Can Nothing Be Done About the Pedophile Blogger?: How the Law Deals With Dangerous People

By SHERRY F. COLB
Monday, Aug. 06, 2007

Jack McClellan, a man who proudly calls himself a pedophile, blogs about his sexual interest in little girls and calls his readers' attention to various locations where interested parties can find large numbers of children (including international cities where children tend to be unsupervised).

Parents in Los Angeles, where McClellan lives, have reacted to the blog by, among other things, publicizing where he was "last seen" and otherwise attempting to keep track of his travels.

In addition, parents and others have expressed the wish to do more to protect children from this self-described pedophile. Some would doubtless like to lock him up (or, at the very least, prohibit the website). In this column, I will consider the question of whether or not such aspirations are realistic and analyze how McClellan's blogging resembles and differs from other threats to children's safety.

Status Versus Conduct

The most obvious avenue for incarcerating a pedophile is through criminal prosecution. Many pedophiles act on their impulses and molest children. When they do, law enforcement officers need only find them, turn them - along with the evidence - over to the D.A., and - if all goes well - see them convicted and sentenced to prison time.

For those who would like to confine child molesters in prison, however, the blogging pedophile poses a challenge. At least by his own account - an account that has yet to be contradicted with concrete evidence - McClellan has not molested any children, despite his evident urge to do so. To incarcerate a person because of his desires - when he has not acted on those desires - is to criminalize a status: the state of being a particular way. The U.S. Supreme Court said in Robinson v. California, however, that criminalizing a status (in that case, the status of being a drug addict) violates the Due Process Clause of the Fourteenth Amendment.

Accordingly, under our Constitution, a man's mere feelings of sexual attraction for children cannot, without more, form the basis for confining him in a cell. But what can one do to respond to the risk that a pedophile will molest children in the future?

Numerous states have passed legislation to address this contingency. Such laws permit the confinement of child molesters as sexual predators even if they have not been convicted of any offense or, if they have been convicted, if they have already finished serving their sentences. Repeat child-sex-offender Leroy Hendricks challenged the constitutionality of such laws in the early 1990's, but he lost, and the U.S. Supreme Court, in Kansas v. Hendricks, upheld the Sexually Violent Predator Act.

A majority of the Justices characterized confinement under the Kansas law as a valid form of "civil commitment," comparable to the institutionalization of mentally ill and dangerous people (including those found not guilty of a crime by reason of insanity).

Confining a person as "dangerous" simply by virtue of his desire to do something criminal, however, might not appear very different from confining a person because of a status. What is a drug addict, after all, besides a person who feels a strong urge to use drugs? To say that a person is dangerous, then, requires some proof that the person is likely to act on his urges.

McClellan's Blog

Has Jack McClellan done anything on his blog to suggest that he poses a danger distinct from that posed by every person who has a strong urge to commit a criminal act? The institution of parole hearings might shed some light on how the blogging pedophile might be evidencing something beyond an attraction to children.

When prisoners come up for parole (or "supervised release"), the board's inquiry consists in large part of determining whether the prisoner has changed into the sort of person who will no longer commit crimes. One way in which prisoners can demonstrate such evolution is by owning up to the past crime and showing remorse for it. When, by contrast, a prisoner appears before the parole board and unapologetically declares that he is innocent or that what he did was harmless, he is unlikely to find himself paroled. Reform requires one to admit that "mistakes were made," and that the person who made them sincerely regrets them.

Like the unapologetic candidate for parole, however, McClellan seems to revel in his desire to have sexual contact with children. By calling himself a pedophile, he indicates that he is not ashamed to feel the way he does but instead wishes to broadcast his desires. He is, in a word, defiant about his inclination to commit what most people view as a violent act that violates the physical and emotional integrity of innocent children. He is, perhaps more importantly, helping other pedophiles who want sexual access to children by reporting where a reader can find large groups of them.

A Map for the Child Molester

One important factor in judging McClellan is determining why he does what he does. Why does he provide information about where readers can find children? A relatively innocent explanation might be that he knows other pedophiles are always trolling for fantasy material, and he offers them locales for gathering such material. (I say "relatively" innocent, because I do not believe that staring at children to memorize their faces for later masturbation is an entirely harmless activity - for one thing, a child might notice a pedophile's stare, understand its meaning at some level, and experience a feeling of discomfort and self-consciousness that might color his or her understanding of sex in the future.)

If McClellan's goal were simply to ensure that people know where they can observe children in their native habitat, however, then listing locales would appear to be unnecessary. Without really trying, most of us regularly encounter children during the course of an average day. Indeed, for this very reason, pedophiles attempting to avoid re-offending after release report finding it difficult to stay away from places where children might appear.

It seems plausible - perhaps most plausible - then, to conclude that what McClellan is doing is providing a guidebook to people who hope to act out their pedophilic fantasies, a "Zagat's" for child-molesters. People who hope to victimize a child are more likely to succeed in their criminal endeavor if they target places containing large numbers of children (given the predictable chaos that often reigns over such places). If this is McClellan's goal in blogging - encouraging and facilitating the sexual violation of children - then one can properly deploy the criminal law to stop him.

What Sort of Crime Has McClellan Committed?

Traditionally, facilitating (or, in the criminal law lingo, "aiding and abetting") a criminal enterprise through speech is a legitimate target for law enforcement efforts. Suppose, for example, that you directed a shoplifter to steal from the neighborhood convenience store at 4 PM, because that is when the security guard takes his daily nap. If the shoplifter went ahead and followed your advice, you could find yourself prosecuted as an accomplice to his theft.

Even if the shoplifter decided not to go through with his plan, moreover, a prosecutor might still be able to pursue you for attempted larceny. It is this latter possibility that would seem most promising in a case like McClellan's, because it might be quite difficult to link his postings with any particular instance of child molestation.

A rough analogy is the case of the Nuremberg Files, an anti-abortion web site that, among other things, posted the names of abortion providers. The site also included a line through the names of those providers who had been killed by anti-choice terrorists. As I discussed in a column that addressed this case, such "speech" - though it does not expressly state "kill these people; they deserve to die; here is how you find them" - seems strongly to imply these sentiments. And the U.S. Court of Appeals for the Ninth Circuit agreed, in the en banc decision in Planned Parenthood v. A.C.L.A.

Another close analogy is to the web site "whosarat.com." This web site lists the names of informants and others cooperating with law enforcement, information gathered from documents that are technically public but to which few people have ready access. Some have attacked this site as inciting criminals to harm informants by giving them the information that they need to do so. The list also intimidates potential informants with the threat that their identities will be published on whosarat.com if they assist the police. Contributors to such a site, in my view, could be fairly characterized as having engaged in attempted witness tampering.

The Contrast Between Sites Defended as "Shaming" Sites and McClellan's Site

As with other cases involving speech, the crucial question is how clear the blogger's intentions are. In the Nuremberg Files case, the court found unpersuasive the characterization of the website as simply acting within its First Amendment rights to provide information to "shame" people associated with abortion (and provide a record for future legal action), much as a website listing companies that hire sweatshop labor might do. In the "whosarat" case, one could similarly reject defenders' claims that the goal is simply to expose and "shame" the people engaged in exchanging dubious testimony for lenient treatment by the criminal justice system.

The pedophile's blog is different. He is not even ostensibly attempting to shame anyone. He does not hope to deter parents from bringing their children to the various places he lists. On the contrary, he likely wants the children to remain there, so that his readers will find his information accurate and helpful and "tune in" to future postings.

Why does the pedophile want to let people know where to find children? Is his goal to help people locate victims for molestation? Many suspect that it is. If one could prove as much in a court of law, then it might be possible to prosecute him for deliberately exposing children to sexual assault and molestation.

It is important to avoid censoring even the most offensive speech, even when it takes positions in conflict with existing law. But if a site like McClellan's is intended as a map for child molesters, then it could be said to step over the line from advocacy to criminal facilitation.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.