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August 27, 2007

Stopping Pre-Crime In Its Tracks (OT)

August 26, 2007 update: McClellan has announced he’s leaving California, claiming “I can’t live here under this Orwellian protocol” (article)

August 4, 2007: Friday, a California judge ordered that Jack McClellan, a self-proclaimed pedophile who posts photographs of young girls (not pornographic) on his web site and has publicly said that he would have sex with toddlers if it were legal – but has never been convicted of a crime – must stay at least 30 feet away from anybody under the age of 18.

The restraining order was granted at the request of two attorneys, on behalf of their daughters (neither of whom has had any contact with McClellan). One of the attorneys, Anthony Zinnanti, said afterward “Today, this is for Polly Klaas, Samantha Runnion [two California girls who were abducted and murdered], for the kids that have been victims of people like McClellan.”

Just a note here: I mentioned this case in my newspaper column, and asked readers for their opinions. I might include any comments made here in a future column, but I won’t use your name unless you expressly tell me I can.

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24 Comments »

  1. So what’s his website?

    (Wow, even I found that offensive!)

    Comment by Anonymous — August 5, 2007 @ 2:56 am

  2. The decision seems reasonable, given the nature of the statements. Imagine if he had said “I’d murder my wife, if it were legal” I don’t see why she couldn’t ask for a similar restraining order. (Feel free to quote me on that)

    Comment by Steven Hunter — August 5, 2007 @ 10:26 am

  3. It’s hard to imagine that McClellan was naive enough to believe that he could make his pedophiliac desires (though not behaviors) publicly known and not suffer consequences of some sort. Though he’s committed no crime, he had to know that public distrust and anger were a near certainty.

    Now he has (from his perspective) the worst of all worlds: without ever indluging his unacceptable desires, he is nonetheless hated and feared. What could his motivation have been? Might he derive some odd enjoyment from provoking public ire while believing he cannot be punished? Could he have hoped to spark a public debate about “pedophile rights” ?

    As for the court order:

    Pedophiliac sex is monstrous, punishment after the fact is near to pointless. No jail term for the perpetrator can undo the damage done to the child; prevention is imperative. McClellan should know that to ever indulge his desire is unthinkable; far from flaunting it on the internet, he should seek counseling and try to be free of it.

    At the same time, my first thought is that the court order – to stay 30 feet from *anyone* under 18 – is probably impossible to comply with, short of moving to a mountain top or something. Without asking the age of *everyone* he passes on the street, it is impossible for him to know whether or not he is in compliance. There may be more to the court order than is mentioned here, but on the face of it, someone determined to have McClellan locked up could simply sneak up on him, a toddler in tow, and snap a picture.

    By legally voicing the desire – but not the intention – to commit a terrible crime, McClellan has put himself in great legal peril. He has created a situation for which no universally fair solution exists. He can scarcely be surprised that, when the choice is his own freedom vs. the safety of the children who live around him, he got the short end of the stick.

    Comment by Brian Leahy — August 5, 2007 @ 2:13 pm

  4. It makes sense that if he said “I’d murder my wife, if it was legal,” his wife could get a restraining order. But I don’t see how Anthony Zinnanti can get a restraining order that covers all those under 18 years, and not just his own daughter. Even an order covering just his own daughter seems a stretch if McClellan has said nothing about Zinnanti’s daughter.

    As Brian already pointed out, this is impossible to comply with. 30 feet? Sounds like he can’t set foot in a grocery store or restaurant.

    Comment by Autumn Harvest — August 5, 2007 @ 4:05 pm

  5. P.S. Bill, feel free to use my name, although “Autumn Harvest” is not my real name. My real name is I. P. Freely. 🙂 So pick whichever one you want.

    Comment by Autumn Harvest — August 5, 2007 @ 4:07 pm

  6. In essence, this is the functional equivalent of judicial expatriation. He cannot live anywhere at all without risking violation of the restraining order. Even if he moves to a shack out in the middle of nowhere, he might accidentally cross paths with a teenager. The only solution for him, short of getting the order overturned, is to leave the country.

    In short, while I agree there’s no fair solution, I find the actual solution to be disingenuous in the extreme. If you’re going to make it impossible for someone to live in the jurisdiction, then you have the legal and ethical responsibility to actually go through the legal process of booting the person out. Don’t play coy games about having to stay 30 feet away from anyone in a broad class of people.

    Comment by Dave Van Domelen — August 5, 2007 @ 5:58 pm

  7. McClellan is saying that he’d have sex with toddlers if it were legal. It’s not legal. Therefore, isn’t he saying that he will NOT have sex with toddlers?

    Why is it reasonable to impose prior restraint upon someone who is telling everyone that he WON’T commit a crime?

    Zinnanti said this was “for the kids that have been victims of people like McClellan.” It seems that McClellan hasn’t actually victimized anyone, and he’s saying that he won’t. How does it make sense to restrain him?

    I’d like to see the legal system putting in this much effort to go after actual pedophiles (and other criminals) instead of wasting time and effort like this.

    Comment by Anonymous — August 5, 2007 @ 6:28 pm

  8. If it were legal, I would take away all of the money Pat Robertson has made with faith healing, because I think it’s dishonest and a form of theft.

    The above is true, but it doesn’t mean that Pat can get a restraining order against me. I am a law-abiding person and won’t actually take Pat’s money.

    Feel free to use these comments. My legal name is Carl Fink.

    Comment by Carl — August 6, 2007 @ 1:07 am

  9. This is really scary. The impossibility of compliance aside, the restraining order is punishment for thought crimes. Even calling it a thought “crime” is stretching it—McClellan hasn’t threatened anyone specific; in fact, I wouldn’t call his statement a threat at all. He’s not even saying sex with toddlers *should* be legal!

    In principle, this makes it a crime to argue against existing laws. If saying “If X were legal, I’d do it” is just cause for punishment, then saying “I think X should be legal.” is even worse, and “I think the laws regarding X should be changed” not much better.

    Feel free to use my name. I’m Norwegian, if it matters.

    Comment by Jon Heggland — August 6, 2007 @ 4:21 am

  10. Jon – very interesting point, I hadn’t thought of it that way.

    Comment by Brian Leahy — August 6, 2007 @ 7:20 am

  11. I find this ruling ridiculous, prima facie. As Jon said, it’s not only unreasonable to expect compliance, it’s simply unreasonable, period. I can’t see this order holding up under appeal.

    Comment by Powers — August 6, 2007 @ 8:15 am

  12. I thought one of the main points of criminal laws was to prevent people from doing things they otherwise would do.

    Comment by Hunt — August 6, 2007 @ 9:04 am

  13. That’s a good point, Hunt. It’s just occurred to me that I might rob a bank if it was legal. I hope I will not now be banned from entering banks.

    This ruling reminds me of a story I heard earlier this year. In Florida’s Miami-Dad county, convicted sex offenders can’t live within 2500 feet (that’s about half a mile) of any place where children might gather—schools, swimming pools, parks, etc. . . That was impossible to comply with in any populated area, and Florida actually ended up “housing” the released sex offenders first in an empty lot, and then under a bridge.

    Comment by Autumn Harvest — August 6, 2007 @ 10:03 am

  14. Hunt: yes, but this isn’t a criminal proceeding; it’s a civil order.

    Comment by Powers — August 7, 2007 @ 7:11 am

  15. Powers: I think Hunt’s point was that every criminal law prevents people from doing things they would otherwise do. So the fact that there’s some guy who says that the criminal law is deterring him from being a pedophile is no more shocking (legally, not morally) than the fact that the law is deterring me from robbing a bank, or punching some jerk in the face.

    Comment by Autumn Harvest — August 7, 2007 @ 9:04 am

  16. I’d drive drunk if it were legal, and I’d speed and wouldn’t wear a seatbelt. Should I be banned from being near cars because I admit that?

    Comment by Derek — August 7, 2007 @ 11:49 am

  17. It’s certainly true that ultimately, McClellan is being penalized for something he never did, and only speculatively suggested he’d like to do, *if* it were legal.

    And before I go on, let me add that I abhor the abuse of authority, by judges, police, politicians, etc. more than anyone I know. Normally, I’d be calling for the lawyers’ heads, if not the judge’s.

    Yet the other crimes mentioned here, bank robbery, drunk driving, stealing money from an evangelist – are all things for which a reasonable remedy can be advanced – jail time, fines, compensation, etc.
    Molesting a child is different; devastating, irreversible, and hence more comparable to murder than to theft or drunk driving (and restraining orders against people who threaten murder are not uncommon.)

    I can’t stop pondering what McClellan’s motive could have been in making his prurient interest in children known to the public. His boldness, even arrogance about professing his desire, hints at a heightened possibility of his acting on it. If he’s already overcome the shame he might be expected to feel about *wanting* to do it, could it mean he’s also more likely to overcome his fear of punishment?

    Sexual desire is, by evolutionary design, frequently able to overcome rational roadblocks. It’s practically a cliche; how many illegitimate children have been conceived, STDs contracted, and spouses betrayed because a rational adult succumbed to lustful urges?

    I think it can be argued that this fact, together with the reality that children are easily manipulated by adults and may not even understand what is happening, might make McClellan’s ill-advised web site a legitimate cause for concern.

    I still say that the court-order is impossible to enforce, but I think the judge’s decision to take some action is not that unreasonable.

    Comment by Brian Leahy — August 7, 2007 @ 7:05 pm

  18. Yet the other crimes mentioned here, bank robbery, drunk driving, stealing money from an evangelist – are all things for which a reasonable remedy can be advanced – jail time, fines, compensation, etc.
    Molesting a child is different; devastating, irreversible, and hence more comparable to murder than to theft or drunk driving (and restraining orders against people who threaten murder are not uncommon.)

    But he didn’t threaten anything. If he had said “I am going to molest this young child and that one” absolutely issue a restraining order, no question. But this is equivalent to me saying “I’d murder somebody one day if it were legal” and then being issued a restraining order saying I could never be around anybody.

    Comment by Greg F — August 7, 2007 @ 11:20 pm

  19. Living in So. Cal where this is major news, I can clarify a few things. 1: The Attorneys that filed for teh restraining order were simply trying to keep McClelland out of their town of Santa Clarita (North of L.A. proper). It was the judge that expanded the order to all children.

    IMO this is unenforceable.

    I have mixed feelings about the whole mess and he may just be trying to push the limits of the 1st amendment.

    That said, if he is a danger to children, he should be locked away.

    You can use my comments if you want.

    Comment by Craig — August 8, 2007 @ 12:26 am

  20. It seems to me that McClellan says the things he does just to get attention.

    It also seems to me that these lawyers filed for this order just to get attention (would they have made announcements to the press otherwise?).

    … and the judge expanded the limitations of the order just to get attention (why else would you make it unenforcable?).

    So it’s all about getting attention – which just happens to be Southern California’s most precious commodity.

    Comment by brien — August 8, 2007 @ 6:49 pm

  21. One thing missing from this discussion is his web site. Who are the girls whose photos he published? Friends? Neighbors? Children who caught his eye on the street?

    The parents of those children would be completely justified in getting restraining orders against him. I would encourage the judge to restrain him from photographing anyone under 18 without parental permission.

    Comment by DPWally — August 27, 2007 @ 11:30 pm

  22. Has anyone thought about getting this guy some psychiatric help? I’ve heard “lock him up” and “keep him away” from various people. How about trying to treat the problem?

    Comment by Molly — August 28, 2007 @ 9:48 am

  23. He’s an attention whore (excuse the word). He’s doing it solely and completely for attention, and he doesn’t care if it’s good or bad attention.

    Comment by Charlene — August 28, 2007 @ 8:34 pm

  24. As CA goes to vote on the proposed urgency legisalation to disrupt activities such as Jacks, it looks like Jack may have landed a pro bono attorney out of Whittier, CA to help him with his own legal battles.

    More at http://fraudarena.wordpress.com/

    Comment by fraudarena — August 30, 2007 @ 11:42 am


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