Megan's Law - 12 September 1997

One of the strangest but most typical claims to fame in America is to have a law named after you.

Much of the vital history of this country can be learned from the troubles that brought such laws about. It’s nothing you can contrive, it’s entirely accidental, and it happens usually to the most obscure, most humble people who, just when some burning controversy is beginning to singe the country, first appeared as victims of injustice.

Far and away the most famous example is that of an old black man, known at the time and in the books as a negro slave, property of a lady in Virginia, which of course as a southern state was a slave-holding state. His ominous name was Dred Scott. The Virginia lady sold him to an army officer who took him as a personal servant into his subsequent army posts. First, up in the north, one in Illinois, the next in Wisconsin – both of them what were known as free soil; that’s to say not slave states.

Scott married, he had two children, and he and his family then went with the soldier master south into a slave state. He was declared by a Missouri court to be still a slave. He sued for his freedom and his trouble became an enormous bone of contention between the north and the south.

The case finally went to the Supreme Court, which ruled first that negroes were not and never had been citizens and, therefore, had no right to sue in a federal court. Secondly, the fact of his having lived in a free state did not mean he was free forever. On the contrary; once he’d returned to a slave state, he was a slave once more.

It’s hard to think of another ruling by the Supreme Court in the 19th Century that so enflamed the protagonists on any issue. The slave owners rejoiced, the northern abolitionists seethed. All this happened in 1857, only three years before the outbreak of the Civil War – which, need I say, the Dred Scott decision did much to hasten. That 62-year-old black man is in the history books forever.

In our own time, there’s the case of an even more humble and lonely person in 1964, one Ernesto Miranda: 23 years old, an indigent, barely literate Hispanic American who never got through elementary school.

He was arrested at his home in Phoenix, Arizona, and taken at once to a police station as a suspect in a rape kidnapping case. He was so identified by the victim and then taken to an interrogation room where for two hours he maintained his innocence, but at that point, apparently, he gave in. Anyway the police emerged with a signed confession, which was used at his trial where he was found guilty.

An appeal was taken in the end to the Supreme Court on the ground that Miranda had never been told he was not bound to testify against himself, which the confession seemed to do, and that he wasn’t told he had the right to a lawyer.

The Supreme Court ruled in 1966 that anyone taken into custody has a right to remain silent and the right to a free court-appointed lawyer. In a famous phrase, which produced ructions across the state courts (for the Supreme Court has no judging power over the criminal codes of the separate states), "No statement obtained in the atmosphere of a police station can truly be the product of a defendant’s free choice".

Forever afterwards, this law (still resisted in some states) has been known as the Miranda Law, and to this day it symbolises to some people the determination of the system to treat the most lowly criminal suspect with dignity. To others, it is a dangerously sentimental swing away from even-handed justice, giving criminals an unfair advantage at the expense of their victims.

Most recently, in fact this week, a federal appeals court said yes, a Connecticut law known as Megan’s Law is constitutional. The issue is, I gather, being tested in other countries.

Three years ago, a known (that’s to say convicted) child molester strangled and raped a seven-year-old girl, Megan Kanka. Out of this gruesome incident, many states by now, maybe most states, adopted a law saying that a community has a right to notify a neighbourhood of the presence of a sex offender.

Connecticut took a challenge to it, up to a federal court, which ruled that "The law protects society more than it punishes a known offender". And now, the day before the upholding of Megan’s Law, a newspaper article written by a young Jewish student at Yale University may (it’s my serious guess) may well end up with the inscribing in the books of the Elisha Hack Law.

What it will be, I don’t know, but it touches on a subject which has not yet, I believe, ever gone to the Supreme Court. But it’s an issue that has festered in the minds of millions of parents ever since, not so many years ago, schools and colleges in some states began to issue free condoms to their students. Of course it’s a practice that hasn’t been accepted and never will be accepted by the whole of society, and there has been in this country not the first suggestion of harmony between the people who think of it as a mark of advancing liberty and the larger populous that sees it as a flagrant symptom of the moral decadence of the West.

A Yale freshman, one Elisha Dov Hack, calls his piece "College Life Versus My Moral Code", and the subtitle, "Why I Refuse To Live In A Yale Dorm" (Dormitory). Yale University, the third oldest university in America, founded in1701, has gone through some troubling times lately what with the rise of the hippy, then of the draft evaders, then a sizeable body, sizable enough to cause campus chaos for a time, against the Vietnamese War. It has suffered, as many other colleges have done, from attempts to unionise most departments of university life from janitors to graduate teachers.

Mr Elisha Hack, however, is I believe the first student to have come out in a national newspaper to defy a new university rule, which requires every new student to spend his/her first two years – freshman and sophomore years – living, as they say in England, in college; as it says here, in the college dormitories.

Mr Hack has been joined in his private protest by two other freshmen and two sophomores who, I predict, will soon be known as the Yale Five.

When young Mr Hack entered what was to be his dormitory – one specially for incoming students – he wrote, "I literally saw the handwriting on the wall. A sign entitled ‘safe sex’ told me where to pick up condoms on campus. Another sign touted a hundred ways to make love without having sex. If you live in the dorms, you’re expected to accepted these standards as the framework of your life. It happens that my friends and I have had years of rigorous religious training and we’ve watched and learned from our parents. Why is Yale making it particularly hard for students like us to maintain our moral standards through difficult college years?"

He mentions that so recently as the 1950s, students who allowed guests of the opposite sex into their dormitories were subject to expulsion, "We acknowledge that today’s general morality is not that of the '50s. The Yale Five simply asks permission to live off campus."

The dean of Yale was quoted by way of rebuttal saying the college cannot allow anyone to – I quote – “Absent themselves from the community”, it being left to be assumed that a college community today is, must, be multicultural and, I guess, irreligious.

Mr Hack quotes the dean making the rather cryptic statement, that, “Yale’s residential colleges carry a moral meaning". The meaning being, Mr Hack writes, is "anything goes". He explains very simply why he and his four supporters cannot in good conscience live day by day in a place where women may stay overnight and where men and women share beds and bars. "We were brought up," he writes, "to practice modesty and sexual abstinence before marriage."

All new students to Yale receive a welcoming brochure which proclaims that Yale has a deep respect for the continuity that its history provides – a continuity of constant reflection and reappraisal –to which Mr Hack responds, "Yale ought to reflect on and reappraise a policy that compels us to compromise our religious principles".

Well surely Yale can stretch its famous tolerance to tolerate such oddities as young men and women brought up to practice modesty and sexual abstinence. But I think it would be a pity if, to get out of an uncomfortable situation, Yale made an exception in this case alone. It affects not only Jews but Catholics and Muslims and even atheists who do not believe in freewheeling sex.

Surely the founding fathers, when they said that the American nation must not have an established religion, did not intend the basic American society that everyone must live in to be a compulsorily irreligious one for the young? Even if this exception is allowed, there’s trouble ahead.

As distinct from some non-Latin countries of Europe, where churchgoing has gone down to as little as 6% of the population, 56% of Americans claim to be full-time churchgoers. They and many of their atheistical friends may not meekly surrender to Yale’s dictate that the basic community young Americans must for two years at least learn to live in is multicultural, irreligious and amoral, if not immoral.

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