He applied the “Page 99 Test” to his new book, Sex Panic and the Punitive State, and reported the following:My book examines how modern moral panics around sex have stoked a distinctively American culture of fear. Reportage on violent pedophile predators, the perils of the Internet, the priest abuse scandals, the Michael Jackson trial, and so on have made sex crime stories part of the furniture on twenty-four-hour news services, local television news stations, and even newspapers of record. By degrees, then, the figure of the imperiled child has come to occupy center stage in the national morality play, and narratives of rescue have become the dominant justification for political action. I show how the one thing—obsession with extreme perils and statistically anomalous events—substitutes for the other: a concern for child welfare writ large.Read an excerpt from Sex Panic and the Punitive State, and learn more about the book at the University of California Press website.
Page 99 comes near the end of Chapter 3 and develops a key thread of the book’s argument: I show how sex panics are built into the architecture of a state that preempts, punishes, and surveils on an unprecedented scale. New laws have eroded rights of the accused, while Megan’s Law registries, civil confinement statutes, and “child safety zones” undermine constitutional protections against ex post facto penalties, preventative detention, and excessive punishment. And the techniques used by moral entrepreneurs in sex panics have become replicable templates for governance, movable type for lawmaking in general.
Page 98 inaugurates a discussion of what I dub “first-name laws.” “Historically, laws that bore names bore the surnames of their authors: Taft-Hartley, Humphrey-Hawkins, McCain-Feingold. Since the early 1990s Americans have increasingly named laws—which are supposed to be impersonal, detached, aloof—after individual victims, usually a child or young adult. These laws are typically referred to in familiar form: not the Megan Kanka Act, but ‘Megan’s Law.’” This “personalization” of the law, I reason, “bends lawmaking to the passions of the populace; it reinforces punitive trends to strip away rights of the accused and protections for the convicted; and it ratifies the power of the special case to steer the general rule.”
Segue to the fraught case of Terri Schiavo, who had been kept alive in a persistent vegetative state for thirteen years when her husband had the feeding tube removed. In 2003 the Florida legislature passed “Terri’s Law,” empowering Governor Jeb Bush to have the feeding tube reinserted. After the Florida Supreme Court struck down the law in 2005, the federal government intervened.
The Schiavo case is usually understood to have been a campaign by religious conservatives and pro-life activists, who equated removal of the feeding tube with euthanasia and euthanasia with abortion. And so it was, but what is striking about these events is how closely they follow the script of sex panic and the cult of child victimhood. The campaign for government intervention was spearheaded by Terri Schiavo’s parents, who assumed the role of the victim’s family. Congressional Republicans and right-to-lifers deployed the usual tropes of moral alarm. Allegations were floated that Michael Schiavo (decidedly not “family”) was a violent spouse abuser, and some made dark insinuations about his motives for wanting to remove the feeding tube. The family’s complicated ordeal was packaged as one more outrage against the innocent. Videotapes and posters of the comatose woman put a face on the suffering.I sum up on pp. 99-100:
Well in advance of Terri’s Law and federal intervention in the case, a growing body of sex crime laws had prepared the way for just such use and abuse of lawmaking. It cannot quite be said that Aimee’s Law, Megan’s Law, Jessica’s Law, or the Adam Walsh Act were special statutes passed for individual people or particular cases. But they did push legal norms toward reactive, ad hoc lawmaking around special cases. Their naming, their valorization of victimhood, their conflation of horrifying anomalous events with pervasive risks, the techniques of suasion used to pass them, not to mention the special provisions they applied against ex-convicts who had already served their sentences, deeply eroded fundamental legal principles. Many such laws have to do with sex crimes, others with federal involvement in the search for missing adults (Bryan’s Law, Kristen’s Act, Jennifer’s Law), others with routine appropriations for mundane undertakings.
While first-name laws are becoming a normal technique of governance, still other statutes take commemorative form, populating the legal landscape with icons of misfortune. By degrees the social drama boils down to stories of innocence and victimization. The state is cast as the parental figure who will save the imperiled child. By increments exception becomes the rule, emotionality replaces reason, and special provisions become ordinary. This happens not through the suspension of the law but through a hollowing-out of law’s essence.
--Marshal Zeringue
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