A Panic, A Simple Solution and The Developmentally Disabled

No regular reader at SJ is unfamiliar with the sex offender registry, the simplistic solution birthed by a public panic that became a convenient tool of politicians to keep the public in fear so they could fix it by adding more people, more crimes, more punishment to the list. Guy Hamilton-Smith has laid bare his story here. They now exist as a permanent underclass, condemned to live under bridges until imprisoned for not being able to register their new address.

At Persuasion, Carol Nesteikis tells of yet another wrinkle to this Fool’s Paradise based on what happened to her son, Adam.

When Adam was a toddler, he was diagnosed as having an intellectual and developmental disability (the updated term for “mental retardation”). Many clinicians over the years have confirmed that he will never have the ability to care for himself. My son has the intellectual capacity of a 10-year-old—one who is guileless, naïve, and easily manipulated.

There are a lot of Adams out there. This description may well sound horribly familiar to many of us, sweet, beloved children who will never grow out of their intellectual and developmental disabilities. They are vulnerable, not out of choice or a failure of parental supervision. No parent can sit on their child every moment of every day, and no child can spend their life bubblewapped and hidden away, as much as that may be a parent’s inclination, if only to protect them from the harsh world that won’t understand that they are defenseless.

Adam became friends with a neighborhood child, Reuben, who suffered his own demons and sexual abuse, although Carol didn’t know about it. She thought the long-term friendship could be trusted.

But unbeknownst to us, Reuben—now a young adult—was re-enacting the sexual abuse he had been subjected to as a boy, and was molesting both my son and his niece. My heart breaks for this little girl, who has endured so much trauma. One day, Reuben told my son that it would fun if Adam unzipped his pants and exposed himself to the 5-year-old girl. Adam did. He had no understanding of what he had done, nor did he touch her.

The niece told Reuben’s adoptive parents what had happened, and they called the police. Both Adam and Reuben were arrested. We were in despair for everyone involved. My husband and I emptied our savings accounts to pay for attorneys—money we had put aside for retirement and to provide for Adam after we were gone. We assumed that once the court understood that Adam himself had been victimized and that he was neither dangerous nor mentally competent, this nightmare would end.

The story from there takes no surprising twists. The prosecution didn’t “understand,” or just didn’t care because cutting a man in his twenties a break for exposing himself to a young girl would have made heads explode. The same outrage that cost Aaron Persky his bench was at play here, because after all, who cares about this disgusting miscreant to did such a thing to a girl, even though he was manipulated and mentally incapable of appreciating what he was doing?

This is a good place to pause and get a firm grip of reality. Carol is telling the story of Adam, and he is and should be deeply sympathetic in the retelling. But if the story appeared on the front page of your local paper from the perspective of the young girl abused, would you be calling for Adam’s execution as a child predator and sex monster? At least some of you would. At least some of you have.

As is the usual path of least resistance, a decent plea to a misdemeanor was offered and taken, and trial was far too risky.

When Adam appeared before the judge, she was required to make sure my son voluntarily agreed to plead guilty and that he understood the consequences of doing so. But my son didn’t comprehend any of the questions the judge asked him. Adam’s lawyer stood next to him and told him what to say.

Carol may be surprised by this dynamic, but no criminal defense lawyer should be. Imagine what might have come of a trial, where Adam, who couldn’t testify because of his disabilities, could have ended with life plus cancer for his 19 felony charges. The plea was the only rational option in such an emotionally charged case, and his lawyer managed to get him through it, knowing full well that he had no comprehension of what was happening, and saved him from what prison would have done to this guileless young man.

But the collateral consequences came as shock.

Because of Adam’s conviction, we could no longer live in the neighborhood where we raised him and his sister, so we bought a one-bedroom condo, and eventually sold our house of 35 years. My husband sleeps on the couch, and I sleep on an air mattress in the walk-in closet. We let my son have the bed. He has lost so much that we had to let him have his own bed. For the two years he was on probation, he was terrified that his ankle monitor would go off. He was also required to stay inside from 6 pm to 6 am. Because Adam cannot be left alone, we all lived under this curfew.

Adam has been on the registry for seven years. He doesn’t have the capacity to understand what the registry means. He just knows that he can no longer participate in the activities he loves. His life is so restricted that he spends most of his days in our small apartment. He plays with fidget spinners, watches the robot vacuum clean the floor, and talks to Alexa and Google Assistant. He is severely depressed, and his language and social skills have drastically deteriorated.

As Carol Nesteikis writes, Adam is no sex offender. Adam is no threat to anyone. She and her husband are in their late 60s and retired. What happens to Adam when they’re gone?

23 thoughts on “A Panic, A Simple Solution and The Developmentally Disabled

  1. Alex

    How on earth a person, who can’t understand what is doing or why some behaviour is obviously bad , is not a threat to anyone? A sane and logical conclusion would be exactly the opposite.

    One can perfectly argue that the person still is innocent, hence the concept of punishment and its particular implementation is backwards. But being innocent is not the same as being “harmless”

    1. SHG Post author

      Read again, and this time noting the word “manipulation.” This wasn’t something Adam came up with on his own, or did repeatedly, but something he was manipulated into doing by someone else, and which he lacked the capacity to appreciate that he was being manipulated and it was wrong.

      1. Alex

        Explanations are not really justifications. It is precisely the underlying fact that “he lacked the capacity to appreciate what he was doing” the reason why he did what he did and why being innocent is not the same as being harmless.

        Again, he is innocent and nobody should be mad at him. Ask for better humane remedies, fine. But this person clearly can’t handle meaningful freedoms and that’s a problem for society.

        1. SHG Post author

          I assume you’re not a criminal defense lawyer or you wouldn’t pose such a grossly simplistic understanding of how law works. Unfortunately, this is a criminal law blog.

        2. Jeff

          I may be misunderstanding you here, but it would appear that the logic of your argument pre-emptively condemns any mentally handicapped individual as being a potential danger to the public. By that logic, really no human being is “harmless” and we should all be on the registry, just in case.

        3. Alex S

          (Please note I am a completely different Alex than this commenter.)

          The nonlawyers really are clueless.

          I wonder if he realizes we would have to lock up all the actual children under this rationale.

  2. B. McLeod

    So, prognosticating. When they are gone, Adam will become non-compliant with his registry obligations and eventually will be incarcerated as a result. Probably somewhere without automatic vacuums to watch or an Alexa or Google assistant with which to converse. His social and communicative skills will further decline, but nobody in the carceral setting will care. After some number of years, he will die and be removed for burial in a pauper’s grave somewhere, or cremated. His file will be closed and sent to a big storage box (or digitized to cloud storage somewhere) where nobody will ever read it. Somebody else will get the cell, and Adam will swiftly become yet another forgotten triumph of justice.

  3. Chris CC

    Centuries of social development to move beyond human sacrifice to appease the gods, and today, we strip away someone’s humanity to appease people with shortsightedness caught up in synchronized roaring over the kill.

  4. steve king

    This situation is absolutely disgusting and a remedy is needed, particularly in the case of the mentally incompetent. Is there no remedy under law in which someone can be removed from the offenders list? It may have been the law, but is was certainly not justice.

    There seems to be a belief that placing a person’s name on a “list” is the end all of everything, the cure of all vices and problems. Once on such a list, controlled by some government, how do get removed from it? We have had Senators (I believe) placed on the “no fly” list . I can see how a Senator can get off, but how about the rest of us?

  5. Rengit

    There was a case from the 90s in my crim law textbook where a couple teenage girls, about age 15 or 16, decided that it would be hilarious to get their mentally and intellectually disabled coworker/neighbor to do sexual stuff for them like masturbate in front of them, and I think one of them performed oral sex on him; can’t recall if any penetrative acts were involved. The handicapped man was around age 30, give or take a year or two, but was mentally, intellectually, emotionally, what have you, of the capacity of a single-digit child. Long story short, the girls’ parents found out, had him prosecuted, he was convicted and put on the sex offender registry.

    If the harm of sexual relations between adults and minors is that the latter is incapable of understanding what they are doing and unable to handle it emotionally or psychologically, and the former does have that capability which is what makes the situation abusive, it seemed a manifestly perverse result; rather, these girls, high school teenagers with an understanding and awareness of sex, were abusing a man who was at the level of a 3rd grader. There has to be some way to fix the strict statutory age bar when the adult is intellectually at the same or even lower level than the minor.

    1. SHG Post author

      Neither our law nor our “passions” are very good at distinguishing the special needs of the developmentally disabled. And we always feel badly about it later, but it’s always after the damage has been done.

  6. Hunting Guy

    These are the types of cases that make me, a non-lawyer, go “What the hell.”

    Isn’t it the job of the judge and the prosecutor to provide justice to everyone?

    Something is wrong with the system when these things happen and it pisses me off.

    1. B. McLeod

      There is considerable randomness in the criminal system. It really can’t be said to provide justice in any meaningful sense. Probably what it can be said to manage, at best, is to maintain sufficient possibility of punishment for wrongdoing that some sense of an ordered society can be maintained. For people brought into the system, it’s a crap shoot.

  7. SRH

    I don’t understand why Adam’s lawyer didn’t petition the court to find Adam not competent to stand trial. It makes no sense to me that they did not pursue that avenue. I also have a son with an intellectual disability, and he was caught up in a sting operation and charged with two felonies for attempting to solicit a minor. It took 2 different lawyers, 2 years, and great persistence on my part, but my son was eventually found not competent to stand trial and all of the charges were dropped.

    1. SHG Post author

      Glad it worked for your son, but that doesn’t make it relevant or viable in every case involving an intellectual disability.

      1. SRH

        I understand, but it doesn’t say anywhere if they pursued it. From the description, Adam is definitely more impaired than my son, and the laws regarding non-competency in Illinois are the same as those in my state. Other readers of this article should be aware that this is an option so that they can pursue it for their disabled children if they are caught in the same horrifying situation. Thank you!

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