Sex, Laws and Politicians

March 14, 2008 — -- This week, New York Gov. Eliot Spitzer resigned from office after the release of federal court documents that indicate he was a client at a high-priced escort service. He called the reasons for his resignation "a private matter."

I agree that an adult paying for sex should be considered a private matter, but Spitzer didn't consider it private when other people did it.

As the state's attorney general he spearheaded high-profile investigations into prostitution rings, getting people arrested for operating escort services like the one he allegedly used.

As Friedrich Nietzsche once said, "Beware of those in whom the will to punish is strong."

Take, for example, Idaho Sen. Larry Craig. He has a long history of supporting tough sex crime legislation and fought against gay marriage, but Minneapolis police say he solicited a sex act from an undercover officer in an airport bathroom last year, which he denied.

And then there's former Florida Rep. Mark Foley. He, too, was one of the strongest advocates of punishing adults who have sex with minors. He was a champion of the Adam Walsh Act, which requires states to adopt tougher laws targeting sex offenders. Of course, ABC News then caught Foley sending sexually explicit instant messages to minors.

It's understandable why politicians are so eager to push sweeping new laws against sex crimes. It gets them more time on TV and a chance to impress voters. But these politicians should cut back on their grandstanding, because even those who aren't hypocrites are still making potential criminals out of young teens.

Public defender Chris Phillis knows all about this. She defends kids accused of crimes that most people wouldn't consider worthy of jail time.

In her home state of Arizona, for example, "if a 15-year-old touches a 13-year-old's breasts, they are now guilty of a felony crime," according to Phillis. Often these teens are then put on the sex offender registry, lumped in the same category as hardened sex offenders who rape young children.

It's a frightening prospect. But how many kids do these laws affect? An exact number is impossible to know, but Centers for Disease Control and Prevention statistics indicate that about 25 percent of American 15-year-olds have had sex. Nearly 40 percent of 16-year-olds and almost half of 17-year-olds have had sex. But in Arizona, the age of consent is 18, so the statistics tell us that thousands of teens are illegally consenting to sex. Who wants to make criminals out of these teens, just for doing what kids have always done?

Jim Weiers, speaker of the Arizona House of Representatives, doesn't seem too bothered by laws that could send teens to jail. He says even though his state's laws unintentionally result in many kids being treated like dangerous pedophiles, it's not the legislators' job to consider "each and every individual case" that the law might affect.

But it's these individuals whose lives are wrecked by these laws. When Garrett Daley was 14, his 9-year-old adopted sister Devon said Daley touched her inappropriately. Their mom, Nance, called the police, and he was arrested on child molestation charges.

But only days after the arrest, Devon told police that she had lied and that she had been the one who made the inappropriate advances, not Daley. Before the Daley family adopted her, she had been sexually abused, and in her new family environment she had been confused and did not yet know proper boundaries.

Devon might have lied, but it was too late for Daley. Rather than go to trial and face the prospect of years in prison, he took a plea deal that included probation and mandatory registration as a sex offender.

Daley's experience is common, according to Arizona State Sen. Karen Johnson. Kids "are told they'll go to jail … unless they accept this plea, and the plea almost always requires lifetime sex offender registry." What choice do they have?

Daley avoided a prison sentence, but he didn't realize his plea bargain would put him in a different kind of jail. Once you're on the sex offender registry or on probation, your life is wrecked, says Phillis. Young sex offenders "can't go anywhere children frequent. So that's McDonald's, that's Jack-In-The-Box, that's a movie. They can't be a Boy Scout, they can't be a Girl Scout." Life, as they know it, is over.

And it's not just the child whose life is affected. "This whole entire family has been financially and emotionally devastated," Nance Daley said.

It's hard to see how Garrett Daley poses a threat to his community; it's also difficult to get politicians to take cases like his seriously. After all, when is the last time you heard a campaigning congressman demand that sex laws be weakened?

Weiers acknowledges that sometimes the law isn't fair, but there's not much he can do about it.

"If you're not overreaching, you're going to be accused of underreaching," he said. "There's not a piece of legislation that I've seen that is going to be perfect, period."

And so those laws intended to protect victimized children end up creating new victims like Daley.

His stepsister feels terrible about what she's put him through.

"He has gone through everything for me," Devon said. "Thank you. That's all I can say. He's ruined his life and I can keep on going with my life."

ABC news associate producer Chris Kilmer contributed to this report.