Historical Perspective of the "sex Psychopath" Statute: from the Revolutionary Era to the Present Federal Crime Bill - Raquel Blacher

• Publication year: 1995

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Historical Perspective of the "Sex Psychopath" Statute: From the Revolutionary Era to the Present Federal

Crime Bill

I. Introduction

As an historical analysis, this comment begins with a background of the American criminal process from the pre- and post-Revolutionary eras. Along the way, a transformation regarding the views of criminal law and criminals took place. By means of this historical background, the comment further analyzes how the shifting notions during the seventeenth and eighteenth centuries are reflected in modern day sex offender legislation.

The comment traces the first "sex psychopath" statute in 1930s' Michigan to the recent federal crime bill that includes legislation for "sexually violent predators." Although the comment reviews the legal significance of the enactment of sex offender legislation, it also makes note of the recurring theme regarding the emergence of these efforts: The public expresses outrage over brutal crimes sensationalized in the media. Then, legislators and interested groups respond with tailored legislation addressing the cycle of fear sex offenders cause.

The comment ends with a discussion of the recently enacted federal crime bill, which includes a provision for sexually violent predators. The crime bill's language is reminiscent of the first "sexually violent predators" statute enacted in Washington State in 1989.

II. History

Under English common law, ecclesiastical courts originally exercised a wide jurisdiction over all matters pertaining to morals and the family.¹ These courts—also called "Courts Christian"—assumed jurisdiction with the hope of amelioration in contrast to the harsher penalties exacted under the general criminal jurisdiction.² In addition to offenses specifically punishable at common law, the church claimed authority over acts involving sex.³

During the sixteenth century, however, the upper social classes in England developed an administrative approach for themselves by way of the Court of High Commission.⁴ From 1558 to 1640, the Court of High Commission dealt with unusual sexual and family practices.⁵ "Persons committing acts such as adultery, incest, bigamy, immorality, assault with intent to ravish, swearing desperate oaths, and blasphemy were handled by . . . [both] the system of ecclesiastical courts and the High Commission.''⁶

Yet, by the peak of Puritan ascendancy and the English Civil War in the mid-1600s, which led to the abolition of the English monarchy, both bodies had fallen into disuse.⁷ As a result, either by creation of specific statutes or common law assumption of general jurisdiction, the common law courts took charge of offenses within the domain of marital and sexual aberration: During the sixteenth century reign of Henry VIII, a specific statute was created to deal with "unnatural offenses."⁸ Bigamy became a crime in 1603, viewed as behavior in need of legal regulation. Divorces no longer were within the jurisdiction of the ecclesiastical courts when special "divorce courts" were created in 1857.⁹ "Over the last century in England, various sexual offenses acts were enacted based on different aims that were often in conflict, such as prohibiting sexual acts believed immoral by way of the criminal law even though the utilitarian goal of preventing demonstrable harm was not in question."¹⁰

A. Shift in Function of American Criminal Process

The focus on the shifting notions of the Anglo-American criminal process during the pre- and post-Revolutionary eras is valuable because it gives perspective to recent efforts to control sexually deviant behavior. Colonial Massachusetts is an illustration of the transformation of American criminal law during the pre- and post-Revolutionary eras.¹¹

In early colonial days continuing through the late eighteenth century, Puritan criminal law was heavily infused with Mosaic law.¹² Sin and crime were equated, and the sinner was a criminal. Criminal law was the application of the law of God. No separate ecclesiastical courts were required because religious notions involving sex were incorporated into the application of the civil law. The primary goal of criminal law, therefore, was the enforcement of the people's religious morality.¹³

During the late eighteenth and early nineteenth centuries, American criminal law transformed significantly. The common pre-Revolutionary notion of the function of criminal law was to enforce the morals and religions of the American people.¹⁴ After the war, however, the predominant view was that the purpose of criminal law was to protect property and physical security.¹⁵ This ideology reflected the contrasting function of the criminal process. In addition, the role of government in criminal cases, "from passive arbiter of contests between private citizens to active advocate of public order,"¹⁶ shifted accordingly.

1. Criminal Law During Seventeenth Century and Pre-Revolutionary Era: Prosecutions for Immorality and Crime as Sin. In the 1600s, there was initially a hesitancy to inflict punishment for sex offenders without scriptural authority.¹⁷ However, in the "Body of Liberties" of the Massachusetts Bay Colony, although rape was not originally a capital offense, by 1648 it had become one such offense.¹⁸ Rape was the only capital offense listed without a Biblical citation to justify the punishment. Adultery with a married woman was a capital crime for both parties.¹⁹ Sexual intercourse between a married man and a single unbetrothed woman, however, was considered no more than fornication.²⁰

A.D. 1285 concluded the culmination of the unfolding history of the treatment of rape in English law. Codified English law denned rape as a felony punishable by death.²¹ Little has changed since then, and this precedent was eventually brought to America. In colonial America, rape was punishable by death once scriptural authority was ignored.²²

Originally, the most severe penalty short of death was ordered when the victim was a minor: The penalty may have consisted of the maximum number of lashings permitted, slitting the offender's nostrils, or condemning him never to appear in public thereafter without a halter about his neck.²³ Aggravated rape offenders usually were required to continue wearing a rope around the neck.²⁴ Although statutes were enacted authorizing punishment by death for statutory rape, in practice, the lives of most transgressors were spared.²⁵

Criminal law of the pre-Revolutionary era "included offenses against God and religion, offenses against government, offenses against public justice, offenses against public trade and health, homicide, offenses against the person, and offenses against habitations and other private property".²⁶ According to research concentrating on the court records of colonial Massachusetts Middlesex county between 1760 and 1774, most cases were within the category of offenses against God and religion.²⁷ The majority of cases were for fornication, denned as sexual intercourse between a man and a woman not married to one another.²⁸

Fornication was in fact punished because it offended God, not merely because mothers of illegitimate children burdened the communities with the need for economic support for the children. A man found guilty of fornication was required to give a bond to the town as a guarantee of his support for the child; thus, economic interests were involved.²⁹ However, "prosecutions were brought even when no economic interests were at stake, and the same penalties were imposed in those prosecutions as in cases where economic interests may have played a part."³⁰ Therefore, a woman accused of fornication was punished because her offense against God was the essential evil.³¹

Related to the typical view of crime between 1760 and 1774 was the view of the criminal: an ordinary member of society who had sinned.³² Thus, "UJike sin, crime could strike in any man's family or among any man's neighbors."³³ Court records during this era indicated a convicted criminal was not segregated from the rest of society and placed in prison—penalties were not imposed to sever a criminal's ties with society.³⁴ The normal punishment imposed for a long duration—the sale into servitude of a convicted thief unable to pay treble damages—affected a criminal, not by segregating him, but by integrating him more fully into society by reorienting him toward normal social contacts.³⁵

Although the first decade of the Revolution produced no change in prosecutions regarding a fornication offense, the General Court in 1786³⁶ enacted a statute that codified punishment for fornication.³⁷ The fornication statute permitted a woman guilty of the crime to confess her guilt before a justice of the peace, pay an appropriate fine, and thereby avoid prosecution by way of indictment . . . .³⁸ This resulted in a significant decline until 1791, when women stopped confessing, as they were aware that even though they did not confess they would not be indicted.³⁹ As a result, the law's attitude toward adultery changed.

By 1793, though divorces for adultery were regular occurrences, prosecutions disappeared.⁴⁰ Thus, the courts were able to publicly acknowledge the existence of sin without prosecuting it.⁴¹

According to religious leaders of the times, the deemphasis of prosecution for sin was related to a deterioration in morals.⁴² They traced the reasons to the Revolution, where "'profaneness of language, drunkenness, gambling, and lewdness were exceedingly increased.'"⁴³ In addition, morality's deemphasis was traced to social vice and illegitimacy. A modern author, however, does not trace the late eighteenth century's change as to a '"deep-seated coarseness or general immorality.'"⁴⁴ Rather, what occurred during the transition period of the pre-Revolutionary era to the Revolution was a relaxation of social customs or public morality.⁴⁵

2. Criminal Law During Post-Revolutionary Era: Prosecutions for Safety of Society. A gradual increase of prosecutions for...