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Leveraging Shame And The Presumption Of Guilt To Destroy Lives And Punish Consenting Adults

from the 'MURICA dept

The criminal justice system theoretically operates on a presumption of innocence. An arrest booking is hardly an indicator of guilt, but try telling that to millions of people who believe being accused is no different than being found guilty by a jury. Everyone knows this presumption of guilt exists, despite it being wholly contrary to the basis of our justice system.

Cops know this best. A high-profile bust is as good as a guilty verdict. So it’s no surprise that they’ve increasingly turned to the greatest shaming mechanism known to man: the internet.

In a long, detailed and disturbing piece for the New Republic, Suzy Khimm examines law enforcement’s infatuation with harnessing the internet to prey upon the public’s continual presumption of guilt. It leverages the most lurid of accusations for maximum shaming, knowing that anything with “sex” in the vicinity will gather news crews like pyros to a dumpster fire.

Prostitution stings are a favorite. You can easily tell it’s a victimless crime because none of the parties involved receive any privacy protections from law enforcement. Being swept up in one of these stings means seeing your name and face splashed across a variety of news outlets while the fine print (“all arrestees are innocent until proven guilty“) is relegated to the end of the coverage, if it’s mentioned at all.

The name of the crackdown suggested a cheeky tabloid headline: Operation Flush the Johns. The other news hook was its sheer scale: 104 men arrested for trying to buy sex through the sting. At a press conference in June 2013, Nassau County District Attorney Kathleen Rice and Police Commissioner Thomas Dale unveiled the arrests with great fanfare, arraying the mug shots of all the accused men on a big poster board propped up next to the podium.

How could any self-respecting tabloid resist? “Heeeere’s the ‘Johnnies’!” screamed the New York Post: “104 Horndogs Exposed in Prostitution Sting’s Wall of Shame.” Their names and faces made the U.K.’s Daily Mail. ABC News’s New York affiliate and The Huffington Post turned the 104 photos of the men into online slide shows, leaving out the disclaimer that officials had put in small letters at the bottom of the original image: “All are presumed innocent until proven guilty.” As the articles spread online, they begat more stories and links. All of it now swamps the search results for the names of many of the men arrested, regardless of whether they were ultimately convicted.

Rarely do these stings result in large numbers of convictions. In fact, sex trafficking stings — ones that encompass years of investigations — rarely result in anything more than a handful of prison terms. Sex trafficking is almost always tied to prostitution busts, even when no evidence of trafficking can be found. But police departments and politicians love nothing more than to shame everyone involved — especially the paying customers.

This isn’t a recent development. This country’s Puritanical approach to sex has long been the focus of law enforcement shaming efforts. It’s not enough to simply arrest and charge customers and sex workers. An effort must be made to uphold the stigma. This law enforcement “tradition” traces back to the late 1970s, if not earlier. Politicians and judges, working in concert with like-minded law enforcement who felt laws and statutes weren’t doing enough to deter offenders, came up with creative ways to further punish arrestees.

In 1979, New York’s mayor Ed Koch introduced “The John Hour,” in which he read over the public radio the names of men who had been convicted of buying sex. (It actually lasted less than two minutes and only aired once.) In 1988, a Brooklyn slumlord was sentenced to live in one of his buildings, where his tenants greeted him with a banner that read “Welcome, You Reptile.” In a 1994 domestic violence case, a court ordered an Ohio man to either pay a $100 fine or let his ex-wife spit in his face.

As for the 104 busts that went viral, prosecutors have nearly nothing to show for it.

In the end, 18 men pled guilty to the misdemeanor charge, 67 pled guilty to disorderly conduct, six were acquitted, including the scientist, one was designated as a youthful offender—a teenager whose records are sealed—and seven cases were dismissed. Of the 104 men originally arrested in Operation Flush the Johns, only one was convicted at trial. (As of this February, three cases are still pending, and a warrant is still out for one man’s arrest.)

That nearly everyone walked away without being charged with soliciting prostitution is lost to history. One scientist (whose story is detailed in the report) basically lost everything, even though he was acquitted. And still, law enforcement officials — along with the politicians who have made sex “crimes” their pet issue — continue to claim there’s nothing wrong with leveraging public perception to destroy lives.

Today, Rice and Nassau County both deny that Flush the Johns went out of its way to shame anyone or treat their arrests differently. The biggest difference, Rice argues, was that our culture continues to view prostitution as a “socially acceptable crime,” unlike other offenses. “Every DA’s office puts out a press release when they make arrests—there are pictures of people accused of murder,” she told me in a recent interview.

[…]

“This was not ‘shaming’ nor was it intended to be—this was enforcing the law and raising awareness of a violent industry that too many people don’t consider to even be criminal,” said Shams Tarek, a spokesman for the Nassau County District Attorney’s office. “The wealthy college-educated professional and the poor drug dealer deserve the same treatment by the justice system every day of the year; some people want different sets of justice systems for different kinds of defendants, and that’s wrong.”

But none of this is true. Law enforcement officials don’t hold press conferences to announce every misdemeanor bust and they certainly don’t do it under cutesy mission titles like “Flush the Johns.” It’s all about shaming people for consensual transactions, simply because some people feel it’s morally wrong and law enforcement knows its an easy way to ensure positive press.

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Comments on “Leveraging Shame And The Presumption Of Guilt To Destroy Lives And Punish Consenting Adults”

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57 Comments
Herman Gherd says:

Re: Re: Re: Re:

Now where getting to the heart of the matter.
Off-the-books revenue streams: check.
Ability to exert political control and influence over certain groups/subgroups: check
Asset forfeiture without rigorous due process: check
Political leverage by appearing to have the moral high-ground: check

Why on Earth would governments ever consider legalization/decriminalization when it means giving up the above?

edincleve (profile) says:

How many families were torn apart when what should have been a private matter between a wife and husband is plastered on TV or the front page of a newspaper.

Many wives, although not happy about her husband’s intended infidelity, would have tried to work things out. But once it becomes public knowledge, she is going to be pressured by family and friends to divorce the cad. It takes a strong woman to resist such pressure.

Uriel-238 (profile) says:

Re: Re: "Non-feminist"

Feminism is a large enough movement to have a wide gamut of identifiable positions regarding sexuality from Sex-Positive Feminism to Anti-Porn Feminism.

And each of these are models that only loosely categorize groups, the individuals in which have their own opinions which mostly match the model under which they’re categorized.

Kinda like Liberalism or Conservatism.

Wendy Cockcroft (user link) says:

Re: Re: Re: "Non-feminist"

Agreed, but I would not be happy if I thought my hubby was messing about with another woman. It’d take amazing strength of will to be happy or pragmatic about your other half spending time and money with another person because (and this is how it feels, I’m told) you’d be left wondering which of his needs you failed to meet. And then you’d wonder if he’s making plans to leave you because you’re past your best before date, or because he’s connected with one of these other women, or whatever.

This is not about feminism or even conservatism. It’s about trust. The way I see it if you’re in a relationship and want to fool around, admit it to your other half so she can decide whether or not she wants to remain in the relationship or not. If you can’t do that don’t fool around.

Uriel-238 (profile) says:

Re: Re: Re:2 "Non-feminist"

…And then you’d wonder if he’s making plans to leave you because you’re past your best before date, or because he’s connected with one of these other women…

Or, you can permit him to seek out what you’re failing to provide (the same way my girlfriend might go to a knitting circle because I don’t know the first thing about knitting), and keep it all above board.

Yes, we’re raised to believe that we’re supposed to be able to provide everything to our partners, but we’ve known better for over a thousand years, which is why even traditional romantic notions are not with your (arranged) spouse but with a bit on the side.

You got it right in one, Wendy Cockcroft it’s about trust, and a way to preserve trust is to get everything above board. When your partner can go to you and say I really want this thing, whether it’s to get you in leather or bang his secretary, then all the issues, including abandonment insecurities, can be discussed and fielded.

Personally, (and with the caveat my position is unusual) I’ve found it comforting to know my partner can seek out other partners if she wants to and yet is is still with me. It tells me that she’s not staying with me because I’m the easy trick, or the convenient guy, but that I’m still attractive to her.

In a world where I expect deception behind every shroud, it’s comforting I don’t have to suspect her ever.

But as I said, people generally don’t see it that way.

Tim R says:

By any other name

We here as a community at Techdirt are quite familiar with all of this. We even have a name for it, thanks to Bruce Schneier: “security theatre”. It’s the same performance on a different stage.

Law enforcement providing the illusion that they’re “doing something”. And nobody in the press or the public is going to revisit this in a year to see the fruits of the state’s labor. As a resident of Florida, I see it all too often coming from Polk County’s finest and the infamous Grady Judd.

I would love to see John Oliver and the crew at Last Week Tonight do a piece on this. It seems right up their alley.

Are you listening, John?!? (flushing jokes withheld)

That One Guy (profile) says:

If you're going to lie, at least put some effort into it

“This was not ‘shaming’ nor was it intended to be—this was enforcing the law and raising awareness of a violent industry that too many people don’t consider to even be criminal,”

Which of course is why the names and faces of those involved are presented front and center, while the ‘These people haven’t been found guilty’ disclaimer is added almost as an afterthought.

If it really wasn’t about ‘shaming’ then they could ‘raise awareness’ just as easily by posting the numbers of those involved. Not the names, not the pictures, just ‘This is how many people were involved in the sting pre-trial’, followed later on by ‘This is how many people were found guilty’.

As for this line…

The wealthy college-educated professional and the poor drug dealer deserve the same treatment by the justice system every day of the year; some people want different sets of justice systems for different kinds of defendants, and that’s wrong.”

Coming from a state DA’s office… yeah, that’s just a little rich. No really, by all means tell us how the legal system treats everyone equally and fairly, and doesn’t say take into account whether or not someone has a badge, important connections, or a large bank account in determining just how they’ll be treated in the courts.

Quiet Lurcker says:

All too often, we see here reports of cops and prosecutors determined to ‘get their man’, and be d***d to guilt or innocence, complying with the law as written, or even anything approximating to ethics.

Are the cops maybe shaming these individuals in adherence to their ‘get their man’ policy because they’re pretty certain convictions are far from guaranteed?

Whatever (profile) says:

Fun

It’s always fun to watch the Techdirt crew desperately trying to come up with some form of outrage to keep the choir frothing at the mouth.

There are many problems related to prostitution, such as drugs, STDs, human trafficking, pimping, underage sex (yeah, I know, gringe… it’s there), effects on neighborhoods, and so on. The Johns are the financial source the drives all of this activity. That is the sole source of revenue that drives all of the rest of it.

When you work to take the money out of a situation, you take out the profitability, and you take out the desirability to be involved. Raising the risk of arrest and public exposure for being arrested is pretty much on the top of the list to get the job done.

As for the scientist, let’s just say that while he may have gotten off in court, his story is pretty lame. Going to a rundown hotel and paying a girl $100 for a massage late at night is pretty much a thin story. For that price, there are plenty of real physiotherapy places would have helped him out – and he likely would have been able to claim some on his insurance (if he had any).

Remember: Someone being arrested is news, even if they are later found innocent. If you shouldn’t discuss arrested people, then there would be no stories about Aaron Schwatz, because he was never actually found guilty – so he should be off limits. Oh wait, trying to shame officials for making an arrest is acceptable?

You guys are laughable at times.

Anonymous Coward says:

Re: Fun

Remember: Someone being arrested is news, even if they are later found innocent.

Yeah, it’s just pathetic that the arrest is news, but the “found innocent” part isn’t.

The former makes it look like law enforcement is doing “something.”
The latter makes it look like their “something” wasn’t really anything at all.

Laughable indeed.

Whatever (profile) says:

Re: Re: Fun

Never seen a “perp walk” on the news? They generally don’t give equal time to “agreed to a lesser charge and paid a fine”.

That touches the other point that Tim doesn’t seem to like, which is many of these people plead out rather than deal with the courts and such. That doesn’t make them less guilty, just perhaps smart enough to know to take the plea rather than face the bigger charge.

AJ says:

Re: Re: Re: Fun

According to a quick google search, and a quick read, pleading doesn’t necessarily mean they were guilty either. There are a host of reasons why an innocent person would plead guilty. The reason I found most interesting was; It can cost more to defend yourself all the way to a not-guilty verdict, than pay the fine when pleading. I find that very interesting. Seems to me that if your found innocent, you should get all the money you spent defending yourself back from the Government as they prosecuted you in error no? If you are found innocent, that means they made a mistake right?

http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/?insrc=whc

Anonymous Coward says:

Re: Re: Re: Fun

Never seen a “perp walk” on the news? They generally don’t give equal time to “agreed to a lesser charge and paid a fine”.

That begs the question as to why the prosecution would offer or agree to a deal in the first place doesn’t it?

Was their case that weak?
Did the arresting officer have vacation scheduled when the trial was supposed to happen?
Were there glaring procedural fuck ups that would be brought up in a trial making the arresting officer/prosecution look foolish?

Your “point” that you say Tim doesn’t seem to like is just a presumption of guilt, which I’d LOVE to see you on the working end of so that your limited intelligence can have a chance first-hand to see what a problem that is.

Or, are these deals because prosecuting everyone with a full trial as guaranteed by the constitution is expensive? I’d LOVE to see how budgets are affected if everyone, regardless of their guilt pleads “not guilty” forcing a trial. Would the crime be worth it to you then?

Whatever (profile) says:

Re: Re: Re:2 Fun

“That begs the question as to why the prosecution would offer or agree to a deal in the first place doesn’t it? “

The answer is pretty complex, because there are a bunch of things in play here. As an example, in many US jurisdictions, various players in the system are elected (Sherrifs, DAs, and so on). They may find that an important number in their re-election is “number of convictions” or “percentage of cases resulting in a guilty plea” or what have you. So they may find that accepting a plea deal is expedient and still makes the point for them.

They may also realize that the legal system is packed already, and a plea deal means less court time, less time taking depositions and statements, less calling of witnesses, and all that other stuff. It may be financially wise to accept a plea.

I also think they realize that going to court is a risk, even with a slam dunk case. All you need is a judge who feels like making a stand to pull some excuse why certain evidence can’t be accepted, and suddenly a whole bunch of other cases are at risk. So accepting a plea deal avoids having to deal with that possibility.

In the end, the court system doesn’t have enough time or space to do a full trial for every criminal. Accepting a plea deal still gets an acceptable conclusion without the costs of money, time, or effort.

Anonymous Coward says:

Re: Re: Re:3 Fun

In the end, the court system doesn’t have enough time or space to do a full trial for every criminal. Accepting a plea deal still gets an acceptable conclusion without the costs of money, time, or effort.

I see…so metrics for the DA, court is a lot of work, judges treating people inconsistently, and not enough time are perfect excuses for what you call “an acceptable conclusion.” With “acceptable conclusion” meaning “any conviction is better than none, even at the expense of justice.”

Whatever (profile) says:

Re: Re: Re:4 Fun

I think that an acceptable conclusion is when both parties agree because it’s better for both of them. Justice is served, but at the same time all parties can avoid the time and effort to take it through the full court system.

Honestly, if you are not guilty, fight it. But most people arrested are “guilty enough” to know that fighting it in court would be a crap shoot.

Gwiz (profile) says:

Re: Re: Re:5 Fun

Justice is served, but at the same time all parties can avoid the time and effort to take it through the full court system.

While I agree that plea bargains are pretty much a necessary evil with our overburdened court systems, I cannot consider them to be “justice” while prosecutors are allowed to coerce defendants with threats of astronomical sentences. Defendants are basically agreeing to plea bargains while under duress, which is supposed to be a huge no-no with our legal system.

Anonymous Coward says:

Re: Re: Fun

Your valid point may be laughable but here’s the UNfunny part: the arrest record stands even if no charges are filed!

The example in another comment is a good one: no charges filed (or charges dismissed) but the man arrested now has a record that will show up in a background check. He – and anyone else in the same situation – would have to file for an expungement of record. Not everybody knows this or can even afford it.

Anonymous Coward says:

Re: Fun

As I health professional I can tell you that no amount of legislation will prevent people from engaging in certain activities. And no, decriminalization would not open the door to new users. Seriously, do you believe a law is the only thing preventing you or me from using heroin? No, didn’t think so.

From my perspective, the answer is fix the societal woes that create conditions where people want to use drugs. In the mean time, drug abuse and prostitution have to be viewed as a public health threat.

As such, we can help prevent the spread of disease and self harm by allowing access to clean needles, condoms, and access to (relatively) safe sources of drugs (e.g. pharmacy/clinic vs. “crack den”). Legal, regulated access significantly erodes most crimes that follow the illicit drug trade.

Ponder the potential reduction in HIV, Hepatitis C, injection site infections, etc. from such action? You’re looking at something like a 75% reduction in HIV and 60% for HepC. That’s just with users themselves. Now think how many nonusers have been infected by sleeping with users or partners of users- it’s preventable.

I know, it sounds insane. But People are going to use no matter what; people are going to have sex, no matter how unsafe it may be. The rational course of action is to make it safer for the user/participant (i.e., CONSENTING ADULTS) in order to reduce unnecessary harm to the rest of the public.

Ninja (profile) says:

Re: Re: Fun

I disagree. Prostitution is not a public health threat. Sex will happen, paid or not. Unprotected sex is a public health threat. Prostitution is not, it’s a job like any other with its risks. But there should be easy and affordable protective measures yes.

I know, it sounds insane. But People are going to use no matter what; people are going to have sex, no matter how unsafe it may be. The rational course of action is to make it safer for the user/participant (i.e., CONSENTING ADULTS) in order to reduce unnecessary harm to the rest of the public.

With that I agree.

AJ says:

Re: Fun

“It’s always fun to watch the Techdirt crew desperately trying to come up with some form of outrage to keep the choir frothing at the mouth.”

Why do you even bother? This is a blog. It’s supposed to be entertainment and personal opinion based on real current news. If you don’t agree with something the author says, or something commenters say, then argue the point. Personal attacks directed at the site, and the people who enjoy posting and reading on it, just make you look like an asshole and cause people to flag your comments w/o even bothering to read them.

I actually agreed with some of your points, especially the $100 late night massage. I’ve had massage therapy, and I think I paid $60 a visit and it was covered mostly by my insurance. It was a valid argument. But I almost didn’t read it because you were being a dick. If you want people to read your comments, stop being a dick.

Whatever (profile) says:

Re: Re: Fun

Nevada is a perfect example: Prostitution is legal everywhere EXCEPT Clark County (where Vegas is, naturally) and Reno. As it is heavily regulated and with very limited potential to own a brother, the charges tend to be incredibly high and few if any of the locals would actually use the “legal” system. When you realize that a trip to the Bunny Ranch could run you a couple of thousand dollars (seriously!), you can understand why few locals indulge.

In Vegas, the illegal prostitution world runs very strong, disguised behind the “dancing girls to your room” crap that you see handed out on the street corners and on billboards. Even a cheap hooker in Vegas is expensive – unless you are willing to go the crack ho route, in which case, good luck to you!

Illegal prostitution is still a big deal all over Nevada, as unlicensed girls (and guys) provide sexual services all over the state, you just have to look for it to find it. Making it legal didn’t make it go away.

TKnarr (profile) says:

Re: Re: Re: Fun

It’s not that hard to get a license to run a brothel. Worlds easier than a gaming license. But by your statements, one would expect lots of illegal prostitution. I lived there, I worked jobs where if there was illegal prostitution I’d’ve seen a parade of it going by, I even knew several of the brothel owners and a lot of the working girls (through the local Appaloosa and quarter-horse clubs, archery shoots and such), and it simply isn’t that common outside the Vegas, and to a lesser degree Reno, area. Even the ranch hands and miners I knew wouldn’t trust any girl who wasn’t working at one of the houses, just too much risk for not enough savings. Yes you’re going to pay a couple hundred bucks minimum at the brothel, but in Vegas the going rate starts at twice that and goes up fast and Reno isn’t any cheaper so even out in the sticks you aren’t going to be able to find non-professional girls any cheaper than at the houses (if you can find any at all, if none of the degenerate reprobates I knew could find them I don’t think anyone can).

Ninja (profile) says:

Re: Fun

It’s always fun, if somewhat infuriating at times, to watch you spew your bullshit.

Legalizing prostitution does not mean legalizing human trafficking, pimping and underage sex. On the contrary, it gives more protection for the girls engaged in it making it harder for pimps and traffickers and the customers themselves. Prostitution has always existed and will always exist because there is demand. And there is nothing wrong with it. As for STDs and drugs they are other problems. There are plenty of other activities that are commonly paired with drugs. STDs will be there regardless of paid sex. And in fact, sex workers actually taker extra care with such issues as far as I know. And yes, I’ve had my fun with sex workers, some of them good, some not that good. And many couples use the services of sex workers (male or female).

When you work to take the money out of a situation, you take out the profitability, and you take out the desirability to be involved.

Yeah. While you are at that, cut their penises out so it takes desire 100% out. And track every single cash transaction somehow. No, really, you are something.

Raising the risk of arrest and public exposure for being arrested is pretty much on the top of the list to get the job done.

Because the alcohol prohibition worked wonders. Because centuries of shaming and prohibition of prostitution have nearly extinguished it. Right.

For that price, there are plenty of real physiotherapy places would have helped him out – and he likely would have been able to claim some on his insurance (if he had any).

I”d pay for some sexy massage even without coitus. You ignore the intention. He obviously wanted some sexy time. And this should not be forbidden.

Oh wait, trying to shame officials for making an arrest is acceptable?

Moron. As usual you miss the point by light years. Intentionally it seems. The inversion of the innocent until proven the contrary is what is being condemned here. And possibly the idiocy of criminalizing perfectly fine activity just because society is hypocrite and moronic.

Whatever (profile) says:

side note for Tim Cushing

I don’t know if it’s the “Karl Effect” but I notice many of your recent posts are becoming more strident and way less thought out. Between this and the random line selector app (which turns out to be priced just about right), you seem to be trying to create outrage where none really exists.

Learn from Mike. He manages to create outrage without being so obvious about it. Don’t learn from Karl, his posts are often more than a little lame.

NeghVar (profile) says:

Reputation ruined

a while back, there was a case of a school principle having child porn on his phone. The media sensationalized it. Investigators found and recovered child porn that was deleted on the day it was received. Eventually it was discovered that a student had sent the images and then reported the principle anonymously. Charges were dropped against the principle and the student who sent them was charged with possession and distribution of child porn. Unfortunately the media and internet community presumed him guilty. This destroyed his reputation and he had to find a different career.

NeghVar (profile) says:

Re: Re: Reputation ruined

You are incorrect
Title 18 – Crimes & Criminal Procedures
§ 2252A. Certain activities relating to material
constituting or containing child pornography
Section a5B
knowingly possesses, or knowingly accesses
with intent to view, any book, magazine,
periodical, film, videotape, computer
disk, or any other material that contains an
image of child pornography that has been
mailed, or shipped or transported using any
means or facility of interstate or foreign
commerce or in or affecting interstate or
foreign commerce by any means, including
by computer, or that was produced using
materials that have been mailed, or shipped
or transported in or affecting interstate or
foreign commerce by any means, including
by computer;

He did not know what the content of the message was. Upon seeing it, he deleted it. He did not intent to see an illegal picture. That is how the investigation cleared him.

Ninja (profile) says:

Re: Reputation ruined

This is quite worrying. There was a teacher here that was having an affair with one of his students. She got angry because he didn’t want to go out with her anymore and reported him to the authorities. In this specific case the guy was going out with a minor even though it was consensual. But what would prevent some ill-intended girl from setting up some older guy she wants to go out with? Both the authorities and the court were quite sane here and the whole process is running below the radars (at least I haven’t seen anything in the media). So our justice here is handling the things in a much better way than in the US. And the guy is actually guilty.

Wendy Cockcroft (user link) says:

Operation Low Hanging Fruit. FIFT*

While I don’t approve of prostitution in any way, shape, or form, this is a demand-side problem and as long as both the demanders and the suppliers want to be engaged in this business (despite what authoritarians and radicals may tell you and regardless of whether they are correct or not), it will continue. Why not legalise, tax, and regulate it as they do in some of the states?

The trouble with authoritarian responses to demand-side problems is they simply never work. All they do is drive it underground. As for the shaming, that won’t stop people either buying or selling sex. The risk of being caught just adds to the thrill.


*Fixed It For Them.

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