pinard, Karen Czapanskiy, and Eleanor Brown.  Thanks to all who attended and contributed to this excellent meeting.    Coverage can be found here and here.

Family, Privacy, Secrets & The Law

Join us for an important meeting:

Roundtable: Family, Privacy, Secrets & the Law  March 7-8, 2013

March 7-8, 2013
University of Maryland
Francis King Carey School of Law
500 West Baltimore Street
Baltimore, MD 21201

March 7, 5 p.m. - Book Reading and signing by Jonathan Odell, author of The Healing

March 8, 9 a.m. – 4 p.m. – Roundtable discussions

Eventbrite - Family, Privacy, Secrets & The Law Roundtable

Family, Privacy, Secrets & the Law roundtable engages the intersections of medicine, criminal law, family law, and constitutional law. The conference faculty will chart contemporary issues that span genetic privacy, disclosure of parental identity in assisted reproduction cases and DNA conscription to domestic violence and child sexual abuse.

There are times in which the law protects secrets, such as between a lawyer and client, doctor and patient, or clergy and congregant.  Yet, there are times when the law demands that secret-keepers reveal their confidences such as the increasing demand on doctors to disclose confidential medical information on pregnant women to law enforcement. How should we understand the contours and boundaries of these dynamics within the law?  On one hand, law tends to address secrets through the lens of legal duties to protect the vulnerable via its regulations governing abuse and neglect. On the other hand, this set of laws captures only a small percentage of secrets held by family members and other trusted “secret keepers” (doctors, clergy, extended family, neighbors) who, for a variety of reasons elect not to inform the state.

This roundtable interrogates states’ obligations to protect the vulnerable and at what cost. It considers the ways in which the law promises/owes protection and the success, failure or harms it brings about when endeavoring to intervene and offer protection. Against that backdrop, the law also has the obligation to honor individual and family autonomy and privacy.

Schedule

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Accomodating Racism in Hospitals

The Hurley Medical Center in Flint, Michigan is being sued for accommodating the request made by a parent that no African Americans tend to his newborn. The father, who allegedly sported a swastika tattoo, alerted a nurse that blacks were not to care for his baby.

To comply with the father’s request, nurse Tonya Battle, who was caring for the child in the Neonatal Intensive Care Unit (NICU) of the hospital was removed or reassigned from tending to the child.  A news video reporting on the incident can be found here. Battle is now suing the hospital.  According to her lawsuit, hospital staff complied with the father’s demand, posting a note next to the baby’s name on the assignment clipboard: “No African American nurse to take care of baby.”

Nurse Battle’s lawsuit claims that she was deeply shocked and offended–she’s worked for at the hospital for 25 years.  Professor Kimani Paul-Emile writes that such requests–based on race or ethnicity–are not unusual at U.S. hospitals and medical clinics.  See her article, Patients’ Racial Preferences and the Medical Culture of Accommodation, which is published in the U.C.L.A. Law Review here.  However, such instances of using racial preferences in the medical setting raise questions about the permissibility of such practices–not only as a legal matter, but also as matters of health and bioethics.  Some patients believe that the quality of their care is enhanced when provided by someone represented by their ethnic group; some even fear that their healthcare is compromised when delivered by medical staff outside of their ethnic group.  Should the law tolerate these forms of discrimination?  What about if racial perceptions have a positive placebo effect?  Post a comment.

Prosecuting Rape Victims, What Next?

Representative Cathrynn Brown (Arizona)

In the wake of an election season peppered with references to rape by legislators vying for reelection or elevation to more prominent political positions: Representative Todd Akin’s woefully unscientific claim that “legitimate” rapes rarely result in pregnancy because women can “shut that whole thing down” or Richard Mourdock, Indiana state treasurer, reminding voters that when pregnancies result from rape “that it is something God intended to happen,” the deeply political intersections of criminal and health law became more visible.  Representative Joe Walsh (Ill), for example, claimed that “with modern technology and science, you can’t find one instance” where a woman’s life can be saved with an abortion.   Problematically, such comments to unwitting constituents parade as fact and stand contrary to vetted medical studies.   For example, a recent study found that “women were about 14 times more likely to die during or after giving birth to a live baby than to die from complications of an abortion.” An abstract of the study can be found here.

Months ago, I wrote that it would be a mistake to isolate these politically-charged comments to republicans or even male legislators; on inspection, recent personhood amendments and the passage of fetal protection laws expose bipartisan collaboration on laws that may be unconstitutional, undermine women’s reproductive health, and prioritize criminal law interventions over healthcare and rehabilitation. More of that work can be found here, here, and here.

Most recently, Representative Cathrynn Brown of New Mexico stepped into the political fray on rape, exposing once more the ways in which women’s reproduction can become hostage to political pandering.  Last week, Brown proposed House Bill 206, a law that would criminally punish rape victims who seek abortions.  According to Brown, obtaining an abortion after sexual victimization amounts to “tampering with evidence.” Rape victims could face felony charges and up to three years in prison for violating the law.

Likely, Brown’s rape bill will not gain sufficient political support for passage.  Nevertheless, recent political efforts to redefine rape, blame victims, and use the criminal law as a sword to regulate victims’ responses to rape deserve serious scrutiny and sustained critical engagement.

Gun Violence: A Public Health Concern?

Posted from Amsterdam

I was in India when the tragic news hit; 26 people dead–20 of them children in a massacre at Sandy Hook Elementary School in Newtown, Connecticut on December 14, 2012.   In India, NGOs struggle with ending violence against women and children. Acid tossed in the faces of women by scorned boyfriends is not uncommon nor the increasing, random acts of slitting women’s throats on trains.  Sensational it may seem to us; but very real for women in Mumbai and Bihar.  In fact, the day before learning of the tragedy in Connecticut, Delhi officials announced the hiring of thousands of guards to deploy at 548 elementary schools in South Delhi amid reports of rapes and molestations of little girls who are followed, harassed, and in too many cases harmed on their way home after leaving school.  The government’s response comes on the heels of parents threatening to remove their daughters from school.

In that country and others, broad scale violence is understood as more than a national problem; it is a social and public health problem. In cases of sexual violence and the externalities that result, including sexually transmitted diseases and pregnancies, the public health component may be more visible to those of us in the West.  However, the public health indicators extend physical health problems; violence causes emotional and psychological trauma.  The mental health component of public health must be better understood.  Americans who live in gang infested communities, where violence seems almost endless and difficult to escape, understand this all too well as their kids experience anxieties closer to post traumatic stress disorder as part of their daily lives.

The Newtown shootings offer a moment for reflection on the lives lost and also our nation’s first principles and commitments.  Perhaps this will be a time to consider gun control beyond a very divided constitutional law debate to also understand its public health dimensions.  Who benefits from current policies?  Who are those harmed?  Physical wounds do heal, but the mental health traumas, grief, and anxieties often take a lifetime to manage and overcome.

Third World Reproductive Health Outcomes

The most sophisticated medical technologies are available in the United States.  The luxury afforded elite health care consumers is best captured by “executive health care” and “personalized” medicines.  Given the tailored health care afforded top-tier health care consumers, consciously or unconsciously those at the other end of the spectrum might be overlooked.

For example, the Centers for Disease Control and Prevention issued a report this year that places some US states in the range of Third World countries for health outcomes with mothers and babies.   The report,  Infant Mortality Statistics From the 2008 Period Linked Birth/Infant Death Data Set, exposes a sad reality; race disparities persist in medicine.   The neonatal mortality rate of African Americans is about 2.5 times that of whites.  What’s more—class matters.  But here’s the interesting part.  Class matters at both ends of the scale.

The report exposes how Mississippi, the nation’s poorest state, leads the nation in babies that will die before reaching their first birthday.   According data collected by CNN, “for every 1,000 Mississippi babies born in 2011, 9.4 died before their first birthday.”  One reporter found that such data “makes Mississippi’s infant mortality rate more comparable to countries such as Costa Rica (9.2), Sri Lanka (9.5) and Botswana (10.5) than the United States (6.0).”  The common answer to the challenges of infant mortality looks toward poverty—and in part such analysis is right.  However, wealth matters too and sophisticated reproductive choices can lead to dangerous outcomes.  One of the leading causes of infant mortality is womb-crowding caused by multiple gestations, which has dramatically increased as a byproduct of assisted reproductive technologies.  Those who can afford these sophisticated technologies are usually upper-income individuals, who can afford the multiple rounds of treatments, which are usually required before a pregnancy results.  In fact, ART related births are associated with the 100-fold increase in higher order births in the United States.  Low birth-weight, one of the leading causes of infant distress, is a common feature of multiple births—as are pre-term deliveries.  As we think about solutions to these challenge public health concerns, it will be important to look at both ends of the socio-economic scale.

Taking Allegations of Child Abuse Seriously: Former Penn State President Spanier Charged

Penn State’s former president, Graham Spanier, is the latest person to be charged in the fallout involving Jerry Sandusky’s sexual abuse of boys on the Penn State campus.  A year ago, I blogged about Spanier’s curiously timed defense of his former staff members following the horrific allegations involving the former, popular football coach.

Jerry Sandusky’s crimes are deplorable. He was convicted of molesting boys from a charity he helped to found (Second Mile) and will serve 30-60 years in prison; he will likely die there.  Yet no less problematic were Spanier’s statements immediately following the release of the grand jury’s presentment.  Last year, the statement released by Spanier could only be described as cavalier and irresponsible.  Spanier claimed that the perjury charges against his former athletic director, Timothy Curley, and Gary Schultz, his senior vice president for finance and business, were “groundless,” and that he has “complete confidence in how they… handled the allegations” against Sandusky.  Stunning.

Remember the grand jury report?  Schultz said that the allegations were “not that serious” and that he and his colleague “had no indication that a crime had occurred.”  What we know now from the Freeh Report is that there were emails between Spanier, Curley, and Schultz about allegations of Sandusky’s showers with boys in the Penn State football locker room. Spanier claims that there may have been emails that he received, but he can’t remember them.  He told Jeffrey Toobin in a New Yorker article: “I was apparently copied on two emails…I didn’t reply to them.”  A few years later, Michael McQuery (a former graduate student) reported witnessing Sandusky sexually abusing a child in the shower; he also testified before the grand jury.

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The Absurd Consequences of Statutory Rape Law

Across the country, children under the age of fourteen are being convicted of rape for engaging in consensual sex with children of similar age.  In Utah, a child who commits “more than five ‘separate acts’ of sexual touching,” can be prosecuted for “aggravated sexual abuse of a child.” In South Dakota, a minor can be adjudicated a delinquent and guilty of first degree rape for one act of sexual penetration, regardless of consent.  Wisconsin’s law reads similarly.  To be clear, I am not referring to the Romeo and Juliet cases (the male is 18 and the girl is 16).  No, I’m speaking of children as young as eleven.  These adolescent violators now end up on sex offender registries—some for life.  In some states, including Utah, adolescent fondling is considered sexual abuse of a child as are: attempts to touch the buttocks, breasts, or “intent to arouse or gratify the sexual desire…”  Even consenting children will always be deemed “victims” in states that take this approach.

In 2011, J.L. was adjudicated a delinquent, charged with first-degree rape, and convicted under the South Dakota statutory rape statute.  J.L. had no prior convictions, nor other violations of the law that might suggest a propensity for crime, violence, or danger to the community.  Indeed, the first degree rape conviction did not stem from a violent, coercive sexual encounter with an adolescent, rape of an adult woman, or from forced sex with a child or infant.  Rather, according to the South Dakota Supreme Court, J.L., who was fourteen, “engaged in consensual sexual intercourse with his girlfriend [], who was twelve,” and only fifteen months his junior.  Ironically, in the state of South Dakota, J.L.’s conviction will result in legal and extra-legal penalties far more severe than that of an adult rapist who commits a sexually violent act against a college peer, a random woman, or during the commission of another crime.

For all the recent controversy about rape, its legal and political definitions, politicians have ignored the uneven, punitive punishments resulting from statutory rape laws’ harsh application against minors who fornicate with minors.  Indeed, no coherent framework has been offered by politicians that respond pragmatically to the empirical realities of adolescent sexuality.  Neither federal nor state legislatures offer a coherent, well articulated approach to militate against the harshest criminal punishments demanded by statutory rape provisions and sex offender registries.

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Reproductive Politics

In recent months, women’s reproduction has been in the spotlight.  A few weeks ago, the Republican Party adopted an anti-abortion platform calling for a constitutional amendment outlawing abortion and making no exception for victims in cases of incest, rape, or to save the woman’s life.  Ironically, some of the very same party leaders responsible for drafting the amendment issued demands for the Missouri Congressman, Todd Akin, to resign or step aside in a hotly contested Senate race after he made controversial claims that “legitimate” rapes rarely result in pregnancies.

As the gender war plays out in high profile ways, we should be aware that abortion politics is not the only area in which women’s reproductive rights are closely scrutinized and under threat of political attack.  Relatively little attention has focused on the pernicious on-the-ground forms of criminal policing targeted at pregnant women across America.

Since the late 1980s, state legislatures have enacted criminal feticide laws that now ensnare women for a broad range of activities, including falling down steps, suffering drug addiction, refusing cesarean sections, or attempting suicide. For example, in 2010 Utah Governor Gary Herbert signed into law the “Criminal Homicide and Abortion Revisions Act,” which specifically applies to miscarriages and other fetal harms that result from “knowing acts” committed by women.  A prior version of the bill drafted by state legislator Carl Wimmer authorized life imprisonment for pregnant women who engage in reckless behavior during pregnancy that could result in miscarriage and stillbirth.  Arkansas, Florida, Minnesota, and some other states define child abuse as intentional or neglectful harm to the fetus.

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The Body Snatchers: Human Recycling in The Global Age

For all the attention by legal scholars, doctors, and politicians to the global organ shortage—and particularly the crisis in the United States, relatively little is said about tissue demand and that supply industry.  Well known are the horrific stories involving black markets specializing in organs like kidneys and livers.  The troubling stories of Indian women, Pakistani men, and Brazilian boys pillaged for parts and left suffering with grotesque scars, owing debts, and in medical need are chronicled by a growing chorus of scholars (see here, here, and here).  Even those of us who support incentives to encourage organ donation strongly oppose human rights abuses paraded as free markets.  What scholars continually overlook, however, are the surreptitious, global tissue trades that effect more people and have the potential to cause greater harm, such as diseased tissues, bones, and other body parts entering the stream of US commerce and transplantation.

Several years ago, I presaged some of these problems and wrote about these issues; one of the articles can be found here.  More recently, an international consortium of journalist have come on board with an eye-opening special report, revealing black markets in Europe for human tissues and bones.  Their story begins in the Ukraine, where earlier this year security guards discovered body parts and skin stuffed into coolers, and envelopes filled with cash–transported on a “grimy white minibus.”  Authorities stumbled onto this body part heist thinking that a mass-murder had been uncovered. To their surprise, the bus and its contents were headed off to Germany before shipment of the parcels to Korea, the US and other countries.

On its own, tissue transplantation makes as much sense as organ transplantation, because they help to improve patients’ quality of life and in some instances may be vital to saving lives, such as heart valve transplants.  The problem is that the dark-side of this industry operates nefariously.  Sometimes this includes pillaging parts from cadavers dead from communicable diseases such as HIV and hepatitis or acquiring tissues through illegal means, or mislabeling parts—claiming that body parts are from Germany, when in fact they are from developing countries.  Often companies that trade on stock exchanges are linked to the darker side.  For example, investigators discovered that a US business, RTI, located in Florida is linked to the Ukraine discovery.  As Dr. Martin Zizi remarked to reporters, “once a [body part] is in the European Union, it can be shipped to the U.S. with few questions asked…They assume you’ve done the quality check, [but] we are more careful with fruit and vegetables than with body parts.”

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