The Pedophile Blogger

One of the biggest stories in my absence was the unusual case of the pedophile blogger.  For reasons that boggle the mind, Jack McClellan, a man with no criminal record, decided to publicize  his desire to have sexual relations with young girls.  From the L.A. Times:

Jack McClellan publicizes his attraction to young girls, does the rounds of television news and talk shows, and cooperates with the police.

When Santa Monica police confronted him last week at a Jack in the Box — after he had been spotted in the children's section of the city's main library by a nervous mother who called police — he agreed to let officers photograph him.

On talk shows, he appears unshaven and a bit dazed, but unapologetic about his attraction to little girls, admitting he might have sex with them if it were legal and leaving his interviewers blanched with shock and revulsion.

This certainly isn't the first time a pedophile has sought public attention in very unusual ways.  However, McClennan's situation is remarkable in that he has created legal trouble for himself when he had none before.  Eugene Volokh has been following the case.  This post outlined some of the legal issues for the pedophile blogger:

The blogger is obviously a disturbed and disturbing man -- at best someone who has fun scaring the wits out of parents, and at worst a child molester -- but I think it's necessary to see his work to get a sense of what legal responses would be permissible or impermissible.

Most of the pictures aren't included in the archive, which is good for the pictures' subjects but makes it a little harder to evaluate. The one picture I saw, which was purportedly taken in South America, does fit with the media reports that the pictures on his sites have not themselves been pornographic (though obviously they are disturbing and menacing in context).

Volokh followed up when a court issued a rather unusual restraining order in the case:

A court has just issued a restraining order — with no appearance by the defendant — that, among other things,

(1) bars McClellan from "follow[ing], ... keep[ing] under surveillance, or loiter[ing] with or around any minor child,"

(2) bars McClellan from contacting, "photograph[ing], videotap[ing], post[ing] on internet, or otherwise record[ing] any image of a minor child without parent's or guardian's written consent,"

(3) bars McClellan from "loiter[ing] where minor children congregate in, including but not limited to schools, parks, playgrounds, bowling alleys," and

(4) requires McClellan to "stay at least ... 10 yards away from" "any minor child."

The court reports that the order is "based on stalking" and "based on a credible threat of violence and harm to minor children." The order is ambiguous on whether McClellan is also barred from having guns — those provisions on the order form are crossed out in one place but not in another; I take it the court's intent was not to apply them at all.

I don't know what evidence was introduced at the hearing, so it's possible that there was some evidence that McClellan had actually molested children, or was planning to do so. If there was, and the evidence was sufficiently strong, then a temporary order of some sort would be constitutional — a person can, after all, be arrested and jailed just on a finding of probable cause to believe he has committed a crime.

But if the only evidence is what we've seen in the press, which is chiefly that McClellan admits to a sexual attraction to children, believes that sex with children is proper, claims not to have molested children or engaged in sexual touching with them but has apparently said he had "hugged" them, and has in the past photographed children and posted their photos on the Internet with text praising their appeal and promoting the propriety of sex with children, then it seems to me that the order is unconstitutional.

I think this order is clearly an overreaction if only because it is probably impossible to comply with (staying 10 yards away from any minor child in an urban area is just not realistic).  However, this case illustrates the problems associated with threats to a group, but not individuals.  American law largely concerns itself with particular threats aimed at particular persons (however, it has even struggled in that area in stalking cases).  Threats against groups, but not individuals, rarely raise legal problems.  This is in contrast to many other nations around the globe.  McClennan may go his whole life without raping a child.  Nonetheless, his words can have real effects.  And in this country, those effects do not raise substantial legal issues.

CrimProf and Crime and Consequences also are covering the case.

Comments

[ZMan]

This guy is free to speak about anything he likes, but, I'd personally like to kick his butt. He's making the lives of sex offenders even more of a hell because of him being an idiot and talking about that. I think he is just seeking attention, and he's received it. I do not see how they can do all this they are doing, it's the "thought police" in action. If he's not broken any laws, then leave him alone. People may find him disgusting, etc, but it is his freedom of speech.

I personally wish he'd stop, so we can get some of these sex offender laws repealed, but he's not helping one bit.

[jvarisco]

Even if not enforceable, wouldn't this offer an excuse for locking him up when he violates it and also give them something else to enhance the sentence if he does do something (as he was sort of on probation)? If so, it strikes me as not a bad idea at all. What we really need is civil commitment before pedophiles act on their desires.

If anything, this shows how sex offender laws are not restrictive enough.

[George]

We would save a lot more children from mayhem and death if we locked up all drunk drivers before they ever had the chance to drive drunk.

[Ilah]

"If anything, this shows how sex offender laws are not restrictive enough."

I'm sorry, but this made me laugh out loud. Sex offender laws, by definition, apply to those who have been convicted. Continuing to tighten laws around the already-convicted doesn't do a thing to stop this man, nor the thousands of others who commit sex crimes before they're convicted. That strategy does, however, steal resources and attention from prevention and investigation of sex abuse.

Unless you want to institute a pre-crime incarceration program, and undergo the rewriting of constitutional protections that would require, there is no way to stop this man through the system of justice.

[jvarisco]

The constitution allows mentally unstable individuals who are likely to harm others to be involuntarily committed. I think just about any pedophile - and certainly ones who don't seem to think it is wrong - fits that standard pretty easily.

My point on laws not being restrictive was that pedophelia is an incurable problem. I don't really see why any people who sexually assault children should get out - they will probably end up doing it again. As Romney has proposed, we need a "One Strike, You're Ours" policy.

[Ilah]

"The constitution allows mentally unstable individuals who are likely to harm others to be involuntarily committed. I think just about any pedophile - and certainly ones who don't seem to think it is wrong - fits that standard pretty easily."

Very well--advocate for its use. No new law needed. Though why such committment practices escaped the notice of those invloved in this case, I cannot guess, particularly if any pedophile would easily fit the standard for committment.

"My point on laws not being restrictive was that pedophelia is an incurable problem. I don't really see why any people who sexually assault children should get out - they will probably end up doing it again."

Rather than answer this myself, I would direct you to the Center for Sex Offender Management, sponsored by DOJ. (www.csom.org) Check out their "Myths and Facts" link for starters.

Regarding never releasing anyone who has assaulted a child, we're nearing that now. Despite opposition from many prosecutors and victim advocates, the 25-year minimum is becoming standard. Again, it makes people feel good, but in reality will lead to fewer convictions, and lower reporting, of child sexual abuse.