Tuesday, October 25, 2011
I continue looking at Ezzat Fattah’s 1992 collection of essays entitled “Towards A Critical Victimology”.
I am specifically focusing on Lynne M. Henderson’s acute and comprehensively noted 1985 article “The Wrongs of Victims’ Rights”, which constitutes its own chapter in Fattah’s book.
We left off in the immediately prior Post with both the ‘conservative’ Right and the ‘liberal’ Left seeking to engorge the Sovereign police power, and actively seeking to weaken both theConstitutional protections for the accused AND the profoundly vital principles underlying the Framing Vision that underlies the Constitutional approach to Citizen rights against the arbitrary deployment of that police power.
Henderson notes (p.103) that the original Right-Republican valorization of Victim-Rights (V-R) made a number of assumptions: 1) that the focus was to be on individual-against-individual violent crime (often referred to as ‘street crime’); 2) that committing these crimes was a matter of individual choice and was ‘evil’; 3) that legal ‘reforms’ had to be introduced in order to enhance the “efficiency of the process” in the matter of adjudging these increasing numbers of criminal cases; 4) that in order to achieve more “efficiency” criminal courts should resort to a more “summary” type of process; 5) that clearing away this crime would be a “guarantor of social freedom”.
I would offer a few thoughts on those numbered points.
Point (1) sidesteps huge swaths of ‘victimless’ crime such as white-collar, financial, and even political crime. It also introduces this ‘victimless’ trope; as if white-collar crime doesn’t victimize huge swaths of the population (for example, the financial crimes that have led – through the 2008 meltdown – to the nation’s frightening fiscal mess). But the large ‘victimless’ crimes do not produce a telegenic individual ‘Victim’ who can be placed before the cameras to whip up public opinion in support of the ominously dangerous ‘reforms’ which are actually regressions against the rights of the accused Citizen that are enshrined in the Framing Vision and the Constitution.
Note also that at this juncture “violent street crime” is not something that the Left-‘liberal’ Democrats can be comfortable with: there is great danger that the focus, intentionally or not, will be on urban black communities (a now-embraced Democratic political ‘demographic’).
And that this “violent street crime” did not originally envision ‘sex’ crimes, nor did the ‘street’ venue allow for any ‘sex’ crime focus except for the clear event of ‘stranger rape’.
More deeply, this entire ‘crime’ focus threatened to expose for public deliberation the entire ‘freedom’ trope valorized by the Dems’ embrace of pretty much all of the Boomer-youthy 1960s ‘revolution’ against conformity, social custom, tradition, and anything perceived to be ‘old’.
Point (2) re-introduces into major political play the long-simmering and unsolved question of the sources or causes of crime (considered not from the point of view of religion as ‘sin’ but sociologically speaking). Is crime to be considered primarily as a willful and deliberate (and ‘sinful’) choice by the individual regardless of his/her social circumstances, or is crime to be considered primarily as being ‘caused’ by social circumstances (poverty, ‘oppression’) which pretty much force the individual into crime such that the perpetrator is him/herself actually a ‘victim’ of those forces and circumstances?
The Right is leaning toward deliberate-choice, the Left (echoing vaguely the civil-rights era experience) is leaning toward ‘victim of oppressive social circumstances and forces’.
The Right is also including “evil”: the individual’s deliberate choice to commit a crime demonstrates deliberate embrace of evil – the evil potential in oneself and the ‘evil’ that will result from committing a crime and weakening society. But this position also implicitly condemns the whole 1960s-type ‘freedom from conformity and society’ dynamic that was by the 1970s fueling a general social disregard for conventions, conformity, tradition, and even laws.
Point (3) commits the so-called ‘conservative’ Right to weakening the Constitution in order to more quickly and ‘efficiently’ re-assert not only the government’s but even society’s and American culture’s traditions and laws against the Boomer ‘freedom-from’ revolutions. Since the ‘accused’ here is envisioned as either anti-conformist and wild Boomer youth or black urban street-criminals, the Right is now going to slide far too easily toward an anti-accused stance which is profoundly anti-Constitutional and – you can legitimately say – anti-American.
And that the vital and fundamental focal point of the agon and drama of criminal process and criminal trials is now ominously and lethally shifted. It is shifted from a careful ascertaining as to whether the accused (a) is by rational consideration of the evidence actually guilty of committing a charged criminal ‘act’ and thus liable to the Sovereign police-power, or whether (b) the accused is demonstrably innocent and not liable to the Sovereign police-power. It is shifted to a rapid ‘processing’ dynamic that quietly (perhaps unthinkingly) assumes the guilt of the accused and seeks to support society and re-affirm ‘tradition’ by quickly punishing as many of these crime-committers as possible.
Point (4) expands the implications of Point 3 by introducing an almost military-justice-like emphasis on simply clearing away the active (and vitally ‘traditional’) Constitutional protections that are now seen not as protecting the rights of the accused Citizen but rather as obstructing the efficient conviction of presumptively guilty ‘criminals’ (now no longer seen as ‘defendants’ or even as Citizens-accused).
Thus restrictions on police investigatory procedures and requirements for valid and solid evidentiary material begin to be deliberately weakened.
Interestingly, the V-R advocates also insisted on a reduction in opportunities for plea-bargaining (since such legal maneuvers enabled perps to ‘evade’ the full punishment due their alleged crimes and also – increasingly – enabled perps to ‘escape’ having to be confronted by the tearful victim, which set-piece scene was rapidly becoming an essential mainstay of desired and demanded Victimist legal ‘reform’). But from a purely ‘efficient’ point of view, the plea-bargains were essential to keeping the courts and prosecutors from being clogged up with full trials.
Ditto the Victimist demands for greatly-reduced parole opportunities, which helped to keep the prisons from becoming overcrowded. But, I would say, the 1980s were still a period when the government had plenty of cash (or appeared to) and the solution would be to employ more people in building and administering prisons – so politically there was a substantial upside to offset any loss of ‘efficiency’.
Point (5) adds the almost-obligatory imagined upside or ‘big and good intention’ that is intended to lubricate public opinion into accepting – or at least not actively opposing – this whole welter of ‘reforms’ which are actually i) verrrrry anti-Constitutional, ii) verrrrry anti-traditional in terms of American vision and praxis, and iii) verrrrry liable to create seriously damaging ill-consequences, many of which (as Henderson among many others will point out at the time) are as clearly possible to competent observers 30 years ago as they are becoming clear to large numbers of folks today.
In other words, nobody – including legal professionals, legal scholars, law enforcement agents, assorted ‘experts’, or politicians – can claim today that they are ‘surprised’ (or ‘shocked’) to discover that all of the ‘reforms’ have led to catastrophic consequences. What is true for the financial mess is also true for the SO Mania Regime: the lethal dangers were clear, were pointed out, and were ignored from the get-go.
This goes as well for the mainstream media who were seduced by the easy profits of ‘if it bleeds, it leads’ journalism, which would be shrewdly and endlessly exploited by V-R (and later SO Mania) advocates, ably enabled and assisted by pols hungry for good and cheap PR (which turned out to be verrrry expensive for the country and the Constitution on soooo many levels).
And of course, this whole soap-opera approach handily distracted the American people from i) the increasingly woozy and shaky behavior of the economy (being allowed to outsource and then offshore with pandering by pols of Left and Right to the financial honchos) and ii) the highly alien ‘reforms’ being imposed upon American culture primarily from the Left in terms of the weakening of Family, Parental Role, Maturity, Tradition, Virtue, Commitment, and all that ‘old’ stuff.
And what started out as sort of a Boomer-Hippie desire for ‘freedom’ was becoming throughout the 1970s, under the tutelage of a far more focused and organized radical-feminist advocacy, a concerted, deliberate, and sustained legal and political assault on all those capital-letter realities. (I am not making a cheap, rhetorically nasty accusation here; the cadres gladly – among ‘friendly’ audiences – admit that this is what they were trying to do and have done. I only differ from them a) in refusing to accept their demands and objectives as simply ‘reforms’ and b) in refusing to ignore the potential but lethal consequences that they hid rather than face-up-to but which are now manifesting with intensifying ferocity.)
Henderson notes (p.104) that “20th century conservatives never accepted the Warren Court’s defense of the ‘rights of the accused’”. She is accurate in this; and it is a sad reality that future historians will no doubt shake their heads over: the nation’s public ‘conservatives’ were actually not conserving the vital elements of the Framing Vision at all.
There may be numerous reasons for this (and I don’t want to become so ‘historical’ that we lose sight of the SO focus of the site here) but the bottom-line remains.
There were many powerful forces acting on American society in the post-1970 era, especially a) the economic problems on the world-stage and b) the ever-intensifying domestic political pressure to reject-by-‘reform’ broad and vitally deep elements of the nation’s and the West’s Culture and Tradition, that worked to deform and derange both Conservatism and Liberalism, and all to the detriment (I would say it’s becoming clear now) of the national common-weal in all of its major dimensions.
It is in that context that I see the SO Mania Regime.
Henderson limns the effect of the V-R element’s introduction into criminal process: “Discovery of the crime-victim provided an individual to substitute for the State on the scales of Justice, opposite to the accused, thus making it appear that the ‘balance’ was more ‘equal’”.
She’s spot on here.
So the Question here must be: What ‘balance’? The ‘balance’ between the Sovereign police-power of the government and the individual accused Citizen has always been so clearly in favor of the State that the Framers insisted upon Constitutional and Bill of Rights protections just to give the individual a half-decent chance against the Leviathan that the Framers knew even the American national or State governments could easily try to become.
So then to introduce the ‘Victim’ on behalf of the State, sort of as the baby harp-seal that for so long has been the ‘front-animal’ for fund-raising among animal-rights activists, is hugely and profoundly un-balancing to a balance that was always somewhat unbalanced to begin with.
(And – I’m getting ahead of myself as well as Henderson here – this is all before the radical-feminist lobbies further tailored ‘the Victim’ into being the baby harp-seal for their avowed war not only against American culture but with lethal specificity against American males (half the Citizenry), all males, and patriarchy, thereby indenturing the Beltway pols to deploy the Sovereign authority in an even more un-balancing way against the individual accused Citizen who had now been painted as the monstrous, incorrigible, evil, slavering Sex Offender and his astronomically high recidivism rates.)
Before there was a fake ‘balance’ in news-reporting, there was a fake ‘balance’ – spun as 'balancing' – in criminal law, courtesy of the Right-Conservatives.
In a Note (p.158, number 63) she traces the effects of all that in numbers: in 1970 there were 196,000 people in prison in this country, 97 for every 100,000 of population; in 1980 there were 321,000, 142 for every 100,000 of population; in 1983 there were 455,000 in prison. ( In 2009 there were about 2.3 million imprisoned, about 1 pct of the population, and about 5 million on parole or probation – for a total of about 7.2 million, equaling 3.2 pct or so of the population, which itself has almost tripled since 1970; and equaling about 1 in every 100 adults. )
Note that this does not include the total number of registered sex-offenders, which was estimated at 700,000 in 2010. (And of course this estimate does not include the untold numbers of 'technical' sex-offenders created overnight with the passage of the Adam Walsh Act.)
In a Note (p. 158, number 68) Henderson will make a connection that she perhaps prudently avoids doing in the text of the article: she takes note of “the rediscovery of rape by radical-feminists’ that “ played a key role in the lobbying for ‘reforms’ in the law of rape”.
Even as early as 1985 she could see this development gathering steam.
Because if the “far from dispassionate” (p. 105) effect of V-R participation was evident to her even in (mostly ‘conservative’) 1985, things only got worse – much worse very quickly – as the blending of the radical-feminist War Against Males ramped up, including the toxic ‘reform’ against Objectivity and Detachment in adjudication and jurispraxis.
In 1985 the basic trope was that the Innocent and Helpless Victim was preyed-upon by evil Strangers through violent street crime.
The government, V-R advocates demanded, must see itself as not simply addressing the demands and needs (and soon ‘rights’) of individual victims, but also must see itself as addressing – through the instant individual victim – all of the past victims (of the instant accused or of all offenders) and of all future and potential victims (p.106).
In other words – and what a marvelous ‘hook’ it was, as they might say in the screenwriting trade – the entire country was implicitly involved in any particular case because all people were potential victims. The entire Citizenry was envisioned as being merely a deer-park for perps (of violent street crime). Innocent and Helpless, all (decent) Citizens had to be ‘protected’ by the government, by the wide and robust and efficient deployment of the Sovereign police-power.
Thus, any jurors would be enticed into seeing themselves not as the peers of the accused dispassionately sifting and evaluating the evidence against him, but rather to see themselves as potential victims of the accused, or as the Constitutional protectors of all the (imagined) past or future potential victims of this accused or of any other perp.
And, I add, they would have been ‘influenced’ toward that even before being called to jury duty; the media would have soused all readers or viewers with the lurid V-R stories and the implicit message that anybody could be a victim of the Awful Perp. (I would note here that the Awful Perp was the immediate progenitor of the Slavering Monster Stranger Sex Offender.)
And, Henderson goes on, what were being put forth by V-R advocates were not “demands, desires, or agendas” but rather “rights” – which she characterizes (p. 106) as “undefined, undefinable, vital, essential, urgent, and undeniable”.
And neatly, the effect of the ‘rights-gambit’ (my term) was that a) formal legal objections to all of these ‘reforms’ were legally undermined before-the-fact because a purported ‘right’ enjoys far more legal oomph than a proposed new legal change; it’s the equivalent of giving your demand emergency lights and siren and sending it out into the general traffic.
And, b) she rightly asks Who could then be ‘against’ the Victim? Who could be opposed to the baby harp-seal?
All of this, I point out, profoundly un-balances whatever Constitutional ‘balance’ the Framers were trying to provide and which they saw was utterly essential to provide and maintain. Because for purposes of adjudication, if you were ‘for’ the Victim then you were ‘for’ the broad and deep engorgement of the Sovereign police-power precisely at the expense of the ‘accused’ (now being seen rather as the ‘offender’ and the ‘perp’ even before the trial began).
This is all rather ‘symbolic’, Henderson notes (p.107). Rather than being based on the actual, specific individual accused and the facts of his case, this ‘symbolic’ thinking quickly spins him as merely an instance of a much larger narrative or ‘story’, where there are perps and victims (past, present, or potential), Good and Evil, and only the Sovereign police-power of the government and prosecution stands between ‘you’ and ‘Evil’.
(Again, this is all before the specific SO Mania manipulation of public opinion and all the rest of the frakkery of the Mania Regime starts to kick in.)
“The symbolic imagination successfully avoids more serious debate as to how criminal-justice should be structured and disguises the truly revolutionary nature of the reforms proposed”. (p.107) (Italics mine)
She then examines (in 1985) just what actually is the impact of the crime upon the victim.
What does it mean to be a victim? When does one begin being a victim? When does one cease to be a victim? (This last question has huge parameters, legally but also psychologically and existentially.)
There is, she notes (p.107), “little reliable evidence on the experience of victimization”. (Here she is looking for valid scientific evidence, and not simply the burgeoning pandemonium of ‘victim stories’ to be shared with believers and to shock un-believers.) These, I add, are specifically useful for undermining any traditionally objective and detached consideration of their story and purported plight, and for ramping up a quick emotional identification with the victim regardless of any other facts or evidence.
Henderson (p. 107) raises the matter of ‘pre-existing’ personal weakness or damage that – while it may not contribute to the individual’s having been victimized in the first place – certainly might retard any healthy recovery-response or resilience-potential in any victimized person. I would add here that this is a strongly valid point, especially as it implicates the victim as an existentially responsible human being in effecting his/her own recovery. Rather than simply relying – in the Victim Scenario – upon the prosecution and the Sovereign police-power to deliver ‘closure’ and complete the circuit of vengeance for the victimization.
She agrees (p.108) that sudden and extreme victimization from the more extreme violent crimes (attempted homicide, actual stranger-rape, kidnapping, armed robbery, aggravated physical assault – and that’s the end of her careful list) can create a welter of damaging issues, including the sense of being intruded-upon and the sense of ‘not being home in the world’.
In that last instance, I would point out that human beings have philosophically never felt ‘at home in the world’ completely, and that one of the classic ‘existential challenges’ and also ‘existential responsibilities’ for a human is to continue fruitful residence in a world that is not ever fully going to be one’s ‘home’. Which is not to say that victims are by the very fact of victimization existential failures, but merely to point out that the experience of being victimized brings with it certain intensified responsibilities to the victim-as-human-being. All of this is neatly sidestepped by the V-R emphasis on ‘helplessness’ and subsequent dependence upon the Sovereign prosecutorial police-power to ‘bring’ ‘closure’ to you.
I would also add that if V-R theory here were even more widely and deeply embraced as national policy, it would require the Sovereign police-power and regulatory power to so deeply and broadly terraform the very experience of human existence that humans would never be ‘victimized’ by ‘feeling not-at-home in the universe’. This would be the equivalent of the government guaranteeing that you have a right to go into the water and not get wet. It would also require a Sovereign authority with the wisdom and power traditionally ascribed to God.
It is also an accurate approach to looking at how Victimism, once bolstered by the schematic manipulations of radical-feminism, has already created a National Nanny State seeking to do exactly all that.
And the SO Mania Regime is simply the first essay of such a Nanny-Preventive-Protective State in erasing the Constitutional America and replacing it with the Government-Dependent America.
In that same vein (p.111), claims of ‘social isolation’ following victimization are hard to causally separate from the natural sense of ‘social isolation’ which many persons feel from childhood, and which even more adults occasionally feel – with or without cause – as they go through life among other human beings.
Henderson then goes on to consider the implications of this emerging V-R theory. (p.111)
The consequences of a jury considering themselves as ‘potential victims’ has already been discussed above.
What may be good for a ‘past’ victim is not necessarily good for any future-potential victims. (p.112) A too-harsh ‘vengeance’ – abetted by a court and jury that consider themselves to be not the triers of an accused Citizen but rather the avengers of a self-declared victim – might simply create a more-entrenched and resolute and angry future-perpetrator where one had not existed before. This is not good for any potential-future victims. (And the 'solution' to this was to impose longer prison sentences to kick down the road the 'can' of having created large numbers of more enraged, more hopeless, more 'dedicated' perps through imprisonment.)
I would also note the difference – and it is not small – between envisioning a pool of potential-future victims and envisioning a ‘society’. If American society is reduced to being nothing more than a pool of ‘victims’ and a larger pool of ‘potential-future victims’ (and the SO Mania has only intensified this precise frakkery), then America is profoundly (I would say fatally) weakened as a society, as a commonweal.
In the Victim Scenario we are all nothing but victims (past, present, or potential) or perps (ditto). This is grossly insufficient as a conceptual basis for sustaining a society and a culture. There is no communion, no unitive bond between and among the entire body of the Citizenry; instead there is a divisive fractalization and fragmentation that undermines any sense of common identity or purpose.
Worse, the only thing tying us all together (you couldn’t decently say ‘uniting’ us) is the Sovereign police and regulatory power, acting as ultimate and immediate preventer and vengeance-wreaker on whomever is accused of being a perp. And if we are a society held together by nothing more than that, then we are ipso facto nothing more than Communist East Germany under the Stasi.
THIS cannot be allowed to happen. We can’t let it happen. (And thus the SO community are vitally important to the nation in their work.)
Henderson then goes on to make a professional complaint not often heard (p.113): the ‘re-victimization’ of the victim through the purported horror-stories of police stations where alleged victims are ‘questioned’ or courtrooms where victims are disrespected (or simply interrogated by un-believing opposing counsel) is, she says, “implausible” and “insulting to judges and law-enforcement” personnel.
And I wonder how much this urgent need not to give any grounds to gimlet-eyed advocates that one is ‘insensitive’ has motivated actual emotion-driven miscarriages against the accused in order to mollify the alleged victim.
And I point out again that the 1982 Presidential Task Force on Victims of Crime seems very strongly to insinuate that ‘facts don’t matter’ if you are engaged in the ‘right’ cause. (A trope taken up by radical-feminist elements on the Left not only in the ramp-up to the SO Mania but also in regard to jurisprudence and serious matters of public interest generally; and that entire dynamic has then been taken up in foreign policy.)
She ticks off a list of demands (p.113) by V-R advocates: that suspects remain in custody after arrest and that bail be denied; that there are no ‘delays’ in the trial process; that plea-bargaining either be eliminated or be required to get the alleged victim’s approval; that defense be restricted in cross-examination of victims as to their stories; that exclusionary rules (which govern what is and is not admissible as evidence; and statutes of limitations) be weakened in favor of the victim and strengthened against the accused; that victims be allowed to participate in sentencing; that victims receive not only compensation from the State but full restitution from the accused (once convicted in a system undermined by the prior V-R demands).
She also notes the queasy ‘reforms’ to the Federal Rules of Evidence in this regard. Rule 608 specifically insists that the victim be protected from ‘embarrassment’ and be prevented from feeling that she rather than the accused is ‘on trial here’.
But, she notes, these demands are either constitutionally suspect (to say the least) or else are incoherent in that they work against other demands made by the V-R advocates.
Thus pretrial detention runs afoul of the VIII Amendment’s protections (though, she notes unhappily, the Supreme Court is (1985) becoming more friendly to the idea).
The predication of process upon the victim’s ‘feeling’ (e.g. the victim doesn’t ‘feel safe’ if the accused isn’t in jail) is not a sufficient justification for undermining vital and basic principles of the Western and American justice system.
Additionally, Henderson notes (p.114), that the victim need not make such invasive and lethal demands of the criminal justice system when s/he can always civilly sue the alleged violator. But this, I note, would undermine the ulterior motive of the prosecutorial Right in embracing the Victim movement in the first place: that it was always the objective that the criminal-justice process be deformed and deranged in favor of the Sovereign police-power.
The demanded speed-up of investigation and trial process leaves far too much room for ‘stampede’ (my term) and sloppy police work that could lead to false evidence being presented to courts and juries. (I would say that this result is not purely accidental; there is a heavy scent of premeditated manipulation in this push to rush everything along against the accused.) And again Henderson’s vital and substantial objection holds here: there is no need whatsoever (including the needs of the victim) that can possibly justify the derangement and deforming of vital and utterly foundational principles of American law.
In regard to the restrictions on plea-bargaining, and to many of the other demands, Henderson says (p.119) that if the ‘catharsis and closure’ needed by the alleged victim come to govern criminal process, then there are effectively no boundaries whatsoever to the restrictive deployment of the police-power. If the victim’s personal needs, known provably only to him/herself and inaccessible to anybody else’s objective review, are allowed to govern in the deployment of the police-power, then there are no more boundaries on police and courts and prosecutors then there were in the horrific days of ‘spectral evidence’ in the witchcraft trials. This then regresses 1787 to 1692 and I defy anybody to claim and demonstrate that that is ‘progress’.
Ditto the ‘reforms’ to the Exclusionary principles that govern what is admissible as genuinely useful evidence and what is not. And which would include the gutting of the Statute of Limitations that was precisely erected to compensate for the inescapable human realities that evidence and memory – especially ‘eyewitness’ evidence – degrade over time until they can no longer be considered reliable or accessible to detached and objective examination and assessment. (Of course, the V-R and Mania comeback is that courts must NOT be detached and objective, and that ‘feelings’ and ‘memories’ must be presumed to have probative evidentiary value ‘just because’. Nor would any less-than-angelic prosecutor refuse such manna from … hell, I would call it. )
And (p.121) at what level of court process does the victim deserve closure? At the trial level only? At the subsequent appeals levels? Will an accused’s entire adjudication process, throughout all levels from trial to the various levels of higher appellate review, be skewed against him? Yet if a case is reversed-remanded at a higher level, how would a victim’s ‘rights’ apply then?
And whence is derived the ‘right’ of the victim to have the government act not on behalf of Law or Society but simply as the personal instrument of vengeance for the individual victim? (p.121) In any event, is any such advantage to the victim to be presumed to trump and outweigh the vast Framing and Constitutional ‘interest’ in preserving the rights of the accused Citizen against the Sovereign police-power?
I would add here the Question: Doesn’t the government have a huge ‘compelling interest’ in preserving the Framing Vision and the Constitutional protections in order to retain for the common-weal and the Republic the vigor and vitality and efficacy of the American Founding Vision itself? Is that Vision totally ‘fungible’? What happens when respect for Law and the nation’s very Founding Vision is disassembled? What holds the country together then? Is any of THAT not a legitimate ‘compelling interest’ of the State and the government?
And Henderson raises the profound question of just how ‘harm’ is defined. (p.129) This was a problem going back to Mill and Bentham: granted that ‘harm’ should be prevented, how is this ‘harm’ to be defined and identified? Because if ‘harm’ is defined broadly to include inaccessible ‘feelings’ reported by the purportedly ‘harmed’ person, then there are for all practical purposes no boundaries whatsoever on the government’s potential intrusive and invasive power in avenging that ‘harm’, let alone in preventing it.
In this regard, the indiscriminate mixing of the psychological and the legislative-legal so characteristic of the past few decades is hugely dangerous. While it is valid professional practice for a (competent) therapist to ‘validate’ expressions of deep negative feeling expressed by the patient, this is only to assist in therapy and remains confined to the special ‘space’ enfolding therapist and patient.
But for courts and legislators to do so, to erect such ‘validations’ as principles of law and jurispraxis, is a whole other Thing altogether. The Sovereign police-power is a powerful and also lethal power, with consequences for accused Citizens and for the common-weal of the polity itself.
To indiscriminately lavish this awesome and awe-full power for short-term political gain is even more dangerous than splashing public tax-dollars around as pork and bennies to favored constituencies. (And, as is now obvious, sooner or later you draw down the fund of lavishable goodies and then what happens?)
Again, in a Note (p.178, number 260) Henderson makes clear if buried reference to the incipient threat posed by radical-feminist agitation as it tends toward a union of Victimism and Radical Feminism. She makes reference to Susan Brownmiller’s radical-feminist rape-tract book “Against Our Will” from 1975.
And in a subsequent Note (p. 179, number 263) Henderson observes candidly that vengeance is too closely akin to primitivism and barbarity, to vigilantism and a regressive return to the harsh legal practices of an earlier age.
Working toward her conclusion, Henderson also refutes a favorite V-R assertion: that since the State has taken over a monopoly of the police-power to control crime, then it is required in principle to compensate the victim when it fails to prevent a crime against the victim. This is a principle of tort law that is covered by victim-compensation laws, where the victim of a crime is compensated by the State out of public funds and tax monies.
But it cannot simply be transferred to the far more lethal criminal law to ‘justify’ a State responsibility to act as the personal instrument of vengeance for victims. There is most surely a ‘compelling state interest’ in wielding the police-power with a prudent eye to the wider and longer-term consequences for the common-weal.
And regressing the country back to 1692 and the jurisprudence and government practice of the witchcraft era is not at all, I say again, in the public interest – nor will it serve to make American society safer; indeed, it will corrupt and destroy the foundations of American society.
So that’s my take on Henderson’s very worthwhile article.
She wrote a second article, updating this one, in 1999, and that will be the subject of my next Post.
So much remains to be done.
**St. Martin’s Press. ISBN 0-312-07551-0.
Wednesday, October 19, 2011
I continue looking at Ezzat Fattah’s 1992 collection of essays entitled “Towards A Critical Victimology”.
As I have said, you get a chance to see just how even back then there were valid and well-expressed concerns about the consequences of a victim-oriented ‘reform’ of the criminal justice system. And you now have the benefit of two decades or a quarter-century of ‘reforms’ to see just how things have played out. (Not at all well, in my opinion.)
He includes an excellent 1985 essay by the legal scholar Lynne M. Henderson entitled “The Wrongs of Victim Rights”. The piece takes up 92 pages of the book, but only 43 pages are the text of the article; the rest are notes and references (she is nothing if not thorough in grounding her comments and ideas in case and statutory law as well as making reference to various legal thinkers and contemporary events).
She begins (p.101) with the sources of victim-rights (hereinafter “V-R”) in Western legal history.
She goes back to the beginning of Western Law’s long climb out of the Dark Ages following the collapse of the Roman empire. ‘Justice’ was a matter of clans, who would personally and violently avenge in an eye-for-an-eye sort of way any transgression (real or perceived) against one of their members. ‘Criminal justice’ depended thus on your extended kinfolk, who would avenge you by inflicting vengeance on whomever was settled-upon as being the perpetrator.
Blood feuds were often the result.
But with the recovery of some amount of social order through the development of early feudal lords and sovereignties, the ‘lord’ or king (still a long way from the ‘Sovereign’ of the 1500s and subsequently; don’t think Henry VIII or Louis XIV yet) realized that all of this violence was distracting and draining social energies and damaging social order. So instead, the clan violence was reduced and monetary compensation was increasingly introduced: such and such ‘tort’ required the payment of such and such an amount of money or other form of wealth to the victim or the victim’s kin. (Think of the current HBO series “Boardwalk Empire”, where the character of Arnold Rothstein sets up as a mediator between various violent and unruly mobster bosses, seeking to reduce violence because “it’s bad for business”; instead “arrangements” are agreed upon mutually.)
If the crime was so serious as to break what was coming to be considered as “the Crown’s Peace”, payment would be made to the Crown which – in a real sense – considered itself the victim. This reflected the reality that many ‘crimes’ did not involve direct violence to a specific person, but rather harmed the well-being of a group as a whole. You could poach wildlife from a specific royal preserve and the Monarch would literally be the victim of your predations. Or you could cut timber from forests specifically set aside to provide vital wood for the ships of the navy – again, a crime against large social and national interests, but not involving any specific individual as personal victim.
You see here the beginning of a development of ‘social interest’, as well as ‘royal’ interest (too early just yet to call it a ‘government interest’), where a crime could have far-reaching ill effects without involving any personal violence to a specific victim at all.
However, and certainly in England, individuals who considered themselves victims could also take advantage of a developing body of ‘tort’ law, where you could have a court conduct a trial to see if you could, through royal or ‘government’ authority, compel a tort-feasor to pay you compensation. This was not criminal law as we know it, since the police power of the Sovereign was not deployed to punish or imprison the accused. Instead it was the precursor of what we now know as ‘suing’ somebody.
As time went on, royal authority came to establish courts and a corpus of laws and even some form of police authority (beyond the Medieval English ‘sheriffs’ to include – by the late 1700s and early 1800s – the first police departments as we would recognize them today).
Simultaneously, and this was true of English law especially, efforts were being made to reduce the element of vehement passion and ‘feeling’ that used to characterize the earlier eras of vengeance and clan-kin justice. Instead, the emphasis – also evident in the increasing legal abandonment of witchcraft jurisprudence – shifted to a requirement for accurate evidence that rationally connected the accused to the commission of a specific criminal act (actus reus) and also of a specific and deliberate intent on the part of the accused to commit the criminal act (mens rea).
And at the same time, again especially in English law reflecting the 13th-century Magna Carta, there was an expanding effort to protect the individual accused from the awesome power of the developing monarchical government; increasingly, this protection was afforded not simply to the barons of King John’s era, but to larger groups of citizens and subjects.
As all this coalesced, there developed a decreasing emphasis on the individual victim. In its place, the focus was on the Law and the determination by the court as to whether the accused had indeed committed the alleged crime. The great drama or struggle or agon was between the government proving that the accused had done so and the accused making the case that s/he had not done so.
As the 18th-century progressed, Enlightenment principles of reason, scientific inquiry relying on evidence and proof … all of these became incorporated into the process. Rational, objective investigation, detached from the passionate emotional assertions of one side and the other (accuser and accused) became the great object and hallmark of modern Law.
The process was designed precisely to be impersonal, objective, and unemotionally ‘detached’ precisely to prevent emotions from swamping facts and accurate assessment of the real events that were the subject of the court’s inquiry. (In this regard, you may want to re-read my Post on the dangerously regressive precedents set in the Adolf Eichmann trial of 1961, see here.) Claims would have to be justified not simply by assertions or ‘stories’ but by facts that could withstand evidentiary scrutiny.
So, Henderson says (p.102), “the fact that the role of the victim has declined over time does not necessarily justify” an increased formal role for victims in criminal trials today. The victim can always resort to civil lawsuit, and the dangers of re-introducing passion and emotion into criminal legal process are far too great.
I would add that the entire concept of American law, grounded in the tradition of Western and English law as outlined above, relies upon all of that careful and dispassionate rational inquiry into the discovery and sifting of provable evidence. ‘Story’ veers perilously close to the ‘spectral evidence’ of the witchcraft-trial days, when an accuser would relate a personal experience or vision that nobody else could see or observe or experience, and expect that the court would without question accept such assertions as proof-positive that the accused was indeed a practitioner of witchcraft.
This hard-won high ground became the ground-stay of the classical Liberal (not to be confused with today’s concept of ‘liberal’) tradition of the modern West: the individual, endowed with rights and possessed of remarkable capabilities and potentials, was to be protected from the arbitrary invasive encroachments of increasingly well-organized and by nature incorrigibly intrusive governments.
But in the America of the early 20th century Progressives saw an increasingly complex mass society, urban and chock full of immigrants from cultures other than the north-western European (and English) traditions. Looking at society as something of a great and complex machine, they looked for ways to use Law to improve society generally, being not so much concerned with the individual crime as with the overall ‘social interests’ of forming these new masses of urban citizens into a more enlightened, right-living, and law-abiding society.
The criminal law started to take on an additional objective: no longer simply to adjudge individual acts of individual accused citizens, but rather to form citizens in a common social tradition that those masses of foreign immigrant citizens did not share, coming as they did from any different countries and cultures.
At the same time, more traditional (you might say ‘conservative’, but be careful) elements in society were worried that there was simply too much crime in the urban areas now. And that the solution was more vigorous use of the increasingly organized police forces to enforce the laws and keep the crime down.
After WW2, there was a general revulsion in Western countries to the shocking extremes to which dictatorial governments had taken to oppressing and assaulting their citizenries, evidenced in the societies of Imperial Japan, Nazi German, and Fascist Italy, as well as in the Soviet Union and the countries it took over or influenced as the Iron Curtain descended across Eastern and Central and Southeastern (Balkan) Europe and China. The accused citizen needed much protection.
Psychology had also developed – at least as a profession – during the war, and sought to rehabilitate offenders.
And then came the complexities of the civil-rights era. In the Jim Crow South, Americans were faced with vividly demonstrated (TV cameras came into use in the 1950s, giving news broadcasts a stunning visual component) evidence that if a culture or sub-culture somehow came to incorporate essentially wrong and oppressive traditions (the slave-holding and later anti-black traditions of Southern culture), then the forces of law-and-order themselves, police and courts, would ‘naturally’ work to enforce those noxious elements that now had the force of cultural and societal tradition.
The ‘liberal’ take on this – still recognizably Liberal in the classical sense – was that the federal government had the responsibility to require and forcibly enforce such changes in those traditions as were required to bring the errant Jim Crow culture and traditions into conformity with the American ideal and Vision.
But then came a second, Northern and urban phase to the civil-rights movement, where ‘race’ was inextricably intertwined with the older ‘urban crime’ problem that had existed independently of race. Worse, in this second phase of the civil-rights movement, such movements as the Black Power movement actually demanded ‘revolution’ and violent enforcement of black rights asserted against ‘white’ law and against white police.
This ignited conservative concerns that keyed-on the frightening combination of urban-crime and even ‘revolution’ as those realities took shape under the generally ‘liberal’ aura of racial justice and black liberation.
The Left or liberals began to lean toward ‘revolution’ as a way of achieving ‘justice’, and the Right or conservatives began to lean toward law-and-order as a way of preserving the essential structural coherence of society.
Henderson joins other astute commentators in noting the distinctly Rightist or ‘conservative’ swing toward law-and-order in the earliest support for V-R. The new-conservatives, I would add, were not acting in the tradition of Western Law’s concern to protect the accused: rather, they were seeking a greatly expanded government police power to prevent both crime and ‘revolution’.
While the distinctly Leftist or ‘liberal’ elements were swinging toward an expansion of the massive federal government intervention against the Jim Crow South and applying such greatly expanded government police power to the entire country and the American culture generally.
You notice that both sides had a bottom-line of a greatly expanded government police power. The Right to preserve and enforce law-and-order, the Left to achieve ‘justice’(and impose its ideas about what that meant).
In that sense, the civil-rights era, especially in its verrrrry distinctive Northern or second phase, the phase not of Martin Luther King but of Black Power, administered what I think was an overwhelming shock to the American system. Suddenly, not only ‘race’ but ‘revolution’ (backed up by armed, possibly Vietnam-experienced, folks spouting Mao and Lenin and Marx) were major active fault-lines in the nation’s cultural geology.
The Right was terrifically shocked; the Left found itself having to endorse stuff wayyyy beyond the happy-days of King’s first, Southern phase of the civil-rights movement.
But the civil-rights era had also profoundly shocked the politicians. The Democrats had been man-handled by LBJ into supporting the Civil Rights Act of 1964 and the Voting Rights Act of 1965. They did so with good intentions largely, although hugely nervous that they would be breaking up the New Deal political alliance of Northern immigrant cities and Southern Jim Crow.
This was going to be a huge problem to work through.
But then, within 2 weeks of the passage of the Voting Rights Act in early July, 1965, the largely black urban Watts neighborhood in Los Angeles exploded in a days-long orgy of rioting, burning, and looting.
The Democrats, previously in shock, now went into political de-fib. They had put all of their ‘liberal’ creds into the civil-rights movement, against ‘conservatives’ who were nervous as a matter of prudent principle about a) messing around in deep ways with any traditional culture no matter what its ‘shortcomings’ and b) getting the federal government involved in terra-forming the national culture, which was a huge leap beyond the original boundarying nature of the Framing Vision.
The liberals called for more social-justice; the conservatives called for more ‘law and order’.
The Democrats suddenly realized that the black ‘allies’ they had hoped would now become deeply loyal to the Party (and so replace the angry, departed-for-the-Republicans Southerners) were somehow turning against them, and in a brutally violent and public way. Suddenly the new ‘demographic’ had gone and turned on them, even demanding Black Power and in many cases more ‘revolution’.
The Dems became desperate as they saw their political viability go up in the smoke of Watts and – before long – a hundred other cities.
And then, as if this weren’t enough on the national plate (and nobody was worrying about the monstrous but still new problem of American economic primacy facing the competition of now-recovering industrial economies of nations wrecked by WW2 and newly-emergent ‘Third World’ nations), radical feminism quickly took over a developing women’s movement and loudly declared and demanded government war on ‘patriarchy’, the male gaze-and-grab, and men generally. (And you can see where this tour of recent history suddenly becomes relevant to the SO community.)
But whereas the Black Power movement actually seemed to be talking about armed revolution, the radical feminists saw their chance to get the Democrats – desperate for fresh ‘demographics’ – to enable a legal revolution and war against culture, ‘traditional Law’, and men generally. And the Dems were desperate enough to go along with it, hoping to use the power of the government to help matters along and clear a path for their new client-demographic and its self-proclaimed advocacies.
The Republicans swept in under Nixon and law-and-order was one of the battle-cries of the election, now code not only for actual law-and-order against violent revolution and the increasing crime that accompanied a growing Boomer ‘anti-establishment’ culture, but also code for putting the brakes on the whole anti-establishment and anti-American-culture dynamic that seemed to be picking up speed at a dizzying, alarming rate.
Thus, through the 1970s, the Democrats – utterly shocked by the national electorate’s 49-1 rejection of their new ‘liberal rights’ agenda of 1972 – continued to expand government power in the service of their new ‘demographics’ while the Republicans continued to seek more government power to deploy against ‘crime’ and to enforce law-and-order.
Building on the still-powerful national experience of seeing freedom-riders and Southern blacks beaten and hosed by Southern police in the first phase of the civil-rights movement, the Democrats had hit upon the strategy of drumming up quick and visceral public support by publicizing the stories and personal experiences of persons thus assaulted by the police agencies. Such a ‘personal’ approach worked, creating powerful empathy in public opinion. (Again, this embodied some of the most dangerously regressive elements deployed in the Eichmann trial of 1961.)
Against that the government – DA’s and police – could only present itself as ‘the establishment’ … and nobody, it seemed, empathized with a thing like that.
The government – especially in the Republican and ‘conservative’ view (which wasn’t really truly conservative at all, as we have seen) – needed its own tearful or outraged ‘persons’ that it could put before public opinion to counter the Democrats, who seemed to be ‘coddling lawbreakers’ by ‘hiding behind the Constitution and due process’. (Again, you see here where things are starting to go.)
If the Right were going to be able to deploy the police power of the government, and enlarge it, then it needed to do so in a ‘kinder gentler’ way; it needed its own tearful or outraged individuals for the cameras.
And thus Reagan comes in and in 1982 we have the Presidential Task Force on the Victims of Crime. It is in this historical moment that – as Henderson and others rightly observe – the ‘victim’ suddenly assumes significance again (after so many centuries) in Western and American legal matters.
It is the beginning of a torturously contorted cultural and political melee.
It begins with the so-called ‘conservative’ Right seeking to reduce the rights of the accused (enshrined in the Framing Vision and the Constitution and the Bill of Rights) and enhancing the greatly expanded capabilities of the Sovereign police power … by masking the whole thing behind the tearful and outraged Victim of this or that violent crime (thus, as Fattah acutely noted, distracting the country from white-collar, corporate, and even political crime – verrrry neat).
The Democrats had already been using the expanded Sovereign power of police and regulation to terra-form the national culture (in the name of liberation and ‘rights’ of the individual and of assorted demographically useful groups).
They also had one hugely important demographic – the radical feminists (claiming to represent all women) – who wanted the police power deployed specifically against males and sex.
And the radical-feminist-inspired adoption of old European revolutionary agitprop stratagems – such as placing tearful and terrified or outraged victims in front of cameras – had already been working for them here.
The Republican-conservative Right now raised up the Victim of Violent Crime to justify its hugely-expanding War On Crime.
This was going to guarantee a shock to the nation conceptually, because – as Henderson will point out – so many of the elements demanded by the Victimist movement actually consist of a regression away from and back from the Law as conceived by the Framing Vision and the Constitution, and throws things back to the days of impassioned and unsupported claims for vengeance.
Worse, the stratagem wound up re-awakening the ancient demon of Demonization: the violent offender (no longer the Accused) was now caught, was incorrigible and evil and could not be rehabilitated, and could only be locked away as soon as possible – and anything that got in the way (including the Framing Vision and the Constitution and the Bill of Rights) was simply to be swept away as ‘obstructive’. (And this was the so-called conservatives talking!)
California, starting with Proposition 8 in 1982, began to dismantle many of the protections for the accused which were the hallmark of the Burger and Warren Court years; protections reinforced in the light of what the country had seen happen in WW2 when governments go after their own citizens without boundary or principle).
I think you could say that there just too many crimes for anybody’s Constitutional sensibilities to handle: the 1960s had seen the widespread and profound weakening of parental and societal authority, of familial structure, and indeed the whole Boomer approach to law and structure was that it was just ‘old, bourgeois’ stuff that no really ‘authentic’ person (usually imagined as being under the age of 30) could allow to interfere with Groove-full life.
Worse, under the influence of numerous European thinkers who had had a bellyful of fascism and Nazism, many advocates here who were eager to justify their ongoing assaults and deconstructions of American society were insisting that American culture was as ‘oppressive’ as anything in the WW2 era and that ‘resistance’ to an oppressor’s laws was not a crime but an act of’ empowering liberation’ and so forth and so on.
So the Right wanted more police power (to turn against the ‘criminals’) and the Left wanted more police power (to turn against the ‘oppressors’).
V-R advocates demanded ‘reforms’ (which were actually regressions to ancient, primitive practice the West had finally outgrown) that reduced the presumption of innocence, increased the burden of proof on the accused while lessening the burden of proof on the accuser’s ‘story’, limited the accused’s ability to confront and cross-examine his (so often ‘his) accuser, and skewed the objectivity and dispassionate detachment of the judicial and jury elements by insisting on introducing tearfully or vengefully impassioned victim-statements into the trial process itself.
It was all, narrowly speaking, a prosecutor’s dream.
And while there was increasing crime among whites, the crime rates in the urban black ‘inner cities’ were skyrocketing. So there was now a race-element to the whole developing brew: a War On Crime could actually be reliably worked out so as to be a repressive or re-repressive war on blacks. And the Dems were not about to let that happen.
But then came Gender.
Gender is a funny thing in many of these otherwise acute articles about V-R’s consequences. It is almost never mentioned. (Nor, for that matter, are sex-offense cases or Mania Regime laws in general.) My thought is that no matter how well-intentioned and thorough a professor or organizationally-connected article writer wants to be, you just can’t raise the Gender matter without risking serious blowback (or ‘backlash’) from the now-entrenched radical-feminist interests.
Because if you’re of a chemistry or engineering turn of mind, you might notice that the only thing keeping the Dems from fully equaling the Republicans in all of this ‘increased police power’ was that the matter most essential to a useful Gender war was that ‘sex’ generally was not considered as a violent crime the way street-crimes of murder, robbery, armed assault and actual stranger-rape were.
But that was precisely where (radical) ‘feminist law’ and its ‘reform’s came in. Its objective was – and indeed almost had to be – to get ‘sex’ accepted as the worst crime of the worst. (You recall from recent Posts the intensifying effort to get any and all ‘sexual violence’ accepted as rape and as utterly destructive of the psychic and emotional well-being of any ‘victim’.) And of the ‘home’ as not being the ‘hearth’ of the Citizen to be protected at all costs from the intrusions of government authority, but rather as the greatest on-going crime scene in American history – thus demanding the most ‘robust’ intrusions of the Sovereign police power.
By combining the originally Rightist-‘conservative’ Victim with the(mostly female) victim of sex, you could in a single stroke blend the abiding objectives of the Republican Right and the Democratic Left, of the ‘conservatives’ and the ‘liberals’. (And neither of those two huge political elements and Parties were interested in any boundary to the government or Sovereign police power.)
Thus while Republicans in the Reagan era originally ‘valorized’ the Victim, it was the Democrats a few years later under Clinton who introduced the initial Violence Against Women Act (VAWA) and the Domestic-Violence initiatives. (Under the same Joe Biden, then Senator, now Vice-President, joined as time went on by such Republican legislators as Sensenbrenner of Wisconsin, among others.)
And thus quickly followed the SO Mania Regime, based on highly-publicized child-victims (who, rightly, could in no way be suspected of being ‘complicit’ in their own sexual victimization) who were the refinement of the refinement of the Innocent Victim whose case could be put by his/her surviving relatives before the cameras.
And here we are.
I will continue the review of Henderson’s article in my next Post. I hope this look at recent national history gives you a sense of how, politically and culturally, the SO Mania Regime developed the quick-burning, unexamined, yet seemingly unstoppable impetus for the Regime, the political support for which has been for so long so immune to rational and evidence-based refutation of its basic assumptions and to any serious considerations of the increasingly-obvious dangerous consequences to American Law, law enforcement, judicial practice, legislative integrity, and to actual respect for the Framing and Constitutional Vision.
So much remains to be done. If the American polity is to survive as worthy of respect among both its Citizens and its elected and sworn guardians.
**St. Martin’s Press. ISBN 0-312-07551-0.
Tuesday, October 11, 2011
I have come across a book from 1992: a collection of essays entitled “Towards a Critical Victimology”, edited by Ezzat A. Fattah.*
In this Post I want to comment upon Fattah’s own Preface and introductory essay; subsequent Posts will look at some of the other essays in the book.
As so often, I look at books and essays from years ago – two decades in this case here – in order to give you a sense of depth and perspective over time as to how the components of what I call the Mania were viewed even back then; and this allows you to consider how those components and the objections to them have actually played out over time.
And at this point in history now, when government cash to fund the Mania is draining away but pols are even more desperate to somehow look like they’re ‘doing something’ for the Rightist and Leftist ‘bases’ that fused together in support of the Mania, you have a chance to consider what new frakkery might be predictable as ‘bases’ and advanced-level advocacies try to keep the ball rolling, while pols and the media try to somehow change course or slow down their support without making it obvious that they have, for decades now, supported a huge and lethal mistake.
So, in a relevant matter, in light of what we now know about the passage of the Adam Walsh Act in 2006 (sleazily passed under a ‘suspension of the rules’ rubric), it is possible that AWA’s supporters in Congress realized even back then that too few Members were willing to simply green-light the thing or let it pass unchallenged in open debate. It is both regrettable and revealing that the mainstream media did not fulfill its obligations and note this portentous development back then.
So to Fattah’s Preface and introductory essay, bearing in mind all the while that he wrote this in 1992, almost 20 years ago.
In his Preface, Fattah (p. xi) notes the original claim of victimists and advocates that they merely wanted to “adjust the balance of justice”. It is a harmless-sounding, indeed sort of constructive-sounding phrase. But of course any time you are going to start tinkering with as complex and delicately-balanced machine as the criminal justice system and its laws – which are themselves based upon a specific and vitally Grounding Constitutional and Framing Vision – then you are into an operation that requires the utmost circumspection, prudence, care, thought, and caution. This is like fiddling with the foundations of a skyscraper after it has been built, occupied, and has been standing for a long long time.
But instead he observes (p.xi) “the extreme celerity” with which pro-victim initiatives were produced; and the “readiness” with which they were accepted by legislators, legal professionals, and the media; and all that “with no criticism” or deliberation; and thus the ease with which they “sailed through” legislative bodies “in many countries of the Western world”.
The SO community, and readers of this site, will be familiar with most of the material that supports precisely what he is beginning to see decades ago. I would only add here that he realizes this is happening throughout the Western world (which took at that time many of its cues from the US); while I draw no easy conclusions, I note there that the West has experienced a general decline in influence and even respect and there are dots yet to be connected.
Worse, he notes (p.xi), this is especially “surprising” since many of the proposed “reforms” most certainly “do have far-reaching implications and consequences” fundamentally affecting the system of criminal justice. And thus, I would add, for the integrity and competent functioning of the Constitutional Vision that underlies that criminal justice system.
Laws, he notes (p.xi), are coming onto the books that are “poorly defined and hastily designed, with enormous and un-examined effects on the legal process, uncertain means for enforcement, and which create rights-conflicts [i.e. between accuser and accused before the bar of Sovereign Authority] with no apparent resolution”. Recall as well that he is writing when some States had already introduced draconian SO Registries but still two years before New Jersey’s fraught Megan’s Law and four years before Clinton erected a federal Registration law.
And then he goes off the rails slightly, but perhaps accurately for the era, noting (p.xii) the “distinctly conservative bias and unaccountably punitive, retributive bent” of the laws. He is reflecting here a sense – and an accurate one as far as it goes – that, going back as far as Reagan’s Presidential Task Force Report on Victims of Violent Crime in 1982, attracted the law-and-order Right that was trying to counter the defendant-friendly thrust of the Warren and Burger Court years immediately prior.
But I would add here that even back then, and with intensifying virulence and premeditated competence, the Left – especially in the form of a Democratic Party increasingly ‘responsive’ to ‘women’s issues’ as the radical-feminist advocacies were controlling that discourse – was also sensing a useful tool in radical-feminism’s ‘war’ on patriarchy and males, based on that radical movement’s presumption that just about all (heterosexual) sex is “rape” and “oppressive” and merely a tool to deny ‘women’ their rights. This was yet another fire burning in the national political and cultural forest, which would start to burn-toward the Right’s abiding concern to enhance government authority and power (especially in the light of the widespread discombobulations of the many ‘revolutions’ ignited in the 1960s and 1970s).
He also notes acutely (p.xi) the tendency of the victimist advocates to introduce an ominous Manichean good-bad dichotomy between the Good (and helpless and 'innocent') Victim and the Evil Perp. This is the vivid and simplistic cartoonish melodramatic dynamic that so clearly in evidence in the early silent films where the mustachioed, black-clad villain ties the helpless, white-clad heroine to the railroad tracks as the train puffs ominously into view in the distance.
He notes, echoing Robert Elias (the author of the 1986 book “The Politics of Victimization” that I have looked at in several previous Posts, and who contributes an essay to Fattah’s book here in 1992), that this theme is particularly characteristic of the “North American victim movement”, including not only the US but Canada.
This creates (p.xi) a “false contest” between so-called victim “rights” and the rights of the accused (preferably spun, I always say, as the ‘perp’ or ‘offender’ or ‘sex offender’). But I also add that the rights of the accused against the un-boundaried deployment of the Sovereign Authority are and have always been enshrined in the Constitutional Vision (especially in the Bill of Rights). The ‘rights’ of the victim enjoyed and enjoy no such authority and status in the Constitutional vision (which perhaps explains efforts for a while to add a victim-rights Amendment to the Constitution itself).
I would also add that the dynamics necessary to ensure any substantial victim-oriented ‘rights’ as they are being enumerated nowadays would of necessity have to deconstruct the fundamental Citizen protections carefully and clearly embodied in the Constitutional Vision and in the Constitution’s Bill of Rights. Thus any such ‘re-adjusting’ of the balance (between the accused and the Sovereign Authority) would have to be, by its very nature and inescapably so, anti-Constitutional. And this goes as well for that monstrous mutation and Frankenstein-like embodiment of North American victimism known as the SO Mania Regime and its laws and jurisprudence and jurispraxis.
And then Fattah (p.xi) opines that the Method through which victimist initiatives emerged, the timing, the probable ulterior motives, and the political intensity – all of these “expose the hollowness of many of the slogans of victim-rights”. I fully agree. And I would add that “slogans” echoes – although Fattah doesn’t get into it – the methodology of propaganda agitprop, whose objectives – while ostensibly to ‘help’ and ‘change’ – are specifically designed not to inform public opinion but to stampede it, under the guidance of cadre-elites who ‘get it’ against the great mass of citizens who, from the point of view of the revolution, ‘just don’t get it’.
Fattah then notes (p.xii) that what particularly concerns him is the mutation (my term) of victim rights, especially in its North American variants, from a “scholarly” effort to research and understand to a “lobbying stance” where the objective is not accurate comprehension but rather the quick capture of policy and legislative action (and, of course, the hoodwinking stampede of public opinion).
These, he says, “highlight the dangers of a missionary zeal in the service of victims of crime”. Notice that in the beginning – back in the Reagan 80s – the concern was for victims of violent street crime, not necessarily sex-offenses. Although, I add, as early as 1981 we saw the profoundly disconcerting whackery of the child-day-care satanic-ritual-sex-abuse outbreak – which should have given great pause to any easy presumption that American culture in either its popular or elite versions was retaining its grip on mature, serious, careful management of its most fundamental affairs.
He then notes (p.xii) how “unwarranted and misleading” was the “fanfare surrounding the introduction of victimist measures”, most of which were “political palliatives, judicial placebos, or unfulfilled promises”. I would say that the subsequent decades’ worth of SO Mania laws were in their essence efforts to somehow turn the sow’s ear of public pabulum into the silk-purse of genuine and legitimate legal ‘reform’ and ‘updating’ and et cetera and et cetera and et cetera.
We pass now to the first essay in the book, which is Fattah’s, entitled “The Need For A Critical Victimology”.
He notes (p.3) “the dangers of compromising long-established legal safeguards, the probable negative consequences [such as increasing use of imprisonment and longer prison sentences], and the consequences for law enforcement and criminal justice”.
He is deeply worried that such deeply fraught and yet so fundamentally significant ‘change’ yet “generates so little debate” among politicians and legislators. But we now know that in that era (the very early 1990s) radical-feminism, at that time still the darling of the Democrats, was entering its governmental and political heyday as the outgoing Bush 1 (eager to pander) and the incoming Clinton (the designated Democratic panderer-in-chief) represented an intensifying ‘bipartisan’ embrace of victimism (and, as we know, the SO Mania was quick to follow).
So no pols were going to stand up in front of that oncoming freight train. And yet, as we also know, those Mania laws were for the most part not passed on roll-call votes but rather by the unattributable voice votes whereby no Member could be held accountable unless s/he sponsored the law or voluntarily went on the public record as being in support of it. Even then, I would say, the legislators at all levels knew that somehow this Thing wasn’t a good idea and – once the hoopla wore off – might come back to bite them. Meanwhile, who could afford to worry if the Mania Laws began biting and tearing every Citizen that they could get their teeth into?
And it made great ‘copy’ and ‘news’. For the mainstream media it was pretty much a gift-basket or piñata from Heaven.
Again Fattah (p.4) wonders about the “motives” of all the parties (advocates, legislators and pols) involved in this soooo-easy ‘victory’.
A UK sociologist, Paul Rock, had been looking at the developments in the UK and Canada in the timeframe of 1986-1990. Rock too was led to suspect the timing, ease, speed, and motives that underlay the whole thing. The victimist demands got onto the “political agenda” with dismaying and suspicious speed and ease. Fattah will continue to imagine – and at the outset rightly – that this was because of the tremendous utility of victim-rights to the law-and-order Right.
And in the early child-abuse focus there was some validity to that indeed. Politicians somehow sensed the opportunity to pander to some strong strands of public opinion. These strands, I would say, included not only a concern for the increase in violent street crime.
It was equally attributable to A) a ‘liberal’ and ‘progressive’ concern for defendant-rights in the immediate postwar period, when the world had seen after WW2 just what governments can do to their Citizens when they cut themselves loose from any Higher Law and from the substantive adherence to the long-established principles of Western justice; but also to B) the American 1960s ‘liberal’ and ‘progressive’ cutting-loose from ‘morals’, ‘tradition’, ‘common-sense’, and all of that connected with the Boomer and assorted revolutionary abhorrence for ‘bourgeois conformity’ and the abiding Boomer quest for ‘freedom’, ‘authenticity’, and so on and so forth. The same dynamics that fascist and communist governments had unleashed in the service of the Sovereign Authority the Boomer-era unleashed in the name of ‘revolution’ and ‘liberation’ and ‘personal authenticity’. Funny how the historical Night moves.
But as a spin-off of the cultural-revolutions of the late 1960s and 1970s, large numbers of Boomer adults began to deconstruct and weaken long-standing structures of marriage, family, and parenting as moves toward genuine liberation: parents were no longer spending as much time with their demanding kids, kids were on their own and out on their own increasingly, and ‘sex’ was somehow ‘valorized’ as a good thing in almost all instances (this ran smack up against the radical-feminists’ abhorrence of heterosexual sex encounters, but to notice that glaring conceptual disconnect was to be thinking too much and thus proved that ‘you just don’t get it’).
Social psychology could quickly provide grounds for deep concern that large swaths of the public would thus be harboring some deeply repressed guilt-feelings: in following its own path, the Me generation was diverting an awful lot of personal attention from raising its kids to pursuing its own bliss – and such neglect would easily generate guilt.
But humans (and politicians) are notorious for taking the easy way out when it comes to one's own personal guilt: a scapegoat could be raised up upon whom all the trials and tribulations of under-parented kids could be off-loaded. Thus the Violent Stranger, the sadistic Day-Care provider (with whom kids were spending more and more time), and before too long – in a monstrously efficient hydra-headed gambit – the Stranger Sex Offender.
(I don’t intend the foregoing thumbnail sketch of relevant historical factors to be complete, but each of its components played a vital role in the development and sustaining of the SO Mania Regime.)
And then the radical-feminists, coming into their own in the 1990s, unleashed it all against ‘patriarchy’ and ‘men’, whose most vulnerable (psychological and cultural as well as physical) characteristic was ‘sex’. You could declare war on Sex-Offenders and be pretty sure that it would also pan out to be, by and large, a taxpayer-funded war against males. Wheeeeee! What was not to like?
And the pols saw their opportunities and took them. As did the now-familiar pandemonium of ‘experts’ and cottage-industry ‘therapists’ and helpers, as well as the lavishly funded advanced-level, Beltway savvy, victim advocacies.
Fattah notes (p.6) that the 1982 Presidential Task Force focused on “heart-rending yet atypical cases” – and the SO community saw precisely the same gambit deployed in the welter and smorgasbord of SO laws, named so often – so slyly – after this or that victim of a genuinely outrageous but very rare crime. As if the name of the law would distract Citizens from examining the law itself, so overcome with grief for the luridly repeated story of the named victim’s horrific experience.
Fattah comes about as close as he is going to come (at this point) to observing that this whole Thing was not simply a creature of the Right, when he notes (p.6) that victim-rights grew initially from a “populist” inspiration, that was then “co-opted” by the law-and-order Right. I think my position is clear: it was not only co-opted by the putative ‘conservatives’ of the Right; it was deliberately taken over by the cadres of the putative ‘liberal and progressive’ Left, the Democrats. And thus the bipartisan streams were blended and the great SO Mania Frak-Ray was generated in all its power and fundamental treachery and incoherence.
Fattah, noting that some efforts were indeed made, even in the mainstream media, to look more soberly at matters, refers (p.7) to a ‘Time’ magazine article of early 1990** The author of that article describes the dynamic – clear by that time – of ignoring similarities between victims and perps, and indeed raising up the victim as Good and Innocent and Helpless, and the perp as monstrous and Evil by nature.
And that somehow sympathy for the victim was being alchemized into a cry for vengeance against the defendant. (In the early days of cinema, it was not unknown for staid gentlemen as well as women, watching the train approaching the white-clad heroine tied to the track under the leering and sneering eyes of the black-clad Bad Guy, to stand up in the theater and denounce the brute on the screen, while screams and cries for some Help to appear echoed throughout the hall. What pol could refuse him/herself a chance to be that Help, that Hero? Fantasy and Reality blended, often to the disadvantage of the latter.)
Fattah also notes (p.8) the re-emergence of the potential for and practice of “vigilante justice”. We recall that the New Jersey Supreme Court (in the infamous Poritz decision of 1995) pooh-poohed prissily the possibility that an online SO Registry would expose its targets to such justice; the American public, the Court sniffed, was too mature and classy for that.
He also notes something that we don’t often recall: “court vigilance”, whereby strike-squads of victimists would monitor court trials and put on an agitprop show for the cameras whenever some judge was – in the opinion of the revolution – too lenient on a sex-case defendant; even if, I imagine, the judge was simply following the established Western and Constitutional jurispraxis. Nobody familiar with newsreels of life in Germany in the early 1930s could have failed to notice the similarity in dynamics.
Such tactics (p.8) enshrined the “horror-story syndrome” and fed on what was claimed to be “pampering” by the criminal-justice system (and, I would add, implicitly attacked the Constitutional Vision and the entire process of Western and American adversarial justice, designed from the get-go by the Framers to protect the Citizens from the run-away deployment of the Sovereign Authority against them – beneath all of the agitprop was the implicit condemnation of the Constitution and the Framing Vision as ‘pampering’ crime … not even Goebbels could have thought up a more lethally insidious gambit).
Thus Fattah saw the North American victimology movement as “ideologically transformed” (p.10).
And worse, he continues, rather than a criminological focus on the act (or actus reus, technically) itself, the focus was shifted to the insistence upon the personality and fundamental nature of the accused as an incorrigible Monster (my term). I would say that while this gambit echoed queasily the Nazi demonization of what it called repellently “the eternal Jew”, it also reflected and embodied the sly radical-feminist emphasis on the biologically-grounded propensity of the male to propagate through the sex act: since men are essentially predators (although, by the by, women are not ‘essentially’ mothers) then men are permanently and unstoppably sex-perps. Truly a self-licking ice cream cone.
Nor, even more ominously, did males have to consciously intend to be sex perps (mens rea, technically). Rather they were simply by nature and in essence sex-perps. This at a stroke blew away the entire Constitutional and Western legal requirement that a felonious crime had to be deliberately intended. Rather, in a sickening similarity to the Soviet revolutionary condemnation (and obliteration) of entire social classes (such as the Kulaks) simply because they were classified as members of that class, North American victimism – overtaken now by radical feminism – declared an entire human gender to be an outlaw-class, worthy of the most robust repressive measures of the revolutionary ‘law-at-war’.
It is on the basis of such as this that I consider the erection and maintenance of the SO Mania Regime to be a truly world-historical instance of the treachery – deliberate, even if not much thinking went into it – of a government against half of its Citizens, against all of its hard-won legal advancements, and against the very Framing and Grounding Vision of its own polity.
All of which “sacrifices” the rights of the accused. (p.12) And we can no longer be lulled into accepting that whatever new SO initiatives (or ‘sexual violence’ initiatives, as you saw in the immediately previous Post is becoming the new ‘cover’ term) are simply ‘updating’ or ‘reforms’.
And then (p.12) Fattah notes something that would no doubt have seemed just a tiny by-the-by in 1992 but today assumes truly stunning significance: all of this emphasis on ‘violent’ crime or person-on-person crime, he thinks, dangerously shifts national focus away from “white collar crime”; those in great corporate or financial (or political) authority need now be even less fearful of being held to account for any “abuse of power”. And you are invited to look around this “last best hope of mankind” in the Year of Grace Two Thousand and Eleven and see if that observation of Fattah’s hasn’t worked out lethally – perhaps fatally – for the country.
This demand for a “shift of balance” by the victimists, he goes on (p.13), must inevitably work to reduce the rights of the accused. Especially as evidentiary rules are re-weighted to favor the accuser (and the Sovereign Authority, for whom the victim is a handy ‘front’) and work against the accused (whom the Framers had made it their first business to protect against the arbitrary invasions and depredations of the Sovereign Authority).
It was clear, he says (p.13), as early as the 1982 Presidential Task Force when its Report included “a damning indictment” of safeguards long-erected to protect the accused. And I would add here that no calculating radical-feminist advocate worth her (or his) salt could have failed to see in 1982 just what a dandy opening this created for ‘the revolution’.
In the UK, Fattah notes (p.14) the emphasis was on the victim’s needs; in the US and Canada the emphasis had mutated to the victim’s putative rights.
Rapidly, back then, child-abuse legislation attracted an almost “missionary zeal”, but no corresponding zeal to ensure that legislation and policy would accurately define and then constructively address the problem. (How could it? Were the pols in the early 1980s going to recommend that parents – especially mothers – pay more attention to their kids, spend more time with them, keep them under a watchful eye? Were the pols going to insist that families remain intact, or that unwed mothers be far more careful in what males they invited into their child-inhabited homes and apartments? You see how things began to play out in a torturously incoherent era of ‘reforming’ national policies as well as laws.)
And surely enough, he notes (p.14) the law-and-order ‘conservative’ initiatives in favor of draconian and family-intrusive child-abuse laws (fuzzily defined to include ‘neglect’, whether from deliberate negligence or the stringencies of single-parent poverty) that actually worked – as do the Domestic Violence Regime laws here – to undermine the family and lay it open to the almost whimsical decisions of government agents and apparatchiks. As the female is thought now to be merely the temporary bearer of children (when she wishes) so too the family is simply a temporary, State-allowed parking lot for children, who can be removed on almost any pretext according to a welter of ill-defined charges or ‘issues’.
And those early abuse-laws manifested clearly a hasty, “sweeping” nature, and “low standards of proof”. Characteristics, I say, of ‘emergency laws’ that are designed – not always with evil intentions – to sweep away any obstructions that might delay the law’s touted beneficial or salvific effects in the face of whatever monstrous ‘emergency’ occasioned the law in the first place.
Fattah quotes (p.16) one Canadian doctor in June, 1991, who wondered What actually caused more damage in abuse cases: the past abuse itself OR the disclosure of the abuse years or decades later? This goes to the heart of still-current victimist doctrine and practice: if a (self-declared) victim has gotten by for decades, when it can reasonably be presumed that some human resilience would help grow interior psychic ‘healing tissue’ – so to speak – over the wound, then wouldn’t the very public re-opening of that wound, especially in courts of law and the mainstream media, work toward re-igniting the very damage that had been workably absorbed into the psyche over the years?
Yes, surely, some psychological therapy (competent, that it is) would be useful – as can be said for just about any human being who has reached adulthood – but, the doctor wondered, can all this brouhaha of publicity (required by victimist agitprop) really be genuinely helpful to an actual sufferer in the long term?
The question has not lost its relevance today.
He quotes from a 1985 article*** that enumerates some of the problems with child-abuse laws of the era: broad and vague reporting laws that also often serve to prevent help from being sought; guaranteed anonymity for those making accusatory reports; enormous power and broad discrimination vested in social-workers and state employees; removal of children from their natural family environment when not absolutely necessary [no doubt for ‘preventive’ purposes]; and in the matter of any sexual inferences, the consequent deprivation of physical contact or affection from accused parents, perhaps lasting beyond the resolution of the initial matter.
The author might have included an advanced-level problem: children who have been wised-up enough to wield such ‘power’ to intimidate parents for any reason whatsoever. Reflecting both the advanced-level consequences of such laws and policies, and also reflecting the ‘progressive’ assumption that it is the State, and not the Family and Parents, that is the ultimate authority.
Fattah concludes with a paragraph now made poignant with the passage of time. It’s too early to tell, he says (p.21) just what the consequences of abolishing trial-safeguards in rape cases are going to manifest. Not requiring corroborating evidence for the alleged victim’s charges and testimony; the fact that sexual-encounters often leave no evidence in any useful sense; the prohibition of robust cross-examination of the accuser by (counsel for) the accused; the public anonymity for accusers provided by so-called rape-shield laws (no name and no prior sexual history permitted) … all of this, Fattah realizes, destroys any possibility of “a fair trial in the adversarial system”. Which is the Constitutionally-enshrined American system that was incorporated by the Framers from the hard-won achievements of Western Law’s climb up from barbarism and primitivism.
He notes that in May, 1991 the US Supreme Court – in an Opinion written by Sandra Day O’Connor, acknowledged feminist legal advocate and “friend” - upheld the rape-shield laws. While in August, 1991, the Canadian Supreme Court rejected them as being fundamentally opposed to Western concepts of jurispraxis and rights.
Things have moved on since then. Sooooo much.
*St. Martin’s Press. ISBN 0-312-07551-0.
**”Turning Victims Into Saints”, by Ellis Cose; ‘Time’ magazine, January 22, 1990.
***Wexler, R. “Invasion of the Child-Savers”. ‘The Progressive’, issue of September, 1985, pp. 19-22.