Friday, June 26, 2009



Sometime in the past year I got around to reading the John Jay College of Criminal Justice report on abuse among the Catholic clergy (the text is available here).

I read these things because I’ve become very interested in the dynamics of these increasingly numerous ‘waves’ of ‘concern’ that wash over and through American society nowadays, creating damage the way a cattle stampede could wreck a frontier town if the herd came down Main Street at full speed.

As I’ve mentioned in other Posts, it stuns to realize that these things have started, reached white-hot heat, and sustain themselves – all in such a short space of time, all in an era – the 1990s and 2000s – when we are supposed to constitute one of the most ‘advanced’ and knowledgeable societies in human history.

And it stuns to think that a society that could be stampeded so easily into a disastrous and unjustified war in Iraq was prepared for such a destiny by its becoming accustomed to the assorted sex-offense stampedes.

It would be easy to just write it off to the fact that there are still large numbers of Americans who believe that the earth is 6,000 years old or so; or who don’t believe it’s only 6,000 years old but refuse to believe in the mechanism of evolution. And of course, once any reasonable adult realizes that many folks believe in the literal truth of the Bible – ever’ word of it – yet insist that when the scriptural text repeatedly and unmistakably says “wine” it actually means “grape juice” (as in Welch’s or some such), and that this dual insistence causes them not a moment’s lost sleep whatsoever … well, it would be easy to blame it on hicks.

But where the evangelical and fundamentalist brethren and sistern might certainly not mind seeing them Kathliks taken down a peg or two – and certainly the loss of the Catholic Church’s and hierarchy’s stature in American society has opened up all sorts of opportunities for the progeny, however distant, of the Reformation – yet the priest-abuse wave didn’t start with them.

Like the sex-offense wave that preceded it, the priest-abuse wave is a thoroughly modern phenomenon, abetted by some of the most enlightened and elite elements of American society. Although, then again, governments have been acccusing Catholic clergy of this sort of thing for a thousand years and more. Goebbels even tried to proseceute an entire monastery in Bavaria, where the Catholic community was resisting the imposition of the Nazi utopia; but the good burghers and farmers wouldn't accept Berlin's scheme and it 'went away'. (I'm not saying there has never been any 'abuse' - the question here is whether there has been more than one would see in other religions or professions that would justify the wave. Genuine child-abusing clergy, or any professionals, must answer for what they have done.)

The current wave has a ‘science’ and a ‘history’ and all sorts of ‘facts’ that nurtured it and justified it, and justify it still. When the wave broke in early 2002 it was actually a repeat of a wave that had run its course in the mid-‘80s, and yet had come back in the early-‘90s, and – like a magical tornado – had turned around and come back for yet a third run on the place.

Not particularly believing in magicks, I got the idea that some other dynamic or dynamics must be feeding this curious behavior. The Jay report being the most widely known study, conducted by an institution that was both academically accredited and connected to practical expertise in criminal justice and law enforcement, I turned to it to see what it had to say. After all, the Catholic bishops had accepted the report, and the report had formed a bedrock for the validity of the ‘crisis’ and justification for the various measures and alarums that had followed.

I’m putting my observations in note form, simply to make it easier on myself and the reader.

- It claims that its brief is to examine the number and nature of allegations of sexual abuse of “minors under the age of 18” by Catholic priests between 1950 and 2002. That’s 52 years, and decades of the stuff is – well – decades in the past. We will see this curious repetition/qualification in re the age: what constitutes a minor? A child? Since when has a teenager become a child? Thus: define ‘child’ in ‘child sex abuse’. The study will later conflate priests and ordained deacons.

- While it is scrupulous in calling the victims ‘alleged’, yet it then goes on to credit any/all of the allegations insofar as it bases its analysis on those ‘reports’ made by the alleged victims in order to deduce characteristic and usable ‘information’. Thus we have the imperial mandarins studying the unicorn for useful information about the horse and about ‘things’.

- They have identified 4,392 priests in the period 1950-2002, charges against whom “were not withdrawn or known to be false”, leaving a very large criterion gap. How could one establish truth or falsity without a trial?

- “There is no definitive number of priests who were active between 1950-2002.” Are they serious? They then come up with 2 possible numbers: 109,694 (by toting up manpower reports from dioceses, religious orders, “and eparchies” – in case the reader might wonder if John Jay were familiar with things Catholic) and 94,607 (but this is for the period 1960-2002, delivered without comment). All told, using the 109K figure, the percentage of accused priests constitutes .0400386 percent of that 109K total (my calculator won’t go further). And then we would have to start factoring in the validity of the allegations and the severity of the acts alleged.

- They start to confuse ‘allegations’ and ‘reported cases’.

- They remind us that all of these figures are tentative because additional ‘reports’ may come in at any time. Of course, given that a ‘report’ may be nothing more than somebody saying that such-and-such a thing happened 1 or 2 or 5 decades ago, then that’s a pretty safe bet, and it all adds a shivery sense of ongoing-ness, so vital to maintaining ‘concern’.

- Approximately one-third of all allegations were “reported” in 2002-2003 and two-thirds have been made since 1993, though the time-of-alleged-abuse in some of these goes back to 1950. The foregoing delivered without comment. THEN: “Allegations of abuse in recent years are a smaller share of all allegations” – ditto delivered without comment. Naturally, at least until evidentiary boundaries were broken down by the courts, the risk of proof being more readily found against an allegation was greater for a more recent case, thus discouraging ‘reports’.

- 68% of the accusations were for the years 1950-1979; no explanation is ventured for this.

- The majority of priests (56%) were accused of having “abused’ (no definition ever provided) just one “victim”. 149 priests (3.5% of that 4,392) were alleged to have abused more than 10. The definition of ‘abuse’ has to be considered carefully: although it might denote rape and overt genital activity, the term ‘abuse’ is also used in the media to describe a touch to an inappropriate area or a touch that was simply unwanted, or at least seems unwanted upon reflection much later on.

- The largest group of alleged victims (50.9%) was between the ages of 11 and 14; 27.3% were between the ages of 15 and17; 16% were between the ages of 8 and 10, and “nearly 6%” – as opposed to 5.x% - were under the age of 7. 80% were male. The report goes out of its way to make the most heinous crime seem a larger percentage than it apparently is, and does not seem fazed by the fact that the larger proportions are not with small children.

- There is a 20-category table of offenses. The most frequent acts: touching over the clothes – 52.6%, touching under the clothes – 44.9%, cleric performing oral sex – 26%, victim disrobed – 25.7%, and penile penetration or attempted penetration – 22.4%. The text quickly goes on to note that “relatively few (no percentage given) priests committed only the most minor acts”; no evidence for this assertion is given.

- It then entitles its Sec. 2.1 most oddly: “Estimates of the Prevalence of Sexual Abuse of Youths Under 18 Children in the United States”. Note that a) this is baldly ungrammatical and nonsensical as written and b) it is a rather strategically located ‘mistake’, attempting to conflate ‘children’ and ‘youths’ – defined as “under 18” and c) John Jay is apparently shifting focus here to the general US population, away from the RC priesthood.

- “Most estimates” for this population “are derived from forensic sources” (so we can only imagine how reliable they are, especially since the so flexibly-defined ‘reports’ came in when the stampede had already started). Then: “since it is not known how many people in the US experience a form of sexual abuse as children, some researchers select groups, or samples, of individuals to study and direct questions to them” – there is never any discussion of how to validate these ‘self-reported’ narratives. Or whether any effort is made to validate them at all; after all, it appears to be a canon of victimism that to examine an accusation for proof, corroborating evidence, or even truth constitutes a re-victimization of the alleged (and self-described) victim. How any determination is to be made at all is anybody’s guess, which is no doubt part of the reason so few actual trials have ever been held.

- It then goes on to note that studies of child sex abuse incidence (as distinguished from prevalence, neatly) “gained greater urgency after the cluster of day-care abuse cases in the 1980s made the issue one of acute public interest”. No mention of the fact or consequence thereof that most of those cases have now been overturned, their defendants released from years or decades of imprisonment and their prosecutions called into great question; no apparent insight into the fact that “acute public interest” doesn’t guarantee acute and accurate science and – indeed – so often militates against it.

- “A look at the victimization studies that focus on the sexual abuse of minor children [including those ‘youths’ under 18, or just the kids under – 12? 7? … John Jay doesn’t say] suggests [a rather weak verb, even though it imparts a patina of scientific restraint] that the problem is extensive”. Grammatically, we have lost the bouncing ball: are we referring to abuse of minors in the United States generally or abuse of minors by Catholic clergy? Yet by the text having brought it up in this arrangement of the text, un-careful readers may simply conflate ‘priest abuse’ and ‘extensive’. And we have to consider, especially by this point, just how careful these ‘studies’ of all the ‘reports’ really are.

- And then, admitting gently that they don’t have “data reflecting the prevalence of abusers”, yet they have “data from several studies reporting the prevalence of victimization”. This is a way of saying that they haven’t got any actual and validated/confirmed knowledge, but they have all the ‘knowledge’ gained by simply listening to ‘victim’ stories. Still, “the prevalence rates reported in these studies vary somewhat.” Alas. It then goes on to state that “27% of females and 16% of males disclosed a history of childhood sexual abuse; 42% of the males were likely to never have disclosed the experience to anyone whereas 33% of the females never disclosed.” [Yet only] “15.3% of females and 5.9% of males experienced some form of sexual assault” – so it would appear that most of the alleged abuse is not assaultive, which is mickle curious indeed, given the horrific scenarios taken up in the media.

- Following a peak of almost 150K cases “reported” in 1992, the numbers had been declining between 2-11% per year up to 2002 with 89K. So this priest abuse ‘crisis’, curiously, was taken up just as the whole thing is in notable decline.

- It quotes (disappointed) researchers who “conclude that – taken together – they suggest that at least part of the drop in cases has resulted from a decline in sexual abuse of children” – alas. [But, to pray in the spirit of John Jay, Nil Desperandum! Do not despair!]

- The charts are (once again) described in the headings as being about “Sexual Abuse” but not distinguishing the age – child or adult – of the alleged victim.

- Its Sec 3.1 is headed “Introduction to the Problem of Child Sexual Abuse by Adult Men”. “Sexually abusive behavior” – no definition – with “children under the age of 18” – conflating (and contradicting) its own prior category definitions.

- In a remarkable by-the-by, it classifies as “severe” only those acts “with penetration”, of which a later chart will show that only 23% qualify as either “penetration” or “attempted penetration” (and it will not further reveal how many of that 23% were “attempted”). And “some” of the priests accused of anything also displayed (our old stand-by) “behavioral problems, the most common of which were personality problems”. Of course, given the prevalence of ‘personality problems’ in American society in general – even if limited only to its adult members - the value of this last point is questionable. Unless it were put in simply to shore up a weak case.

- As noted, just over half of all priests accused were accused of a single instance. Just over 4% were accused of over 10 separate instances.

- The text then quickly and sooo helpfully includes a chart with responses to its survey question as to whether any accused might also be possibly guilty of other instances, called “potential allegations”, and then adds these “potential” allegations to the “formal” ones.

- Table 3.5.4. gives us a breakdown of the (alleged) victims by age and gender: Males: 1-7: 203; 8-10: 992; 11-14: 4282; 15-17: 2892. Females: 1-7: 284; 8-10: 398; 11-14: 734; 15-17: 502. It’s not clear from the text whether these numbers represent only ‘formal’ reports or include ‘potential’ reports as well.

- Table 3.5.7. shows that the category-offenses of Touching (Over or Under the clothes) were in a class by themselves (52% Over and 44% Under), with next-largest Cleric Performed Oral Sex weighing in at 26% and Victim Disrobed at 25%. Penile Penetration or Attempted (a huge gap here) is 22.4%. A whopping 20.7% is “unspecified sexual abuse”, which can’t be very horrific or John Jay would have milked it for all it was worth. And then 18.3% is categorized as “No Record”, which is not explained and makes no sense on its face.

- With a straight face the report says “Despite the gravity of the crime of child sexual abuse and the public policy interest in dealing with it, very little systematic data has been collected”; this is a stampede in search of a ‘startling noise’, after the fact. It also implies – though Jay ain’t gonna say it – that all these laws and uproars have been effected on the basis of almost no knowledge whatsoever.

- 62.2% of priests were charged with 1 count, 18.4% with 2 counts (no indication of the severity) for a total of 80.4% of all allegations being for 1 or 2 counts, and then you can start factoring in … - And out of those 4,392 priests, Table 3.7.7. demonstrates that 2,850 were for acts not involving “sex”, leaving 1,540 to include “sex”. How much “penetration” was achieved or attempted. Or sought. In any of these ‘cases’. How bad can sexual abuse be without ‘sex’? I’m just askin’.

- The characteristics of abusers seeking to entice their victims include speaking nice to them, giving them gifts, promising them things they’d like … which sounds like a how-to for anybody’s first date. But for abusers this is called ‘grooming’ – brrrrrr.

- At the end, the report notes that “the majority of alleged victims were post-pubescent, with only a small percentage of priests receiving allegations of abusing young children”. It then seeks to recover itself by stating in the next paragraph that “much of the sexual abuse reported involved serious sexual offenses”, although its own charts clearly indicate otherwise (even when the definitions are allowed to migrate in order to keep the numbers up – which is an intellectual abuse called ‘inflation’, to be added to another form of abuse called ‘conflation’ – but I digress).

- And lastly, in its discussion of “treatment” in Sec. 5.4, it merely provides a thumbnail review of sex treatment over the past 100 years and THEN states flatly that “there is no cure for sex offenders”, although it has a) previously said that so little is known about any of all this and b) hasn’t even established that “sex offenders” is a diagnostic criterion amenable to prognosis (and in fact it isn’t a clinically valid or accepted criterion).

But some types of treatment, John Jay graciously and primly allows, “appear to be successful at reducing recidivism”. No mention that most ‘sex offenders’ have the lowest recidivism rate except for murderers according to the DOJ and a sly sliding-over the question as to just what extent therapy of whatever sort has helped to achieve that low rate.

I hold no brief for the Catholic Church or for its hierarchy. Nor do I for a moment condone the sexual abuse of anybody by anybody else.

I do have a very deep interest in the political health of American society and culture. It cannot be good that such a slippery report was allowed to escape scrutiny by the national press, and that so many citizens were allowed to – and allowed themselves to – assume so vast and dense a concentration of heinous criminality, partly on the basis of such a report.

A mind-exercise: take those 109,000 or so priests from 1950-2002. Figure that each one of them had an average ministry-life of 40 years. On each day of those forty years, each priest would have had an average of X encounters with parishioners under the age of 18. Multiply that all up (if you can get a calculator that will go that high). That gives you (for purposes of the exercise) a number for the amount of encounters with ‘minors’ had by all U.S. priests, any one of which might have become ‘abusive’ (widely defined, for the sake of the exercise here).

Now against that figure, you’ve got 4,392, further reduced – if you wish – by some of the percentages and factors indicated in the report. Just what percentage of the total number of encounters ‘went bad’? I’d say you’ve got a figure far lower than the accident rate for first-world airlines (where folks die horrible deaths outright). Certainly, a rate favorably comparable to other professional groups and – as we keep seeing nowadays – the military, where female service-members are said to be sexually abused in massive numbers by their male colleagues, if the press releases are to be believed.

But it seems to be a given for these stampedes that a sense of perspective and even a moiety of critical thought or even plain old tire-kicking skepticism are out of bounds.

And you can make the case that a stampede, by definition, requires the loss of a sense of perspective and examination. As long as such an atmosphere prevails, buttressed by all the familiar slogans such as zero-tolerance, even-if-only-one, metaphorical-death-is-still-a-form-of-death, and all the Goebbelsian insistence on emotions trumping thought and doubt equaling treacherous opposition and skepticism proving secret connivance … as long as all that is allowed to remain in place in the atmosphere of our public life and deliberations, then we are going to keep seeing more of these stampedes.

And you might want to kick this tire: John Jay is a criminal-justice school. It might reasonably be imagined that JJ would stand to benefit more, the larger the 'crisis'. Should it be doing the defininitive 'counting' and 'defining'? And as always in matters of 'mania law', anytime the government police power stands to benefit, then everything has to be looked at with the strictest scrutiny, especially if 'expert opinion' would stand to benefit financially if the government police power were to 'win'.

And if the government police power is sufficiently stirred to extend itself even further than it already has, then there is no telling what will be proclaimed the next ‘outrage’, and what new class of outcasts is paraded in the queasy glare of klieg lights.

And how many ‘minors’ (however defined) are dead in Iraq, on our warrant as The People? How many of our troops, rather than being ‘saved’ from fancied depredations of ‘priests’ have been ‘saved’ into a free-swinging vengeance against the unbelievers so characteristic of the apocalyptic and war-worshipping proclivities of the Fundamentalist Ascendancy?

There appears to have been not so much priestly child-raping and orgiastic pedophilia as we had initially been led to believe. Perhaps a no-WMD situation avant la lettre. It says so little and yet so much about the American Catholic bishops that so much was allowed to proceed so far without principled action. And that perhaps is of relevance only to Catholics.

But it is of relevance to all of The People that Our capacity to discern is being so deeply and frequently assaulted, thereby weakening Our ability to ground and manage the affairs of Our society and the actions of Our government. To Our great detriment and the harm of the entire world community, and all its peoples, and all its children.



The ‘Boston Globe’ reports that the Supreme Judicial Court of Massachusetts has agreed to hear former priest Paul Shanley’s direct appeal of a lower court refusal to grant his Motion for a new trial.

This is actually important news far beyond the scope of Shanley’s personal legal toils and travails. He was convicted in February 2005 of "digitally raping" a 7-year-old; after the one plaintiff whom the DA finally dared to put up delivered a ‘recovered memory’ that differed substantially from the memories of other witnesses. After the trial, in a remarkable by-the-by, a juror mentioned that although the jury had a difficult time coming to its finding, the ultimately deciding factor was that if they didn’t then it would send ‘the wrong message’.

In other words, Shanley’s fate ultimately came down to social and political issues beyond the fact of his own provable guilt, which otherwise had not seemed so clear to the jury. Ach. Such is the fate of those who somehow become ‘symbols’ in Our new, symbolic national order.*

Shanley's record is not that of a monster. A vigorous and remarkably active ‘street priest’ in his younger days in the 1970s, his chosen métier was ‘street kids’. He was gay, although that means little as it stands, given the many variations on that theme. At some point in the 1980s, while a pastor at a well-to-do parish in the metro area, he allegedly called youths between the age of 6-12 out of class, raped or indecently assaulted them, and returned them to class. It was not until 2002 that several of those individuals, now 20 or so years older, suddenly ‘remembered’ it all.

That year, on January 2, the ‘Globe’ had initiated the third (or fourth, depending on how you count) phase of the priest sex-abuse campaigns. It was a new-media dream: salacious and outrageous actions alleged; a hierarchy that apparently had tried to deal with matters by taking actions along a spectrum from ‘get-him-help’ to outright ‘cover-up’; a Cardinal-Archbishop who was a self-assured Macher in local, national and Vatican politics and affairs; and an Archdiocese (many of them, ultimately) with an awful lot of money.

Hiding, I would add, in the deeper background were a dark gaggle of other elements: a national government bent upon preventive war that did not wish a replay of the early 1980s Catholic hierarchy’s influential support for nuclear disarmament and against military adventure; an engorged Fundamentalism now at the zenith of its Ascendancy and looking to supplant the Catholic Church’s position and stature in national affairs; a feminism that was looking to place its constituents into officially ‘male’ positions in the priesthood and that was possessed of an abiding resentment at the Church’s refusal to officially support the feminist abortion demands; an already-established sex-offender mania that had merged with a ‘child-abuse’ anxiety of substantial proportions; and a priesthood that appeared to be comprised of a very large percentage of gays, closeted or ‘out’.

The Church in the United States faced opponents without but also within, where ‘liberals’ were pressing for both recognition of abortion and of female priests, and ‘traditionalists’ were fuming about ‘gays’ in the priesthood and the hierarchy’s ‘softness’ and ‘liberalism’ on key issues. The ‘liberals’ were looking for a best-case (not to say fantasized) ‘new’ Church, and the ‘traditionalists’ were looking for a best-case (equally fantasized) return to the ‘old’ Church.

Anyhoo, in that year, by remarkable coincidence, the several former-youths suddenly ‘remembered’ their abuse, which they had apparently ‘repressed’, individually and collectively.

After exhaustive calculation and some last-minute re-arranging, the State chose to bring the case of only one of the rememberers forward, and it was on the gravamen of his case that Shanley was convicted in 2005. One might wonder about such a coincidence, but in modern victimist jurispraxis it is considered bad-form, and actually an overt act of re-victimizing, to question or even notice such ‘coincidences’. It is simply not done.

The key to the whole Appeal now appears to be this matter of ‘repressed memory’. The State and the victims had insisted and still do insist that the recently ‘discovered’ phenomenon of ‘repressed memory’ is valid, and thus admissible as evidence. This results in something most uncomfortably akin to ‘spectral evidence’.

We recall that in the Salem Witch Trials, the only ‘evidence’ was that the accusers – young girls – told the Court that they (and only they) could see the witchy form and actions of the accused (mostly, in the beginning, elderly single females). Predisposed – indeed required – by theology and religion to admit the existence of evil spirits active in this world and, logically, of the possibility of human connivance with them, the Court then attempted to blend this layer of belief with the principles of a law and jurisprudence struggling rather successfully to emerge from the Medieval mishmash of superstition into the hard, bright light of provable fact and due process.

The Justices did so – catastrophically – by accepting the validity of the ‘spectral evidence’. They wound up making such a lethal (many died in custody or on the gallows) hash that a few months later those Justices who had not resigned in disgust quietly destroyed the records of the trials after the Governor, on the orders of the Crown, stopped the trials and suppressed the use of ‘spectral evidence’. When the trials started up again for a final time, with no ‘spectral evidence’, the acquittal rate – by remarkable coincidence – skyrocketed and shortly thereafter the whole witch trial process was stopped permanently.

It was not a happy chapter in the annals of American law, but the blood of the condemned served to purchase hard-won advances in American evidentiary rules and due-process.

Fast-forward to Our own ultra-modern century (or so it seemed it would be in the 1990s and even in 2002). Certain scientists, or at least ‘experts’, all proud to be ‘advocates’, reported the major new discovery that a victim of an outrageous alleged act might indeed be so ‘traumatized’ that she (almost always ‘she’) would ‘forget’ the incident; her mind would bury it, repress it, and there it would lie, until at some point, for whatever congeries of reasons or catalysts, the said ‘memory’ would suddenly pop back to the surface of consciousness, almost like Titanic suddenly re-floating herself into the sea-lanes off Cape Race on a fine day decades after her ‘trauma’.

Furthermore, it was asserted that – sort of like a computer file – having been ‘un-accessed’ all these years, the ‘memory’ would be in almost perfect ‘shape’, hence accurate as an original photo or recording, and hence not only admissible as evidence but irrefutable in its perfection … and its accuracy. The victim-witness, therefore, by telling her ‘story’ as suddenly ‘remembered’, could take judge and jury on an almost time-machine-like journey back to the moment of the incident itself. No questions need be asked. Titanic would emerge from the depths whole and intact, utterly seaworthy, pristine as the moment before her ‘trauma’.

We live, let Us admit, in amazing times.

But let Us not then imagine that We should abandon all effort to kick tires. The times may be amazing; the tires probably not so much.

Frederick Crews, reviewing the book “Remembering Trauma” by the Harvard psychology professor Richard J. McNally, (‘The Trauma Trap’, The New York Review of Books, March 11, 2004, pp.37-40) recaps the key issues that militate against this ‘new discovery’ of repressed or recovered memory. What effects does psychological trauma have on memory? Is it possible that the species would have survived if it was not able to recall dangerous experiences (and thus avoid them in the future)? Can a ‘memory’ leave a discoverable trace in the chemistry or structure of the brain such that the actual presence of the ‘memory’ can be independently confirmed by someone other than the rememberer? (Outside of ‘Star Trek’ medical science or the Vulcan mind-meld?)

Does anybody really want to bear in mind that after their ‘rapists’ were put in prison and their lives rather comprehensively destroyed, children ‘raped’ during the preschool mania of the 1980s were discovered, years later, to be intact?

Even Holocaust survivors, comprehensively interviewed and evaluated, remembered their trauma; “traumatic experiences may not always remain in the forefront of memory, but unlike ‘repressed’ ones, they can be readily called to mind again”.

As is so often sadly the case in times of public mania, even the most responsible institutions fail Us. In 1999 the American Psychiatric Association gave a prestigious award in legal psychiatry to a book that – among other things – not only supported ‘repressed memory’, but asserted the existence of ritual-abuse cults and urged the admissibility of hypnotically-retrieved memories in court (although one such patient produced through such ‘therapy’ a clear and distinct memory of her father murdering a person who, upon investigation, was found never to have existed).

Further, Crews outlines how the Association has continually played with its diagnostic criteria in its master manual – the “Diagnostic and Statistical Manual” or DSM – in order to accommodate the ‘possibility’ of such non-physical maladies.

The American Psychological Association, under pressure from its many ‘therapist’ and ‘clinician’ members, refuses to issue a list of recommended therapies for traumatized individuals, for fear of either having to approve outright whackery (hypnotic regression, touch therapy, past lives, etc.) or, by excluding a therapy, depriving some members of their livelihood. We recall that this organization also had military psychologists on its military-psychology committee, and when doubts were raised about organization members’ participation in torture, the military-psychologists were assigned to ‘investigate’ and reported back that everything was just ducky, thank you.

Much like the American Bar Association has a military-law committee comprised largely of – wait for it – military lawyers, all of whom seem rather certain that military justice works just fine, thank ya vurry mutch. Go ahead, let yourself laugh – had more Germans laughed and not kept a straight face in the late-‘20s and early-‘30s, the little brute with the funny mustache might not have gone as far as he did.

So for example, one group of serious lab researchers note that their animals seem to recall any incident that happens to them accompanied by strong negative emotions (such as electrical shock), and will avoid what they perceive to be the source of the shock quite reliably from then on. Another group notes that some negative stimuli might be somehow suppressed in the interests of the animal’s better functioning. Another group speculates that if a memory is not often recalled, it might actually retain more of its original integrity (another question altogether, they admit) than a memory constantly accessed; the theory being that ‘memories’ are similar to genetic division: the more you do it, the greater the chance of a mistake, so conversely, the less you do it … and so on. None of the very reputable studies and scientific research teams were ‘advocating’ for anything and in the matter of human repressed memory they drew no conclusions, especially since – on top of everything else – they were experimenting with rats and there is no guarantee as to how memory works in human brains.

The scientific justification for recovered memory got a tad tendentious, once you got beyond the anecdotal ‘stories’. One researcher associated with “The California School of Professional Psychology” (is there a school for un-professional psychology?) has put out a longish paper**, chock full of proper style and usage. The best she can come up with is that repressed memory is ‘possible’, and that there’s no reason to assume that such a memory is any less reliable than a ‘continuous’ memory, i.e. one that you haven’t repressed. How it’s possible to distinguish between a false memory and an actual one; how it’s possible to know a repressed memory is ‘there’ if the patient doesn’t recall it; how it’s possible to study scientifically something that’s non-material and - let’s face it – pretty much ‘spectral’; how you can equate an adequate level of ‘psychological’ accuracy with the far more stringent and exacting level of accuracy required in a court of civil – let alone criminal – law … she’s not quite up to tackling those.

I’m not quite sure how far all this is beyond medieval theologians trading blows over how many angels can dance on the head of a pin or Chinese mandarins studying the unicorn to learn about the horse. So I’m not seeing the ‘progress’ here, let alone the ‘science’.

And in addition, it must – must – be presumed that a rememberer would never purposely lie, for money or revenge or just for laffs, say. In which case, We really are dealing with unicorns and not with horses. If you get my drift.

The basic gambit seems to be: if it’s been ‘proven scientifically’ that a ‘traumatizing’ (thus ‘negative emotional’) event can make you remember more vividly than anything else; and if that ‘memory’, is ‘repressed’; and if that ‘memory’, if not accessed, would actually be in better shape than your usual ‘remembered memories’ … well then, if there’s a perfectly scientifically established ‘possibility’ that all of these things might come together and create an utterly reliable, evidentiary-grade, ‘recovered memory’, then ‘repressed memory’ or ‘recovered memory’ is a ‘scientific fact’.

Even if its probablity is somewhere in the neighborhood of a gazillion to one, at the very best.

Even if all of the above works – and it don’t hardly – then there’s the question of whether you’re dealing with the type of hard science that sent man to the moon or the type of ‘sensitive’ science that somehow seems to have developed alongside the influence of Second Wave Feminism and victimism. The latter has less evidentiary value than the term ‘science’ would normally lead one to presume, but then again I’d say that you’re dealing here with ‘revolutionary science’, and the job of ‘revolutionary science’ is to ‘prove’ the revolution. Can you say 'Lysenko'?

And, after all, you don’t want to get too ‘logical’ and get in the way of a ‘good’ cause. Do you want to let an abstraction like ‘proof’ prevent the rescue necessary in such an emergency? Do you want to let a perpetrator escape? And surely achieving ‘closure’ and ‘preventing more outrage’ is as ‘good’ an objective as stamping out demonic activity in the world. Surely.

I haven’t seen any of the Court documents for this new round. I’m thinking that the Appeal is based on error coram nobis, a Court’s reconsideration on the basis that the original Decision or conviction was based on faulty information or a fraud committed upon the Court. There has been a steady and substantive scientific literature dealing with the gross difficulties of ‘recovered memory’ theory amd the whole sex-offender thing in general.***

In the logic of evolutionary survival, the mind appears more liable to ‘remember’ something seriously ‘negative’ rather than to forget it. And if under overwhelming negative pressure a ‘memory’ is indeed encoded, then there is every possibility that it will be deformed by that pressure when it is laid down in the memory. And that upon being ‘recovered’, rising to consciousness, there is every possibility that it will be somehow impacted by the layers of will, desire, and consciousness through which it will ‘pass’ on its route to the ‘surface’, and even by the capacity or incapacities of the host mind to process information in the first place.

And beyond that, there is the always-classic scientific knowledge – accepted even by prosecutors – that ‘eyewitness testimony, while the most ‘convincing’ to a jury, is hugely shot through with the potential for mistakes. Any two ‘eyewitnesses’ will differ in what they are ‘sure’ that they ‘saw’. And that possibility is hugely increased with the passage of time – especially decades.

Since all of this information was public and well-known before the ‘repressed memory’ cases, then perhaps the defense is going to go the route of claiming that the Court was – to be most polite about it – misinformed. Surely, in many of the sex-offense cases, even the Supreme Court has simply refused to ‘notice’ even the government’s own statistics as to the lower recidivism and dangerousness rates among such offenders as a group.

But there is a massive body of scientific and legal research and study indicating that many of the most ‘popular’ laws in this overall mania were passed on the basis of incorrect information or without considering the large body of professional material that contradicts the most favored presumptions on which the laws are based; and that many of even the Supreme Court’s Decisions in the assorted cases having to do with sexual and domestic violence are based on incomprehensibly one-sided selectivity as to what ‘facts’ and ‘knowledge’ are accepted as valid. Selectivity in facts to produce a desired outcome … sounds familiar. Can We say ‘Iraq’?

We have to stop this monstrously baaad habit of accepting uncritically ‘selective facts’; this hugely dangerous propensity, so favored by assorted Advocacies in stampeding public opinion into supporting – or at least acquiescing in – their demanded agendas and ‘reforms’, has migrated to foreign affairs (‘Iraq’ again) and the waging of a type of war that was condemned by the free and victorious nations at Nuremberg.

And it is no coincidence that that type of war, waged by a government authority that refuses to see any but the ‘facts’ most compatible with its own dreams and desires, results in military failure, at huge cost. And full-spectrum cost: in foreign credibility, militarily, economically, physically, ethically, morally. Think of what the Pearl Harbor ‘victory’ did to the Japanese.

I wonder too if We are ready to see exactly how dangerous the ‘revolutionary’ metaphor and mindset and agenda is, not only to Our democratic politics but to Our law. Recall how Felix Dzherzinsky put it: “The Cheka does not judge and it does not investigate: it strikes.” The earliest Soviet equivalent of the FBI, the grand-daddy of the KGB, saw itself not as a ‘law enforcement’ agency, but as the Sword and the Shield of the Revolution: it would thwart and strike at any designated enemy of the Revolution ‘by any means necessary’. It was not there to enforce any law or any justice except the law of the Revolution and of revolutionary justice. And the law of Revolution is that you may never oppose the Revolution. And the law of revolutionary justice is that if you have opposed the Revolution – or we even think that you have, or that you might – then we will strike you down … that is what Soviet ‘law enforcement’ was for.

Revolutionary law is ‘the law at war’. Revolutionary justice is simply the summary elimination of anybody who opposes the Revolution. (The neocon supporters of the Iraq occupation and of torture and preventative-detention refer now to ‘combat law’ or the ‘law at war’, as if they had just thought it up, and as if it were as American as apple-pie.)

Now imagine, as even Gerald Ford acknowledged, that the country has been (and for decades) in the throes of several simultaneous ‘revolutions’. And that the advocates of the various revolutions see themselves, and comport themselves, as ‘revolutionaries’. There is fierce urgency, an unbending and elite and exclusive purity, an implacable hostility to any opposition or doubt or dissent, in the revolutionary mind and modus. These are not characteristics that best suit one for participation in democratic politics, nor is the polity grounded in the American Constitution going to be a suitable vessel for the revolutionaries’ efforts. If you get my drift.

Lincoln himself resisted the fierce urgencies of the abolitionists, and was roundly condemned by them. He saw that no matter how evil slavery was, to simply turn the country around on a dime in 1861 would quickly destroy whatever hope there was of keeping the country together. Had he espoused the abolitionist’s position in 1860 – a position not shared by the majority of citizens even in the North – he would not even have reached the Presidency.

Nor can We accept with a resigned smile the claim – now being floated – that ‘it takes irrational people to get rational things done’. The past decades of calculated or frenzied irrationality, in no matter how ‘good’ a cause, have wreaked great havoc.

And the fact that it is mostly down below the waterline, out of sight to the average person, means as little as did the relative ‘invisibility’ of Titanic’s damage … time would tell, and by then it would be too late. More on all this as things go on.

As I’ve said, the doings of the domestic and sexual violence legislation have resulted in deep, structural damage to American law and polity. That has to be corrected. We are running out of time. That is the fierce urgency of now.


*See also Alexander Cockburn’s article “Back to Salem’ on Counterpunch on February 19, 2005 here. ·

**Constance Dalenberg, ‘Recovered Memory and the Daubert Criteria’, in “Trauma, Violence, & Abuse”, Vol. 7, No. 4, October 2006, pp. 274-310. ·

*** See, for example, the entire 600 page double issue of “Psychiatry, Public Policy, and Law”, Vol. 4, Nos. 1-2, March-June 1998. This is a hefty collection of professional articles from law and psychiatry and public policy experts, all of them tackling one or another of the relevant problems in the sex-offense and domestic-violence realms. Note that it was compiled in 1998, by which time all of the core problems and their projected consequences were evident to the professions involved.

Tuesday, June 23, 2009


The case of Smith v. Doe* was decided by the US Supreme Court in 2003. It was the first time the Court had to decide whether the numerous State sex-offender laws violated the Ex post facto prohibition of the US Constitution: that punishments for a crime cannot be assigned ‘retroactively’, that is, by laws that were passed after the crime was committed or after the defendant was either convicted or entered into a plea arrangement.

Interestingly, the case reached the Court after the State of Alaska appealed the decision of the relevant Appeals Court which had overturned a District Court ruling that the sex-offender registration and notification requirements were not ‘punitive’ but merely regulatory. The Appeals Court, in other words, overturned that District Court and said that Yes, the requirements were indeed punitive and therefore could not be applied to persons convicted or plea-arranged before the requirements were passed by State legislation (usually, the date of 1995 is a handy general benchmark for passage of various State requirements).

The Supreme Court overturned the Appeals Court decision, thereby establishing that the various State laws’ registration and notification requirements were not punitive but were merely ‘regulatory’, thus that the requirements were not imposing additional punishments. And thus the Ex post facto prohibition, which only applies to criminal punishments, did not apply and was not breached.

Interestingly, the Supreme Court divided 6-3 in its decision. The three Dissents are well worth reading for their astute compilation of observations as to how the requirements are indeed punishing in their effects, even if the State legislatures insist that their intent is purely administrative and regulatory, and not intended to punish sex-offenders as individuals or as a class of convictees. And one of the six Justices, Souter, actually stated in his separate Concurrence that it’s 50-50 (he uses the phrase “rough equipoise”) whether these laws are indeed punitive rather than regulatory. In fact, he says, if it weren't for the necessity to presume that a legislature would never intentionally pass an unconstitutional law, he says, he would have voted against this thing (which would have made it a 5-4 Decision).

So the question of whether these laws are punitive in effect even if not also punitive in intent, is a key foundational concern as to the continued official legality of all of these laws. Not even the Supreme Court is really and completely sure about it.

Should the Court decide in the future that these laws are indeed punitive in effect, then (generally) pre-1995 convictees or pleas cannot be required to submit to the registration requirements. And, of course, those requirements are growing like Topsy all the time, at both the State and Federal level, as additional ‘requirements’ and expanded ‘definitions’ of ‘sex offender’ are brought into play; the Adam Walsh Act is just the most notorious recent example.

The Court, as the Dissenting Justices Stevens and Ginsburg noted clearly, can only defend its ‘nonpunitive’ holding by focusing narrowly on the actual text of the laws and on the presumption that legislatures and legislators would not deliberately or knowingly try to subvert the Constitution when they pass laws - and that is probably a too-big presumption to be making nowadays. Which says a lot about just how dangerous the stampede of 'mania law' can be to Constitutional integrity.

And thus too, the Court’s Concurring Justices do not - cannot - allow themselves to notice the tremendous ‘social context’ of the public attitude toward the so-called sex-offender, a level of emotional uproar that can arguably be characterized as a public ‘mania’.

Thus, when the Court finds that merely publishing existing public records of convictions and pleas on the Internet is nothing but a technologically up-to-date method of providing what folks could find out for themselves anyway, the Court ignores a great deal of what is going on in the country beyond the bare text of the laws. For one thing, most folks aren’t going to spend much time going down to the courthouse or going to court-case websites in order to trawl for particular cases, but if it's all there at the click of a mouse, then that's a whole different ball of wax. It’s probably true that nobody wants his or her (but so often ‘his’ in these sex-offense matters) unhappier life-experiences made widely and instantly available on the Internet.

And for a second thing, that’s especially true when one’s particular type of offense is the subject of a sustained public frenzy. IThe Internet bit is more the equivalent of being forced to wear a colored star on one’s clothes than not; indeed some States consider special license-plates, which is an ominous slide toward the star-on-your-coat requirement.

Nor does the Court ‘find’ that many registered sex-offenders (RSOs) experience much harm from the requirements (and the publicity). But that takes a lot of not-noticing on the Court’s part, although it’s also highly probable that large numbers of RSOs are already so publicity-averse that they fear attracting any more ‘attention’ even by publicly reporting their difficulties with housing, employment, travel, and general societal activity.

So it’s not at all certain that these laws will continue to ‘enjoy’ their Constitutional status, at least in the matter of being retroactively applicable to convictees/pleas that predate 1995 or so.

And as for being justified as ‘regulatory schemes’ in the service of public health and safety, the laws are also dubious. Their necessity is based, the States claim (and the Court still finds) on the danger posed by “the high risk of re-offending”. But the Court has been highly selective in the ‘scientific and expert’ opinion that allegedly supports the ‘high recidivism’ assertion. Indeed, the Court mentions only one study, which dealt with child-molestation, and ‘found’ that such persons might not commit a second offense for perhaps 20 years after their first conviction. Child-molestation is only one small fraction of the sex-offense menu, and it’s a legitimate question whether that study (done in the late 1980s) was properly conducted, and with a scientifically neutral attitude toward the outcome.

Sooner or later the rather extraordinary low-recidivism rate of most sex-offender categories will be ‘noticed’, and when that happens then the ‘pool’ of sex-offenses whose perpetrators pose a genuine and grave risk to public safety will shrink, probably by a very large percentage, and that will in turn raise great questions as to the justification for claiming a government’s overriding power to act to preserve public safety.

Nor can one say that these laws and their requirements are just the same as requiring persons to get drivers licenses or submit to professional accreditation. Most folks don’t mind being identified publicly as motor-vehicle operators or as doctors, lawyers, hair-stylists or any other ‘accreditation-required’ career persons. On the other hand, most people, especially in these manic times, would certainly not want to be publicly noted as ‘sex offenders’, or for that matter as any member of a conviction-category. We need look no further than the Beltway these days to see how many ‘upstanding’ individuals are dead-set on trying to avoid being publicly identified with assorted crimes they have or may have committed.

Justice Ginsburg, one of the Dissenters, also adds that she is very concerned that these laws and their registration schemes provide utterly no possibility for ‘rehabilitation’ – they either presume that no rehabilitation is possible or don’t really consider an RSO’s ‘rehabilitating’ himself to be relevant. And if rehabilitation is irrelevant, then one has to question just what the law is trying to do. Supporters might claim that even if it’s possible to rehabilitate, it’s not probable – which would be a reasonable possibility only in a very small fraction of the many types of sex-offense.

Or supporters might simply claim that the ‘damage and harm’ caused by a sex-offense poses such a threat that a government can afford to take no chances – but the level of damage and harm so great is only caused by a small fraction of sex-offense types. And even then, one has to note that the human species has survived the assorted downsides of sexual activity for thousands of years: with all respect to 'pain', it is hardly outlandish to imagine that the members of the species are far more resilient than victimology gives credit for. Nor has anyone actually gotten around yet to establishing just how much - or even how to credibly measure - 'pain' and 'harm'; it's not enough simply to repeat the mantra that this or that is 'traumatizing' and that therefore substantive corrosion of the Constitution is necessary and justified.

Nor is ‘zero tolerance’ or the related ‘if only just one’ justification sufficient here. The complex of sex-offense laws and the public mania constitute a tremendously ominous development in American law, legislation, jurisprudence, politics, culture, and society. We as a society are starting to make the kind of laws, in a general atmosphere of public agitation, that marked the early stages of totalitarian rule in far too many countries in the last seventy-five years.

'Emergencies’ of ‘public safety’ that required ‘suspension’ of rights for certain classes of citizens or persons; the ever-expanding definitions of what and who constituted a public ‘threat’; the abandonment by courts of any pretense of impartiality and of long-established principles of process and procedure; the ever-expanding scope of the police power of the government; residency restrictions; ‘civil’ commitment, especially on the basis of vague or elastic definitions of ‘mental problems’; all assisted by a sensation-and-profit minded media … all of these are ominous indicators.

The creation of certain ‘classes’ of person or citizen for whom the usual protections of law do not apply can never spell anything but danger for a Western society. The ‘kulaks’ of early Soviet civic demonology, and the numerous ‘classes’ designated as dangerous or odious by the Nazi regime, are only the most notorious examples of how publics and citizenries can be whipped up into the most lethal and vicious ‘hunts’. And that never ends well – and certainly not for a democracy.

Many members of the SO and SO-support community are naturally concerned for particular cases, and that’s very understandable. I’d just like to say a word of what I hope is taken for encouragement: this entire sex-offense law complex is balanced, like an upside down pyramid, on a verrrrry iffy ‘ground’, i.e. that these laws a) are not punitive but rather ‘regulatory’ and that they cause no intolerable problems for registrants; b) that there is a high recidivism rate among ‘sex offenders’ as a (far too) generalized ‘class’; and that c) the Registry requirements and civil-commitment and residency restrictions are actually effective in what they claim they are there to do, which is to ‘protect’ the public and especially ‘the children’.

None of these grounds is accurate, and if you can see that and can’t imagine what you’re missing that the Courts (State and Federal) can ‘see’, you are not losing your mind – rather, the Courts up until now have been mostly avoiding the very real and clearly definable ‘problems’ with the Registry schemes. That won’t last forever, and you can go on a number of sites among the SO-support community to see that individual State courts at all levels and even some Federal District and Circuit and Appeals Courts, some courageous judges and justices at all levels, are seeing that now.

And at this point, even legislators at all levels are starting to see that as well, even if for no other reason than the country and the States no longer have the cash to throw at a politically ‘popular’ but deeply and even Constitutionally harmful scheme.


*The case reference is 538 U.S. 84 (2003); it can be Googled as “Smith v. Doe”, and the Cornell University website maintains an excellent cache of all Supreme Court decisions, with Summary, Opinion, Concurrences, and Dissents. The URL for this case on the Cornell site is


A news blurb over on Constitutionalfights is verrrry ominous. A bill has been introduced in both the Senate and House entitled the SORT Act of 2009 (S.1146, H.2612). The Senate version has been read twice and sent to the Judiciary Committee. It’s only a few pages long and worth a few minutes to read it yourself. The House version is here.

The Senate version was introduced by Schumer of New York, and the House version by King of New York, and since they both seek funding and authority for a New York-based organization, you can imagine that it’s all a bit of hometown pork. But it’s wayyyy more than that.

The organization in question is the non-profit corporation Parents for Megan’s Law, Inc. It has to be recalled that it was the murder of Megan Kanka in the mid-1990s, by a deeply troubled man living across the street from her, that became the touch-point for the sex-offense Registration and Notification wildfire that is still, clearly, burning out of control.

It also has to be recalled that whereas the ‘accepted’ version of events is that nobody knew the man was a potential danger and so a Registration and Notification regime would prevent that tragedy from happening by giving parents ‘information’, yet at the time of the killing the other residents on the street mentioned to local reporters that they all knew the man had a history and was dangerous. Nor did the Kankas themselves deny that they had already known.

But somehow a different version of events was erected into ‘reality’ and things have gone where they have gone.

Now this bill (I’m focusing on the Senate version): The organization has made itself into a clearing-house of community education and also a rape-crisis center and a ‘support’ resource for persons (“child and adult victims” it calls them) who otherwise would not want to go public with what they consider to be their situations. This starts to shade into some verrry deep psychological and therapeutic territory, and that includes a whole bunch of concerns about ‘therapy’ that ‘moves’ a patient – child or adult – toward a particular legal outcome. Which is a lot for a non-profit volunteer-type organization to be taking on. We recall the disastrous pre-school day-care cases of the 1980s.

And the organization also relays ‘tips’ on sex-offenders to the relevant police authorities.

Persons can anonymously send in ‘tips’ and this organization will forward them (they like to call it a “criminal justice referral”). The organization conducted its own ‘survey’ which – who can be surprised? – discovered that a quarter (100,000 or so) of registered sex offenders were not complying with the laws (those registration and notification laws that the Kanka case – whatever its actual elements – helped bring about).

And this ‘tip’ thing suddenly reveals itself to be the innocent looking tip of a monstrous berg. Because somehow the organization is either looking for, or possibly already has, access to the National Criminal Information Databases (the NCIC), the stuff policemen can look up on the computers in their patrol cars.

It claims that it needs this authority to “effectively evaluate the veracity of tips received, proactively research noncompliant registrants or registrants engaged in criminal activities, and provide law enforcement with viable accurate information for follow-up action”. Which are all things that – not to put too fine a point on it – only police forces are authorized to do.

And just where do you put “proactive” research of (allegedly) noncompliant registrants? This is something that is very close to unconstitutional for the government to do (think of Tom Cruise’s unit in the movie “Minority Report”, arresting people who have been ‘seen’ by a psychic being committing a crime in the future and being imprisoned before they do so).

So is this Bill an attempt to let civilians do something that the government is constitutionally prohibited from doing? Because nobody should be willing to let such a feral camel’s nose under the Constitutional tent. Or is this Bill an attempt to actually force police departments – that are increasingly coming to realize that the vast sex-offense registration and notification apparatus is a useless waste of precious police resources – to keep going through the motions? Because I am going to bet that if any police agency declines to ‘follow up’on a "referral" that the organization has decided to make, then the organization will threaten to go to the media and the mayor with placards and all the now-usual panoply of props and players. In other words, this is an attempt to force the police to stay in a losing, and very badly-conceived, game, and to keep up appearances (and 'numbers' and funding and you can see where all this goes).

Worse, this Bill and this organization seek to do this by demanding what is essentially police authority. Why not give this organization autos or even paddy wagons equipped with emergency lights, sirens, and radios? Why not given them arrest powers like bounty-hunters? The police have access to the NCIC databases because they are the police: they are trained and they are sworn and they are – ideally – accountable to extensive procedural requirements. And, as noted above, they are constitutionally guided as to what they can and cannot do. None of this is true of this non-profit organization which has, it must be said, an axe it needs to grind. And to keep grinding.

In a bit of sleazy wording, the Bill piously notes that the organization needs the NCIC access to carry out its “duties and responsibilities”. The organization may well have adopted its own goals and agenda, but it has utterly no official duties and responsibilities that require it to carry on what is very much official police work. Nor is the NCIC access simply a way to help the organization “assist and support law enforcement agencies in administration of criminal justice functions”. That’s like giving the Salvation Army not just sandwich-and-coffee trucks to pass out refreshment to firemen at major fires, but actually giving the Salvation Army real fire-trucks to join in fighting the fire.

And the Bill is so loosely worded here (Sec. 3.c.) that it opens up the possibility of this organization, or any other non-profit volunteer organization, expanding its interests beyond sex-offense matters to any other criminal offense or records (or perhaps tax-watchdog organizations accessing government income tax files). And if that happens, then what if a for-profit organization decides it wants to try doing this sort of thing? We’ll have the equivalent of Blackwater ‘contractors’ loose all over the place doing pretty much the same thing the official forces do, except without the constitutional responsibilities or restraints.

This organization already has – as the Bill acknowledges – the resources of “existing Internet sex offender registries and public information”.

The bottom-line here (Sec. 3.d.) is that the organization wants a million dollars a year for the next five years. But, really, there is a much deeper line in this bottomless thing: the organization wants to start garnering police-authority. And if this Bill is passed, then it will be only ‘the next logical step’ to give it all sorts of other police authority. And to give other similar organizations such authority.

Like the sex-offense enabling legislation itself, this is a baaad Bill, a baaad and indeed constitutionally dangerous idea, and it is based on assertions and claims that are not exactly – ummm – true.

And for that matter, I’d say it’s a classic example of what’s gone wrong on Capitol Hill: you would have to say that Schumer has done absolutely no serious long-term thinking about the consequences of this Bill. Either that or he has no working knowledge of the purposes and dynamics of this government’s – or any government’s – monopoly of officially-sanctioned use of violence through its police power and the role of Constitutional limitations in actually keeping that role legitimate.

This cannot end well.

And should not even be allowed to go any farther than it already has. The government has gotten itself into this frakking mess by indulging and fueling this entire unholy sex-offense mania to begin with. Now, with the actual truth and its consequences starting to become unavoidably clear, there is a groundswell from interested parties to try to plaster over the widening holes and keep the show on the road. And to do so by getting the government to dole out its constitutional authority to such interested parties as are willing to make a jihad out of their Cause, even if the government can no longer manage to keep the lid on the problems with the whole thing in the first place.

Government’s only course here is to prevent any such dispersal of its own authority. And instead, to own up to its responsibility – at last – to look carefully at the whole mania and its constitutive elements and start to fix the things that it has rather largely broken. And - We can only hope - with more success than it has had fixing things up in Iraq.

Monday, June 22, 2009


Over on Moral Outrage there is a thought-provoking piece relating the experiences of females caught up in the web of the sex-offense mania and the matrix of laws it is still churning out.
I’ve gone over the piece (about 25 pages) and jotted down some thoughts. The piece didn’t print-out paginated, so I’ll go along in the text and place in quotes the passage that I’m commenting on; the passages will be in sequence as I go along the text page by page.

“On April 7, 1997, Cassandra Sorenson-Grohall (a 28 year-old former teacher at an ‘alternative high school’) was sentenced to 4 years in prison for having sex with a [15 year-old, heavily-muscled] delinquent who initiated the liaison by raping her while she visited him at home and then, apparently, sustained it by threats and manipulation.”

The first thing that strikes me is the utterly predictable complexity of introducing criminal-justice process into the hugely mushy area of intimate human relations. When in the very early 1990s the feminist lobbies first began pressuring the Congress and the courts to get the government police-power involved in this area, not a few judges and even Chief Justice Rehnquist observed that in addition to hugely increasing the case-load of the courts, such an initiative would put evidence-based legal process in the almost impossible position of adjudicating in what may well come down to he-said-she-said situations. The retort of the lobbies was that such a refusal to involve themselves indicated that Congress and the courts were ‘insensitive’ and not ‘empathetic’ to the problems that women faced.

While I don’t deny that intimate relations are fraught with complexities, and that given the volatility of the human being – male as well as female – all sorts of unhappy and even some violent outcomes are inevitable, and even that there can be a certain old-boy insensitivity (as there is probably now a certain old-girl sensitivity, if I may so characterize it) I don’t think the courts’ very substantial reservations were at all without merit. After all, if you’re going to be deploying the awesome police-power of the government against an individual (let alone a ‘class’ or ‘gender’ of individuals), then you have to ensure that there will be actual evidence that can be used to justify your awesome intrusion – including deprivation of property, liberty, life or even reputation – into the life of any individual citizen.

After all, that was the great motivation of the Framers: that the awesome government police power not be deployed against the citizenry on the unsubstantiated whim of Crown or Parliament. In some very real ways, this entire current foray, hydra-headed (domestic violence, sex-offense), has merely substituted ‘victim’ for Crown or Parliament. In either case, the dynamics have remained disconcertingly and ominously the same. And in either case the dangers to the Constitutional vision remain almost ‘classically’ similar.

Additionally, simply limiting ourselves here to the sex-offense mania, there is the crucial problem of ‘definitions’: a ‘child’ is defined along a spectrum from birth to the end of the 17th year: this is a very broad spectrum, encompassing everything from neo-nates to military recruits. That’s a verrrry broad spectrum about which to be making ‘all-inclusive’ and increasingly ‘zero-tolerance’ laws.

Indeed, the whole idea of making a ‘zero-tolerance’ effort is a guarantee of an endless ‘war’ against the subject behaviors. And – to be discussed later – an endless ‘business’ or an endless Cause.

And, as I said above, to apply the government police or regulatory power in such a quest against the most intimate relational matters between humans involved – for whatever reasons or purposes – with each other, is going to seriously erode the ‘boundaries’ that up until the past 20 years or so have always limited the government’s police or regulatory interference in the private lives of the citizenry.

The same definitional problems arise with the terms “rape” and “abuse”. “Rape” now legally covers something far more than what it had before, and can legally – if not wisely – be applied to relations between married persons or between persons on a date. “Abuse” now legally covers a huge swath of behaviors or attitudes or even ‘atmosphere’, and ‘sexual abuse’ might not even include any physical contact, or contact that does not involve genital activity at all.

The possibilities for “mischief” – in the Framers’ quaint but hardly inaccurate understatement – are vast. False charges can be made; evidence can be mushy if not positively “spectral” (i.e. visible only to the person making the complaint) in the worst manner of medieval witchcraft trials. Government agents are once again at liberty to introduce, induce, or support such mushy evidence to further government’s endless quest – once firmly curtailed by the Constitutional generation – to control the lives and resources and even the mentality of its citizens.

The fact that the Democrats – and later the Republicans – sought to please a potentially huge voter bloc, or that an increasingly corporate government seeks to habituate its citizens to its intrusions, should not blind the citizenry to the profound dangers that such ‘sensitive’ or ‘progressive’ expansion of government’s police and regulatory authority pose. There is a reason why Constitutional government seems to be increasingly frail and ineffective nowadays: the core vision of the Framers has effectively been abandoned (by the Beltway and the Branches of government) or forgotten (by too many citizens).

“Dutifully performing her assigned role in the ‘degradation ritual’” … The use of this term accurately warns us of the ominous and hardly-new dynamics that are at work beneath the surfaces of this mania. Scapegoating, the governmental erection of a particular ‘class’ (or gender) as ‘evil’, against whom therefore repressions otherwise prohibited might be freely exercised, and whose unredeemable and irremediable ‘evi’ constitutes an eternal threat that creates an ongoing state of ‘emergency’ (the Nebraska Legislature, if I recall correctly, just a month or so ago passed a sex-offense Bill that even states in its opening section that one purpose of the Bill is “to declare an emergency” – after all these years). And on the basis of that on-going ‘emergency’ the Constitutional limitations, as if in wartime, must be suspended or severely weakened; indeed, as in wartime or even worse than wartime, the law must ‘go to war’, and increasingly now, to do so preventively (can you say Iraq War?).

The above, incomplete list combines elements that played a great role in Leninist class-warfare, in Nazi propaganda and jurisprudence directed against the declared ‘enemies’ of the German Volk and ‘traitors’ to German purity, and in Maoist Cultural Revolution against those enemies who, in Mao’s eyes, just didn’t get it. These elements cannot be introduced into the American Constitutional political and legal framework without grave dangers; they cannot simply be ‘baptized’ – as it were – into a ‘good’ cause.

“ … [P]arroting the clichés of CSA victimologists …” The CSA here stands, I imagine, for Child Sex Abuse. This entire ‘victimology’ issue requires much more careful examination than it has received. In the first place, it seems well-intentioned, but since its success depends upon the expansion of the government police and regulatory power, then it needs strict scrutiny indeed.
As best I can make out, the essential points of ‘victimology’ are a misch of psychological assertions and politically shrewd but dangerous demands: A) anybody who claims to be a victim – of anything – is; B) as such, the victim’s claims or charges must be presumed to be true; C) to doubt the truth of the charges is to ‘blame the victim’ or to ‘re-victimize’ the victim all over again; D) anyone who doubts the victim is insensitive and is quite possibly in cahoots with the alleged victimizer – and in either case does not deserve to be heard in public discourse; E) any type of victimization creates such powerful and lasting damage to the victim that it constitutes an ‘emergency’ of national proportions.

When you realize that the government police power – with its inborn desire to always increase its scope – is inextricably tied into ‘victimhood’, then you might substitute the phrase ‘government police power’ for ‘victim’ in the preceding paragraph’s recitations and see just how profoundly dangerous this whole initiative is to constitutional government and to the Republic itself.

The ‘Child’ element is a legitimate concern, surely. But it is also hugely emotionally freighted, especially in an era when many parents are no longer able to spend as much time with their children (and when there are so many abortions) – the possibilities of a deep, widespread psychiatric phenomenon taking place are very great. So, for example, parents feeling both anxious and guilty about their limited interaction with their children may well be deeply susceptible to a society-wide, government-supported, media-amplified exercise of projection – whereby one’s own negative feelings are presumed to be actually resident in other persons beyond one’s ‘good’ self; or ‘splitting’ – whereby an unbearable sense of one’s own hash of ‘goodness’ and ‘evil’ is resolved by imagining oneself as ‘good’ and some ‘other’, somebody or a group ‘out there’ as ‘evil’ (from which it quickly follows that one is permitted, perhaps even required, to righteously exercise all manner of violence against those ‘others’).

As I just implied, social psychology would consider it verrry significant that this concern for ‘children’ arose not long after abortion became established in the culture. It’s also possible from the point of view of political tactics and strategy that the concern – mania – in regard to ‘sex offenders’ and especially ‘children’ serves no small purpose as a distraction from the implications of a widespread push for general abortion rights. I am not attempting to reduce such complex a societal phenomenon to just those points, but they are most surely elements of the whole thing.

And this of course feeds into the hugely stubborn human characteristic of mistrusting and suspecting ‘others’ in general, and even of ‘raising up’ some ‘other’ or group of ‘others’ upon whom to vent one’s aggressions, as an individual or as a society. And Lenin, Stalin, Hitler, and Mao are only the biggest practitioners of taking shrewd advantage of this hugely-fraught human characteristic for their own political purposes: the ‘kulaks’, the ‘Jews’, the ‘Poles’, the ‘Slavic Untermensch’, the ‘revisionists’ and the ‘running-dog lackeys of imperialism’ were all violently repressed on the basis of this political manipulation of our human tendency to divide humankind into ‘us’ and ‘them’. And let’s not forget the ‘witches’ – male and female – throughout the sad pre-Enlightenment ages in the West.

And Freud – in one of his insights that is now considered politically incorrect – was famous for his claim that children, far from being ‘innocent’ of sexuality, are indeed responding to it from almost the beginning of their lives. Which is supported by the probability that if evolution has very deeply and profoundly prepared humans – like all species –to ensure the survival of the species through reproduction (requiring the ‘sex act’ and all that leads up to it) then it is hardly surprising that from an early age human children respond to these deeply embedded capacities as they do to language and motor skills. [Let me say here that I in no way support the infliction of genital sexual experience or other overt sexual experience by adults on children; children may have potentials, but those potentials should not be too-early reinforced by action. Of course, whether a teen-ager is a ‘child’ in the same way a toddler is in this regard, is another question altogether – though again, I am not advocating sexual activity between chronological adults and ‘children’.]

And so too with the definition of ‘abuse’: is it a matter of a specific type of act and an intention to inflict damage? Or is it only a matter of an act itself, regardless of intent? And what sort of ‘act’ – especially without the need for ‘intention’ – constitutes ‘abuse’? What constitutes ‘trauma’ as opposed to ‘pain’? What are the characteristics of human beings that enable them to flourish even after – or perhaps even because of – trauma? What are the possibilities that humans can handle some level of ‘trauma’ the same way they resiliently handle microbes and infections, with their systems not simply recovering but actually deriving increased strength and robustness? Has ‘trauma’ been both too-widely defined and even fetish-ized?

These are just a very few of the massive questions – psychological, societal, cultural, as well as legal – that have not been carefully considered. Especially in the making of such broad laws that also, in this mania, result in such massive intrusions upon an accused citizen’s life and love and work.

Ms. Sorenson-Grohall was described by “psychologists” as not being a “sexual predator”. The role of psychologists and ‘experts’ in all of this mania must be carefully considered. The genuine professional literature at the highest levels is extremely wary of the entire sex-offense mania (See, for example, the double-issue of the journal “Psychology, Public Policy, and Law” for March-June 1998, or simply google ‘repressed memory’.) But there are many levels of ‘therapists’ below full-scale professional psychologists and psychiatrists, especially those who conduct careful research whose results are then subjected to assessment by equally competent peers. Indeed, almost anybody can set themselves up as a ‘therapist’ or even ‘psychotherapist’; and so too just about anybody can set up as an ‘expert’, replete with a company or a think-tank or some such incorporated entity. Indeed this has become something of an ‘industry’, with the benefit of much status and profit in certain circles. None of which is a guarantee of careful, objective opinion representing the fruit of much professional education, experience, study, research. The average citizen can’t simply assume that what an ‘expert’ says is accurate, or that the ‘expert’ is actually in possession of wide and deep training and experience, producing sober and careful findings and opinions that have been reviewed by equally capable peers.

And of course, given the complex interiority of much of the subject matter (a person’s – perhaps even a child’s – feelings, imaginings, memories and such) then even the best professional opinions may differ. It’s not like we are dealing with obvious, clear-cut material here.

“ … [T]he draconian sentence was based on two ludicrous assumptions: that a juvenile delinquent was old and mature enough to form the intent of mens rea to assault his teacher … but not old and mature enough to legally consent to subsequent intercourse with the women he sexually assaulted.” This strikes me as a prime example of the contortions that a court has to go through once it has been tasked with adjudicating these types of cases on the basis of the already under-considered and over-loaded sex-offense laws. In order to produce the outcome ‘desired’ by the public and by the legislators who passed the laws, the courts wind up performing some wickedly nonsensical intellectual contortions.

Thus, in this case, the 15 year-old was mature enough to force himself on his teacher, but – as a statutory ‘child’ – was not able to form the intent to perform subsequent rapes. I seem to recall a case from back in the 1990s where a defendant was accused of drugging a victim, who was yet considered competent to carefully and in clear detail testify as to the defendant’s actions subsequent to the victim’s being drugged. How a victim can be simultaneously drugged yet also carefully and accurately recording in memory everything that was done subsequent to – at best – a clouded semi-consciousness … these are the contortions you find in these cases. They not only cast legitimate doubt on the integrity of the specific adjudication, but work to corrupt the entire judicial process and all its participants, as well as to decrease the legitimacy of the law – and Law – itself. None of which bodes well for a society, especially a constitutional democracy such as ours.

It also indicates a certain ‘role-rigidity’. In this type of mania-law – if I may – there is a required ‘scenario’, almost a ‘script’, in which one individual has to be (implicitly) designated to play the ‘good’ role, and another the ‘bad’ role. Thus the great ‘Script’ can be played out smoothly. So in Stalin’s show-trials, the defendant was the designated ‘bad’ guy and therefore had to be considered totally and rigidly ‘evil’, and on that basis the ‘trial’ proceeded to its desired outcome.

In the sex-offense scenario, this is complemented by the accuser, now called the ‘victim’, being the designated ‘good’ player, who therefore has to be considered to be totally and rigidly ‘good’.

Facts and evidence must be forced to conform to those requirements, and any facts or evidence that do not conform to that scheme must be prevented from coming to light or must be explained away, no matter how stunning the contortions required of the court to achieve the desired outcome.

“But to judge from what they have to say, police and prosecutors never conducted an unbiased and thorough investigation, but blindly accepted as true the unsubstantiated allegations … and likely encouraged [the alleged victim] to lie and embellish.”

This brings up the entire matter of the corruption of the law-enforcement and criminal-justice participants mentioned above. Of course, the dynamics of mania-law alone are dangerous enough: if the public, who pays their salaries, is (often with media help) all whipped up against any defendant in this sort of case, then there will be a natural (but not legitimate) tendency by the paid agents of the government police power to please that public. It’s one of the built-in dangers of government police power; and as early as the Roman Empire the question was put: “Quis custodiet ipsos custodes?” – who will guard the guards themselves?

But in the sex-offense law legislators, starting with the Congress itself, introduced a lethal element: if you read the texts of all the original sex-offense enabling laws, you will find towards the end a specific article that absolves police agents from any liability if – while acting in good faith – they violate the rights of anybody accused of a sex-offense. That means that police agents need not fear either criminal or civil penalties or accountability if they go overboard against a suspected sex-offender, so long as they certify to a court – if the need ever arises – that they meant well. You can imagine the effects of this – in the short term or the long term – on police agents. They are in effect being told by the U.S. Congress, and often their State legislators who pass State versions of the Federal legislation, that they will never have to answer for anything they do to a suspected sex-offender. This is more than a wink-and-a-nod; this is a lethal unbridling of the eternal danger of an overzealous or unscrupulous or undisciplined deployment of the police and criminal-justice power. It means that they don’t have to stop for a moment and double-check their facts or their case; they can just go ahead and do what they feel like doing. It’s a Congressionally enacted version of the old Vietnam-era Army saying: Kill’em all and let God sort it out.

And this can’t be good for a constitutional democracy. After all, on top of everything else I’ve mentioned above, it’s also possible that such an absolution-clause might be inserted in the next wave of mania-law that Congress decides to start. And on and on.

“… [I]f they had weighed the facts with a scintilla of rationality, intelligence, skepticism, objectivity, honesty and realism …” Well, when you’re dealing with mania-law, all of that is precisely what you do NOT want to have happen. Mania-law follows the dynamics of a stampede, not a deliberation. It’s designed to be fueled by group emotions, not individual thought. It feeds off those parts of the brain that respond instantly to any emotional stimulus, not to those uniquely human parts of the brain (the prefrontal cortex)that house the human ability to stop that emotional-circuit, step back, and think and assess. And carefully deliberate – as in deliberative democracy.

No, in a stampede you want the herd to move fast and powerfully in the direction you’ve aimed it in; any animal that stops in the middle, or any cowpoke who stands in front of it to try to stop it, is going to wind up as a pile of roadkill.

Now, you might already be asking yourself: if this is a stampede, then who started it? And we’re back to the question the little-people in the old Westerns asked themselves as they saw their ‘spread’ overrun by a herd of spooked cattle. I think there are a few suspects: the radical elements of the feminist lobby insofar as they’re trying to wage ‘war’ on ‘men’; the numerous ‘experts’ who have made a cottage-industry out of mania-law; those among the law enforcement professions who are ‘surfing’ this wave for status and public funds or votes; the ‘victim-lobby’ that is trying to create more and more ‘victims’ whom they can ‘represent’, and perhaps some attorneys who scent profit and fees; the media who are looking to maximize circulation with minimal effort by amplifying these easy good-evil scripts with the always-salacious sexual innuendoes; politicians who are looking for easy praise, easy votes, and to distract voters from far more ominous problems (the wars, the economy); and far too many individual people with unhappy life experiences and unhappy lives who may well be simply looking for somebody to blame as the single and total ‘cause’. [None of this is to deny that there are citizens among us who do inflict unwanted sexual experience on others, nor to deny that in genuine cases some amount of pain is inflicted.] And especially in a constitutional democracy, you can never ignore the eternal reality that government police power is always seeking to enlarge itself, even if it has to hide behind some other, more acceptable, front – and ‘victims’ and especially ‘children’ fit that bill very nicely.

“But ‘believe the child’ is a golden rule of CSA victimologists …” Well, yes, but it’s been true of any mania-law: somebody has to be the designated ‘truth-source’, against whom any skepticism or doubt must be prevented. In Nazi Germany, any of the Propaganda Ministry’s newsreel ‘victims’ – claiming this or that outrage perpetrated by, depending on the moment, the Czechs, the Poles, the Jews – had to be believed totally. If you asked any questions or even furrowed your brow in the movie theatre, you were looking for a show-trial yourself, and a stay at a concentration camp. Or worse.

Of course, no human being or class of human beings, can ever be totally and utterly ‘believed’; untruthfulness is a characteristic of the entire human species, and no court worth its salt can allow itself to ever assume as a matter of reality that the members of a particular class are uniquely and totally ‘truthful’. Which brings us back to the corruption of the precious legal system and its agents.

And anybody who would tell a teacher that children must always be believed shouldn’t expect a lot of homework is going to get turned-in in that class.

A police officer “advised [the accused] that if she wanted to stay out of prison she should create as little stir as possible and they would be able to plea-bargain the felony down to a misdemeanor”. The whole ‘game’ of plea-bargaining, and I mean not just by the accused but by police and prosecutors who want to avoid the trouble of a trial – or the risk of having their weak case exposed in a trial – has been grossly expanded in the sex-offense mania, as it would in any instance of mania-law. Because, of course, once you have ‘pleaded’ and sworn to the accuracy of your plea, then you can’t ever go back and try to right matters without exposing yourself to a charge of perjury (that you falsely swore that your plea was true). It’s a great deal for police and prosecutors if they can get you to do it; and they do have their ways.

It’s probably reasonable to assume that any plea-bargains made in a matter of mania-law are of dubious validity; I’m not saying that everybody who plea-bargained in such cases is innocent, but the tires of any such plea-bargain should be thoroughly kicked by any decent citizen.

Interestingly, Congress is now trying to plaster over that problem in more recent sex-offense legislation by defining a sex-offender as anybody who was convicted – or pleaded guilty to – a sex-offense. In other words, if you pleaded and your plea wasn’t accepted or your case was otherwise concluded without a conviction, you still have to register. Apparently, too many plea-bargains were not standing-up in court, or later information discredited them.

This is not evidence of a Congress that is seriously deliberating, but rather it is evidence of lawmakers who are trying very hard to keep a stampede going. Of course, as History shows, once an episode of mania-law gets going, then after a while far too many important folks get so compromised by supporting it and participating in it, so that they really can’t afford to have the thing die down and their own roles examined in the clear, sober, deliberate light of day. (Think of the Bush era honchos who led the rush to pre-emptive invasion and torture, and now very much do not want any of all that examined closely; it was ‘an emergency’, they want us to believe, and anyway it was in a ‘good’ cause and they ‘meant well’.)

“Public safety is the primary objective of sex-offender supervision. The offender’s potential for re-offense must remain paramount.” Well, this is an essential bit of misinformation without which the mania cannot continue: sex-offenders have a high recidivism rate and so they are at a high-risk of re-offending, and that’s why all this sex-offense law and regulation is totally necessary and justified. But that’s not at all true. First, there is a huge variety of actions that are now legally within the definition of sex-offense; most of those do not demonstrate a high-potential for re-offense, according even to the Department of Justice’s own figures. Second, most of those offenses have nothing to do with ‘children’, whose safety was the reason for the ‘emergency’ in the first place. Third, such mania-law, dealing (in that eerie Communist-Nazi way) with ‘classes’ of people rather than individual human beings, makes no allowance for the very real possibility that an individual can be rehabilitated.

Fourthly – and this reveals, I think, the fundamentally anti-constitutional nature of mania-law and especially sex-offense law – the American vision is firmly based on the fact that anybody is capable of committing a crime and yet, once the ‘debt to society is served’, returns to society.

Otherwise, you wind up – as the Framers might well have sought to avoid – with a situation where you have an increasingly large proportion of your citizenry – those who once were convicted of a crime and served their time – coming back into society as ‘second-class citizens’ or worse. Some countries had systems of ‘internal passports’, which marked you forever to the police authority as an ‘ex criminal’ or – worse – a permanent member of the ‘criminal’ class. It wouldn’t be too long, the Framers must have realized, before your democracy would be undermined by having so large a body of citizens who could not actually function fully in it. (Let it be recalled here that after a couple of decades of mania-law this country now has imprisoned more people than Soviet Russia or Red China; and that if you now add in all those who have once been convicted and served their term in jail or prison, those who are on parole, those who are in some form of these sex-offense registries … this country is demonstrably and undeniably heading backwards, towards the Commies, the French Revolutionary ‘yellow passports’ … none of this is a good thing. Future historians are going to laugh at us.)

“The ‘experts’ are worried that ‘At first glance, rules for sex offenders may seem onerous, extreme or overly cautious’ … But ‘sex offenders are not like other offenders in that factors such as stable employment, financial stability, offender compliance, and a prosocial lifestyle may not necessarily indicate a reduced level or risk.’” Oh, this is a splendid point. First, let it be noted that the self-proclaimed experts have created what the Pentagon-types gleefully refer to as “a self-licking ice cream cone”. In other words, the thing just keeps increasing, as fast as you can re-define whatever you want to come under your authority.

Here we have a problem that has as symptoms both A and not-A. This is an assertion that cannot be falsified by actual research. Is the person leering, unshaven, and constantly speaking in a sexually explicit and inappropriate way – then a sex-offender. Is the person well-dressed, conducting a well-run life, and never speaking or acting inappropriately – then a sex-offender. In this schematic, anybody could wind up as a sex-offender.

Worse, there’s an ominous magical element buried within it, wayyyyy too reminiscent of the mania-hunts against witches, ‘traitors’, ‘enemy agents’, Commies, Reds, Pinkos, and – with great respect for that beleaguered group – what Hitler called “the Eternal Jew”. And vampires, too. They can be the nicest people, they can be upstanding, they can be saints in so many ways – but don’t you be fooled: they are really evil. They can change forms, adopt any form they want to lull you into trusting them, but late at night they are all out in the woods, having commerce with the devil.

There are a number of dangerous things here. If you running an evidence-based legal system, then you risk your system’s integrity with ‘expert opinions’ that cannot be falsified, which is to say that they can’t be judged objectively as accurate or inaccurate. If you are a medical professional trying to provide a useful diagnostic tool, then an alleged disorder whose symptoms can be either this or just-the-opposite-of-this isn’t going to be very useful; worse, the deployment of subjective psychological symptoms – especially if they are so elastic as to be A or not-A – by a government agency against a citizen almost screams out its similarity to totalitarian procedures, past and present.

But on the other hand, once you’ve whipped up a mania, then having such elastic symptoms as A and not-A will help you ensure that the person targeted cannot escape by proving that he doesn’t have the requisite symptoms; because, really, the way the game is actually played is that the person targeted must be and will be found ‘with symptoms’, and that outcome is assured. And if you’ve got a shaky science grounding, but a lot of per-capita funding for everybody you ‘diagnose’, then the wider the symptom-range, the more ‘heads’ you can classify as being in your basket. Imagine, if on the old frontier, when the authorities put a bounty on – say – foxes, and you as the hunter could define ‘fox’ to be anything from a moose to a puppy-dog … you could have cleaned up. Unlike the old frontier days, in the current sex-offense mania there is no actual and definite ‘fox’ upon which everything can be judged. Since ‘sex offender’ is a largely invented term, then the inventers get to play with the definitions as much as they like. And they do.

And all this not-quite-expert-science also feeds the hugely dangerous mistake of thinking that if preventive action is a good thing in environmental law – where you take action even if you don’t yet fully understand how things really work. This same concept transferred into the criminal justice realm creates almost instant havoc. You can’t have the government incarcerating folks even if nobody fully yet understands how – or whether – these folks are dangerously afflicted with some uncontrollable compulsion. The key to the Framer’s vision was precisely that government could NOT deploy its coercive police and criminal justice authority without the most exquisite proof. It’s part of what made and makes what is often called the American Dream.

In this regard, I point out that Obama – echoing George Bush – is ominously incorrect when he says – as he recently did in his speech at the National Archives – that his primary responsibility as President is to keep the American people safe. No – that’s not what his Oath says; he is to keep the Constitution safe (he is to preserve, protect, and defend it). The Oath and the Framers did not assign to the President the power of God to keep people ‘safe’. Without the Constitution, the Framers saw, there would be no American people; there would be a bunch of people, but the ‘America’ part – as far as they were concerned – would be gone.

I also point out that long before 9-11, this mania-law element – keeping people ‘safe’ and keeping ‘children’ safe – was already set up in the national legislative mentality and in public conceptions of what the country is all about and what the government is for. It is not, I think, too much to suggest that the sex-offense mania helped grease the skids for the morally and militarily disastrous wars that were undertaken, with little thought as to consequences, little real knowledge of the problem itself, and – oy! – some very real lying in order to deceive the public: fake figures and facts, invented and forged documents, and a whole bucketful of honorable public officials claiming that everything was on the level and the emergency was indeed real.

“These are the rules that apply ‘specifically for sex offenders’”. I don’t think that anybody yet has made a list of all the rules, regulations, and laws that apply to a person once s/he is classified as a sex-offender. I don’t think that even legislators have gone to the trouble. In the military, if you are designing a new aircraft or ship or vehicle, you have a sort of clearing-house office that keeps track of all the stuff you want to load on that ‘platform’. That way, even though all sorts of folks in separate offices are dreaming up new ideas as to what this thing should be able to do, there is one office where they actually have to judge whether this piece of equipment will actually fit on the platform and whether it will work in conjunction with all the other stuff you’ve installed. That way you don’t wind up with, say, a 10-thousand ton ship being loaded with 30-thousand tons of equipment, some of which can’t work if some other stuff is also switched on.

Of course, when all you want to do is keep voters happy, and since your ‘platforms’ are those evil sex-offenders anyway, then you are relieved of the burden of doing any really serious thinking about this sort of thing. In old St. Joe, they had wagon-masters to make sure that the folks headed across the Great Plains didn’t overload the horses and mules and oxen. But as I say, ‘sex offenders’ conveniently don’t require such concern – they are too ‘evil’ and the ‘emergency’ is too pressing.

“To call all this insane would be an understatement.” Yes, it would be. It is also an ominous indicator of how politics – legislators’ and elected officials’ concern only for votes – has come not only to rule but to undermine the Constitution, especially among those who are indeed sworn to preserve, protect, and defend it.

I think legislators first opened the door and let the vampire in by deciding that nothing was more important than getting themselves re-elected. To do so they had to make voters ‘happy. And as the electorate fractured under the pressure of identity politics into more and more separate sub-groups, and many of those were influenced by the trend toward ‘caring’ about ‘pain’, the legislators saw how they could get themselves off the hook and into the hearts of the voters by claiming to be concerned for ‘pain’ – and so they set themselves up as the go-to folks who would deploy the awesome power of the government to eradicate your pain. So ‘pain’ came to trump any other concerns when it came to making laws: the accuracy of the description of the purported problem and of its solution; the probability of its actually succeeding without creating additional problems, perhaps even more problems than there were to begin with; other consequences – especially negative ones – that might reasonably be expected to happen if this or that law were enacted – any skepticism or deliberation at all, in fact, was tossed away as ‘quaint’.

And I note here again that all this was put in place during the sex-offense mania, whose first phase was finished well before 9-11, when the legislators and elected officials tried to run essentially the same play in foreign policy, substituting ‘armed forces’ for ‘police’ and ‘Iraq’ for ‘sex offenders’. Which has not ended well at all.