Thursday, August 20, 2015

The Jared Fogle (Subway Spokesman) Sex Abuse Case, Two Articles Worth Reading

There are a ton of articles on the Subway spokesman Jared Fogle’s plea from yesterday, most are condemning him some are asking why. 

I’m not going to get in the debate of his specific case or his plea deal. I am not taking a stand, I am not defending him.  

What I am going to do is post two articles (see below) that make very good sense and are based on facts and avoid the hate, the vengeance, the propaganda of sexual danger being everywhere or the glee that a celebrity has fallen and he has lost his wealth, family and freedom. 

You can read these two articles and come to your own conclusion. 

Mary Devoy

1- The Jared Fogle case: Why we understand so little about child sex abuse, August 20, 2015
By Sarah Kaplan

Reading the news that former Subway pitchman Jared Fogle will plead guilty to possessing hundreds of pornographic images of children and having sex with underage girls, it is hard not to be horrified.

Indeed, the people investigating Fogle’s case could barely contain their outrage. 

“This is about using wealth, status and secrecy to illegally exploit children,” U.S. Attorney Josh Minkler said at a news conference announcing the plea deal. 

“I cannot think of anything more repugnant than sexually victimizing a child,” Indiana State Police Superintendent Doug Carter later added. “Any and all resources have been and will be committed to seeking out who you are, no matter where you live or who you are.” 

A man with fortune, fame and a heartwarming story, who had established a foundation in his own name to help children combat obesity, was seeking out sex with children — “the younger the girl the better,” he wrote, according to court documents. 

In front of the federal courthouse in Indianapolis, a large crowd gathered Wednesday to gawk at the former TV personality. They taunted and jeered, hurled insults, voiced their disgust in the bluntest terms. 

One person wanted to know, according to the Indianapolis Star, “Why’d you do that?”

It’s nearly impossible to comprehend what would drive Fogle to do what his lawyer acknowledges he did. Human sexuality is already complicated, and the desire to have sex with a child is considered so shocking, so perverse, that we aren’t inclined to try and understand it. 

However justified, experts say, the righteous revulsion we feel when we hear about crimes like those alleged against Fogle is making it harder to explain them and prevent them from happening. 

The science of sexual disorders, termed paraphilias, is far less developed than other areas of psychiatry, and there are few resources for treating potential abusers. There’s almost no way to identify child abusers before they commit a crime, at which point it’s already too late. 

Meanwhile, penalties for sex crimes against children have gotten harsher and harsher — often in response to horrifying stories of violence and abuse. The federal mandatory minimum sentence for a sex offense by an adult involving a child under 16 is 30 years. 

“Right now, our society is more equipped to look at it as a moral problem than a medical or scientific problem,” psychiatrist Fred Berlin said. “But there is a biological basis for these cravings … and society is just giving lip service to that side of it.” 

He added, “Nobody chooses to be attracted to children.” 

Berlin is the director of the Sexual Behaviors Consultation Unit at Johns Hopkins University, where he works with sex offenders, among other patients. He says that there’s a lot we still don’t know about the role that hormones, the brain and environment play in sexual attraction. 

Although the federal government began to prosecute far more sex offenders after the advent of the Internet — and subsequent availability of illegal child pornography — made it much easier to track down likely child abusers, research into factors that contribute to child sexual abuse has lagged behind. Scientists are only just beginning to use neuroimaging to identify what parts of the brain are responsible for sexual cravings, and clinical studies of child sex abusers are often hard to come by. Some of the most famous studies in the field — like a 2009 report by psychologists with the Federal Bureau of Prisons that found a connection between child pornography possession and the molestation of minors — are disputed because they focus on small sample sizes of imprisoned offenders. 

And because there’s so much stigma associated with the issue, there are not enough pedophiles willing to self-report to figure out how many people feel this attraction but never commit an offense. Many states also have mandatory reporting laws that require therapists to report patients who discuss sexual fantasies or cravings involving children — in California, the law is so strict that hard proof is not required to make a report. The regulations are designed to protect children, who are typically unlikely to report abuse themselves. But critics say that they prevent potential abusers from speaking about their cravings before they commit a crime. 

He added that it’s difficult to find researchers who are willing to devote themselves to studying these kinds of sexual disorders, and even harder to find funding for such research. 

“We have a society that sometimes finds it difficult to deal with these issues of sex and so on, and that has led to us having less support for the kinds of research that would actually be very helpful,” he told The Washington Post. 

What we do know suggests that pedophilia stems largely from the brain. According to psychologist James Cantor, a former editor of the journal Sexual Abuse and an expert on paraphilias, pedophiles have less white matter — the “cables” of cells that transmit signals across the brain — than the general population. 

“There doesn’t seem to be a pedophilia center in the brain,” he told Gawker in 2012. “Instead, there’s either not enough of this cabling, not the correct kind of cabling, or it’s wiring the wrong areas together, so instead of the brain evoking protective or parental instincts when these people see children, it’s instead evoking sexual instincts. There’s almost literally a crossed wiring.” 

Other studies have suggested that pedophilia is related to problems in the frontal or temporal lobes — areas of the brain involved with impulse control and sex. In one well-known case, a man became addicted to child pornography after undergoing a temporal lobectomy to treat his epilepsy. 

“I still don’t understand it,” the man, identified as Kevin, told the podcast Radiolab. “It was me, but it was me with a complete lack of neurological control.”

Cantor, Berlin and others are quick to point out that not every pedophile becomes a sex offender. Berlin believes that the majority of people who are attracted to children don’t act on their desire. Unlike many European countries, the United States has few voluntary therapeutic programs for people with pedophilia, though support groups like “Virtuous Pedophiles” work to help people resist their attractions. 

Likewise, not every sex offender is a pedophile. Berlin said that some child pornography downloaders consider themselves “collectors,” like people who collect stamps. They are not so much turned on by the images as obsessed with them. And some adults who molest children are attracted to the sense of power, or violence, or the ability to instill fear in another, rather than fact of their victim’s age. 

Civil commitment — a procedure initially set up to protect inmates with mental illness who are deemed unfit to be released from prison — remains controversial. The policy is predicated on the logic that civil commitment prevents pedophiles from abusing more children. When it was challenged in the Supreme Court in 2010, the court ruled in favor of civil commitment. 

“If a federal prisoner is infected with a communicable disease that threatens others,” read the majority decision, “surely it would be ‘necessary and proper’ . . . to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others.” 

The largest study of sex offenders conducted by the Bureau of Justice Statistics found that roughly 5.3 percent of those imprisoned for a sex crime are re-arrested. 

The federal mandatory minimum sentences for sex crimes against children are strict: five years for downloading pornography, 15 years for producing it, 30 years for sex with a victim who is under 16 and at least four years younger than the perpetrator. 

According to Hamilton, judges disagree with these federal guidelines more often than those for any other crime.

It’s not difficult to see why the penalties for child pornography and sex abuse are so high. The idea of a child being exploited by adults is upsetting, and the testimony given by victims before Congress and at advocacy events is even more so. The collective social impulse in recent years has been toward harsher condemnation of sex offenders, not less (consider the movement against sexual assault on college campuses, the outrage about the sexual assault allegations against Bill Cosby). There are few activist groups advocating for reduction of federal mandatory minimum sentences for child abusers, as there are for drug offenders. 

When the U.S. Sentencing Commission considered reducing the recommended sentences for sex offenses against children, the proposal was swiftly shot down in Congress. 

“What politician thinks that he or she could be re-elected if they sponsored a bill to undercut sentences for sex offenses against children?” Hamilton said.  

The exploitation of a child is horrifying and saddening, a collective embarrassment for society, Hamilton noted. It implies that we cannot protect the thing that is most precious to us. And we have an understandable impulse to punish those who commit such crimes. 

But many psychologists say that the emphasis on imprisonment rather than rehabilitation doesn’t protect victims.

“All of the attention is on known sex offenders and just heaping on the punishment,” Elizabeth Letourneau, a professor at the Johns Hopkins Bloomberg School of Public Health who studies child sexual abuse, told Slate in 2012. “This is said to be due to an interest in prevention, but it’s really about retribution. If people are really serious about preventing children from being molested or raped, it may very well necessitate the uncomfortable acknowledgement that some people are born as pedophiles.” 

“All we do is drive it underground,” she added, echoing Berlin. 

Berlin acknowledges that it’s hard to sympathize with men like Fogle. But he also pointed out that society once viewed alcoholism and drug addiction as disgusting and deviant, problems to be blamed on the person who suffered from them. Now most people agree that addiction is a medical condition, one that requires treatment beyond prison time.  

He thinks we should view sex crimes the same way. 

“We need to condemn these behaviors but also to understand that fundamentally decent people can be struggling with urges and cravings they need help with,” he said.  

It’s a message that will “ring hollow to many,” he acknowledged. But to one person, “It might make it easier to say, ‘I need help.'”

2- Why Jared Fogle's Child Porn Plea Deal Makes Sense, August 19, 2015
His sentence could have been much longer under federal law (and much shorter under state law).
By Jacon Sullum

Federal prosecutors in Indiana say former Subway pitchman Jared Fogle has agreed to plead guilty to receiving and distributing child pornography as well as having sex with minors. Unlike his associate Russell Taylor, who ran Fogle's charitable foundation, Fogle was not charged with producing child pornography, and the teenagers he reportedly had sex with at New York City hotels were 16 and 17. Under the plea deal he nevertheless faces at least five years in prison and could serve as long as 12 years. 

That seems pretty steep, especially since the age of consent in New York is 17, which means only one of his liaisons was a crime under state law (leaving aside the question of whether money changed hands). For someone 21 or older, sex with a 16-year-old, a.k.a. "rape in the third degree," is a Class E felony in New York, punishable by anything from probation to four years in jail. In Indiana, where Fogle lives, possessing child pornography can be treated as a misdemeanor punishable by at least six months in jail or a felony punishable by up to three years in prison. Sharing child pornography, which Fogle also admitted doing, is a Class C felony punishable by two to eight years in prison.  

But Fogle was charged under federal law, so his deal makes sense. Under federal law, receiving child pornography, which could mean downloading a single image, triggers a mandatory minimum sentence of five years—the same as the penalty for distributing it. Merely looking at a picture can qualify someone for the same charge, assuming he does so deliberately and is aware that Web browsers automatically make copies of visited sites. 

In practice, since the Internet is almost always the source of child pornography, this means that viewing and possession can be treated the same as trafficking. Fogle in any case also pled guilty to distribution, which includes any sort of online sharing. The maximum penalty for receiving or distributing child porn is 20 years, and federal sentencing guidelines recommend stiff enhancements based on factors that are extremely common in these cases, such as using a computer, possessing more than 600 images (with each video clip counted as 75 images), and exchanging photos for something of value, including other photos. 

In short, while Fogle might have received a sentence as short as two years under state law, he was certain to get at least five years under federal law and might very well have ended up serving longer than the 151-month maximum specified in his plea deal, depending on the enhancements. As that gap illustrates, it is not at all obvious what penalties (if any) are appropriate for consumers of child pornography. While production typically* entails the sexual abuse of children, the injury inflicted by looking at and sharing these images is much harder to pin down, let alone measure. It is therefore troubling to see such offenses treated as severely as (or more severely than) violent crimes like robbery, rape, and manslaughter. 

Although legislators seem to assume that no penalty for child pornography offenses is too harsh as far as voters are concerned, they may be wrong about that. In a recent federal case, the judge asked jurors what sentence they considered appropriate for a man they had convicted of possessing and distributing child pornography. The defendant was caught with 1,500 images, and he was charged with distribution because he also had peer-to-peer file sharing software. On average, the jurors recommended a prison term of 14 months—far shorter than the mandatory minimum (five years), the sentence recommended by prosecutors (20 years), or the term indicated by federal sentencing guidelines (27 years). 

Addendum: The press release about the case from the U.S. Attorney's Office for the Southern District of Indiana notes that "federal law provides strong punishment for engaging in commercial sex acts with minors under the age of 18 years," no matter what the age of consent is in the state where the sex acts occur. According to the charges against Fogle, he repeatedly received pornography produced by Taylor that involved minors ranging in age from "approximately 13-14 years old" to 16. The statement of charges says "the images or videos were produced using multiple hidden cameras concealed in clock radios positioned so that they would capture the minors changing clothes, showering, bathing, or engaging in other activities." Taylor also allegedly shared with Fogle "commercial child pornography" produced by others, and on a couple of occasions Fogle "displayed to another person the commercial child pornography he obtained from Taylor on a thumb drive." Those incidents seem to be the basis for the distribution charge against Fogle.

Addendum II: Although Fogle's plea agreement reportedly mentions sex with a 16-year-old prostitute, the charges against him refer only to sex with a 17-year-old. ABC News says "federal prosecutors could not explain the discrepancy between the two documents." 

* I originally said "necessarily," but that was too strong, since the hidden-camera material at issue in this case did not involve sexual abuse of children, and neither do nude pictures that teenagers take of themselves, which nevertheless legally qualify as child pornography.