Lis On Law:Sex, Lies and a Book Deal?

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First, DNA evidence cleared John Mark Karr of killing JonBenet Ramsey. Then, a California judge dismissed child pornography charges against him when the computer he’d allegedly used to download illegal images was lost. Now, John Mark Karr has begun entertaining offers from talk shows. Can a book deal be far behind?

You may be thinking — this is no time to talk about book deals. Shouldn’t we be discussing how to get this creep off the street? After all, John Mark Karr is someone who has expressed fascination “with not only JonBenet Ramsey but with the sexuality of young girls in general,” has lied in lurid detail about molesting and killing the six-year-old Ramsey, was suspected of downloading kiddie porn, and was found by law enforcement officials in Thailand, a well-known destination for “sex tourism.” There must be something to prosecute him for, right?

It may come as a surprise, but absent the disclosure of some new and incriminating information, the answer is probably “no.”

While it’s true that Karr made false statements to both Federal and Colorado state law enforcement officials, the law in both jurisdictions requires such statements to have been made with knowledge they were false. Boulder, Colorado District Attorney Mary Lacy has said publicly that “John Karr himself sincerely believes that he killed JonBenet Ramsey. There’s no question in anybody’s mind about that.”

A senior F.B.I. official who helped locate Karr in Thailand echoed that sentiment. “He appears delusional,” said the official. Comments like that would provide Karr with a very sound defense against charges that he “knowingly” misled law enforcement officials.

But what about the fact that Thailand is a well-known destination for “sex tourists” looking for underage prostitutes? Can’t someone like Karr be prosecuted for traveling overseas to prey on children? Federal law imposes up to a 30-year jail sentence on anyone who “travels in foreign commerce, and engages in any illicit sexual conduct with another person.” The fact is, however, there is no evidence that Karr actually engaged in sex with a minor while he was there. He may have thought about it — and even engaged in “grooming behavior” (the child molester’s equivalent of “courting”) as D.A. Lacy has stated — but it normally takes more than that for charges to be filed.

So, why not lock this sick individual in a mental institution? For the protection of all of us, there are standards that must be met before such an extreme remedy can be deemed Constitutional. Generally speaking, there must be a fair hearing, there must be a finding of “dangerousness to one’s self or others,” and a demonstration of mental illness. In addition, according to the U.S. Supreme Court’s holding in Kansas v. Crane, the state must prove offenders have “serious difficulty” controlling their behavior.

John Mark Karr may present a significant risk, but establishing that he has “serious difficulty” controlling his behavior would be difficult, given that he is 41 years old and has never been convicted of a crime. In fact, several state statutes specifically require a previous conviction before involuntary commitment is considered appropriate. In California, for example, in order to be involuntarily committed as a “sexually violent predator,” one has to have been “convicted of a sexually violent offense against two or more victims.” Based on what we know, John Mark Karr simply doesn’t fit the bill.

As for the possibility that Karr might soon profit from sales of a book, you may be wondering, aren’t there laws that make that sort of thing illegal? It’s true there are so-called “Son of Sam” laws (named after the notorious killer David Berkowitz) that are aimed at preventing felons from profiting by selling their stories, but history has shown such laws to be constitutionally vulnerable under the best of circumstances.

For example, in a 1987 case that eventually made it to the U.S. Supreme Court, Simon and Schuster sued the New York Crime Victims’ Board to prevent enforcement of the original “Son of Sam law.” In an eight-to-zero ruling, the court found the law to be unconstitutionally broad, in part because it would have prevented the publication of legitimate works such as The Autobiography of Malcolm X and Thoreau's Civil Disobedience. California's "Son of Sam law" was struck down by the California State Supreme Court in 2002 based on similar reasoning — Nevada’s Supreme Court followed suit in 2004. Meanwhile, other states have simply stopped enforcing “Son of Sam laws” altogether.

But even if Karr isn’t a convicted felon and “Son of Sam laws” don’t apply, should someone like him get paid for droning on about his sick fantasies? As a matter of fact, ABC’s "Good Morning America" reportedly had a similar question — and it scrapped a planned interview with Karr.

Could it be a sign of things to come? Don’t count on it — the "Today Show," "Larry King Live," "On the Record w/ Greta Van Susteren," and the "Dr. Keith Ablow Show" have all provided Karr with a forum for his twisted ramblings — and if the ratings hold, others will no doubt follow.

Ultimately, there may be nothing to do about John Mark Karr except monitor his whereabouts and keep him away from our kids. But one thing is certain — if John Mark Karr ends up on the bestseller list, it will be because we, the book-buying public, put him there. As Edward R. Murrow once said, “No one man can terrorize a whole nation unless we are all his accomplices.”

Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently a professor of law at the New York Law School. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985. In addition, she earned her Juris Doctor from Harvard Law School in 1987. To read the rest of Lis's bio, click here.