Monday, June 22, 2009

WHAT TANGLED TROUBLES WE WEAVE

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 clich├ęs 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.

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