Monday, November 23, 2009


(I Posted this on my other site, but here I’ll make a few more SO-specific comments. My comments here will be in italics.)

I just read the 2006 book “Split Decisions” by Janet Halley, a professor at Harvard Law School.

I try to keep up with feminist thinking, as you can tell from prior Posts. Feminism has been one of the most substantial influences on the way things have gone in the country these past few decades (the Biblical 40 years and heading toward half-a-century, now) and since it mostly receives a very Politically Correct kid-glove treatment in the mainstream media, it seems to me that it needs a much more careful and not so cream-puffy an examination.

The subtitle caught my eye: ‘How and Why to Take a Break from Feminism’. Now that, I thought, is something you don’t see every day. Especially from an established and prestigiously placed feminist and female author.

It’s never been my position that women (not to be equated with feminists, nor vice versa) should be considered nothing more than the docile herd in the deerpark of male sexual conquests, nor do I hold any brief for males who define themselves, their lives, and their ‘success’ in terms of sexual conquests, especially violent ones. Such a habitus does no good for the maturational prospects of any male, as well as harming any female who comes within range.

So I read the book last night and have a few thoughts. This is not a formal review, of course, so I’m only covering the thoughts that strike me. I’ll give page numbers from the text* when I quote a major point.

She quotes a couple of feminist slogans: “I’ll see it when I believe it” and “I’ll see it when I can theorize it” (p3). These seem to refer to the valid enough epistemological insight that if you don’t have a category for something, you may well not even notice it.

It’s not a bad insight. I recall when I first heard an electronic siren (the whoo-whoo, woop-woop) that began to replace the old mechanical sirens (that sounded like smaller versions of the air-raid sirens of World War 2): I didn’t hear it at first, but rather I felt it – I realized after a bit that my eardrums seemed to be vibrating. Focusing on that odd sensation, it was only then that I realized that something was making a noise, and it turned out to be the local fire chief, whose 1960 Pontiac was coming up the street with its red bubble revolving and this strange contraption on the roof apparently making the noise. The chief was having a hard time moving along, since most drivers didn’t seem to realize what his cutting-edge, state of the art, new-fangled siren was (long before the end of the decade, all Americans who watched the TV news came to know the sound very well).

I didn’t have a mental file for that sound, so I actually didn’t hear it – I only felt its effects (on my poor eardrums). But after that I had a file and I heard them for what they were. That’s epistemology for you.

At the same time, though, I hadn’t studied meteorology and knew what thunder was, so some stuff seems to come almost pre-loaded in the human brain, or it’s learned so early – before the capacity for self-awareness is fully operational – that it seems like you’ve known it all along.

But that part about ‘theorizing’ adds an extra layer of complication: it’s one thing to encounter a strange new machine and put together for yourself what the thing does. It’s a different level of life’s Vulcan chess game to interpret for yourself what an idea or a ‘concept’ is and what it’s all about and what it does. And then to assume that your take on that idea or concept (not physically real like the machine) is the full and accurate take to be had about the thing. And then another step to assume that other folks should agree with you. And then another step to assume that if they don’t, then they just don’t get it and need to made to agree with you.

You see where these things can go. As Bilbo tells Frodo there in Bag End, taking a single step outside your door is a momentous and freighted thing: you never can tell where the Road will take you. (Did you think it was just a movie or just a fiction?)

Halley mentions “the thrill of liberation from the self”, which I think she is defining when she goes on to say “the complexly constituted erotic self”. I can’t be comfortable with any implication that the self – the marvelous human self – can be reduced to its (admittedly complex) sexual aspects and potentials. If for no other reason, I think that the Framers imagined a Constitution that would provide a framework for the political affairs of a citizenry who were indeed individuals who were – according to their individual gifts and lights – efficaciously committed to maturing the self that each of them possessed, thus then coming together to deliberate about their public affairs, thus both grounding and holding accountable the government that the Framers were oh-so-carefully limiting and structuring through the actual Constitution.

If no complex, dynamically maturing Citizens, then no way that the Constitutional machine itself could keep going; like a Ferris wheel (not invented, I agree, at the time of the Framers) that required struts to keep it solidly and stably anchored if it were to perform its marvelous movement.

In the Constitutional vision, The People is/are the struts that hold the great machine up and also anchor it against the various momentums of its own movements. Otherwise you get the vivid result so neatly imagined by Steven Spielberg in his 1978 film “1941”, where the Ferris wheel, shot free from its struts, rolls drunkenly along a pier and over the edge into the sea. You might have realized the same sensation yourself in recent years, watching national policy and the Beltway careen ever more drunkenly. There is an edge out there, ahead of Us, somewhere.

In order to be credibly feminist, any approach has to accept the following stipulations, says Halley: a) that there is a distinction between male and female; b) that the female is subordinated to the male; c) that opposition to that subordination is required (p17).

I can see that and I can accept it as an approach to construing American civic life. I would be verrry uncomfortable if the primary unity, the core identity, of Americans as Americans, was subordinated to that, however. If for no other reason than the threat posed to the integrity of The People in the vital role of holding up and holding steady the great machine of the Constitutional arrangement.

Once ‘gender’ (or any other aspect of anyone’s complex identity) functionally replaces ‘American’ as the most important definition, then for the most fundamental political purposes at least, We in a heepa trubble.

And if a theory insists that “subordinated sexuality” is the most important and immediate aspect of fully one-half of the Citizenry’s identity, then not only as individuals but as a Citizenry We are taking a mighty limited view of Ourselves, as human beings and as a People. And there will be consequences, just as surely as deconstructing the struts on a Ferris wheel will yield rather inevitable consequences.

And you can see here how the almost complete reduction of civic matters to one of ‘sex’ starts a trajectory toward the SO-mania and its matrix of laws.

Haley muses that by the early 1980s much feminist theorizing – not all of it congruent and easily meshed – had already been done. But then three things happened: a) AIDS; b) ‘power feminism’s’** determination to focus on domestic violence and sexual violence; c) postmodernism (p28).

About (a) I simply note that a thoroughly ‘liberated’ (which is to say unlimited and un-Shaped) sexual range can have profound, even if unintended consequences – although the effects on the maturity and genuine human development of the individual are, though less obvious, even worse than the disease itself.

About (b) I would note that in that same decade of the 1990s that Halley will call “the decade par excellence of governance feminism”*** (p32) this country adopted a host of police-state tactics, including registries (domestic violence and sex offense), arrest without warrant on the simple say-so of another citizen (domestic violence), special courts (domestic violence), and the widespread government-sponsored certification of an entire group of citizens as incorrigible and recidivist monstrosities (sex offense) that allegedly required not only extensive police monitoring but widespread public notification (sex offense).

I would also note that the Constitutional difficulties with the sex-offense laws have increased exponentially, rather than declined, in the two decades since their inception and now include traditionally conservative elements such as the Cato Institute and the actual State governments and police agencies themselves.

This can hardly be an unintended consequence when so much of feminist thought considers “male sexuality to be a vast social problem” (p27). Or, as Lacanian linguistic theory would put it: all of a sudden, almost one-half of the Citizenry of this nation were, in the blink of an eye, and with the politicos' eager support, 'problematized'. Now that is something you haven't seen too often in human history, and that's probably not just coincidence: governments and nations who embark on such a path aren't going to last too long. Or, as one dead white male has put it, echoing some other dead white male: "a house divided against itself cannot stand".

It is also a recipe for profound public, civic, political damage, when – especially with the connivance of the elected officials of the government – almost one half of the nation’s citizens are conceived of as a vast social problem almost overnight. It reminds one of the sudden Soviet attitude and policy toward the Kulaks; but more relevantly to a democracy, it clearly promises to rend the polity jaggedly and profoundly.

You find yourself asking: what democratic government in its right mind would undertake to support such a program? And so enthusiastically? And, of course, having once fractured The People so profoundly, the limits on overweening government built into the Constitutional ethos are themselves effectively fractured as well. As We have been seeing of late.

The idea of governance feminism, it seems to me, was that feminist Theory had to be taken out of the classroom and chatroom and organized into a political pressure that would insist on Theory-friendly changes to American law and jurisprudence. The Democrats were the first to get on-board, since the whole thing had started out as a matter of ‘liberation’ and ‘empowerment’ and as far back as the late Sixties the Democrats had – in a certain amount of desperation (Vietnam, the unexpectedly rackety turn of the post-1966 black civil rights movement) – realized the voter-demographic potential of ‘women’. And of course by ‘women’ I mean and the feminists meant ‘the advocacy of feminist Theory’ as applied through vigorous political pressure on the elected officials.

About (c) Halley herself describes postmodernism’s “anti-foundational, libertine, irrationalist, anti-moralistic” elements (p29). How could it escape anybody that such a caustic dissolvent would most likely corrode much of the machinery and the struts of the Constitution? Would most likely corrode and even corrupt the maturity and civic competence of the individual Citizens themselves?

Such a ‘deconstruction’ of the fundamental principles and ethos of Constitutional and traditional American social, cultural, and even legal practice cleared the path for the flood of sex-offense laws (although the path was already forged by much of the domestic-violence matrix as well). It’s as if they set a wildfire which destroyed the trees, and thus left the ground open for huge mudslides because there were not trees to inhibit the flow of water when the rains came.

Halley reports herself “happy” that governance feminism made certain problems “visible” and showed “reality” while “making life better, even if marginally – for women” (p32). About the Constitutional ramifications, and the ramifications for many individuals – most of them males - ever more intensely coming to light, Halley has nothing to say, nor is there even an entry for ‘Constitution’ in a comprehensive Index at the back of the book. Which, as I have been saying recently, is one of the gravest problems with the entire feminist enterprise as it has been embraced and fulfilled by government policy, regulation, and – oy – criminal law.

It sort of stuns that there are very sizable and influential groups in this country who see the 1990s (the domestic violence laws and then the sex-offense mania and its laws) as pretty much a ‘success’ as well – even more disturbingly – as a ‘victory’ and a ‘vanquishing’. We are talking about American citizens here. Aya Gruber’s article reviewed in one of my recent Posts speaks to this as well: the feminists deciding for political tactical reasons to cast in their lot with the law-and-order, criminalize-everything interests who were no more ‘conservative’ than the governance feminists were ‘liberal’.

She quotes admiringly Catharine MacKinnon, early theorizer and icon of in-your-face feminism (although Halley quickly notes that MacKinnon has a mellower later phase as well): “My consciousness is true, yours is false, never mind why”(p44). This is quickly followed by a second bon mot: “I know I’m right because it feels right to me, never mind why”.

This sort of assertion became acceptable as ‘evidence’, and worse, as ‘evidence’ that could not be questioned without ‘re-injuring’ the person who made the assertion. In a way too, I think this goes some way toward explaining what Wayne Logan has observed to be the SO mania’s imperviousness to the true and actual facts about such myths as ‘sex offender recidivism’ and ‘stranger-danger’ (you can see a nice list of myths on the Constitutional Fights site by the new group WAR (Women Against the Registry). The legislators who passed these things hold the radical feminist position ‘Never Mind Why’ – which is, I would say, a powerful reason to question the conceptual integrity of the legislators and jurists who continue, even in the face of mounting evidence, to support them.

As the Brits would say: So there it is then. In the proverbial nutshell. Never mind why. How carry on a democratic politics, how conduct any sort of civil or civic discussion at all? Nor is it enough to say that this is from her ‘early’ period and perhaps later disowned, modified, or de-emphasized; this was the type of stuff that overran such conceptual and intellectual defenses as the Beltway in the Reagan era might have mustered.

It’s a sign of precisely the approach – Never Mind Why – that has resulted in the destruction of a politics (or political class) based on deliberation and gravitas, and the erection (as it were) of a politics (and political class) of emotional assertion and thorough-going anti-intellectualism. Let’s not think that Rush Limbaugh is purely a product of the Right; the launch skids were greased for that behemoth by MacKinnon and her brassy and cocky (as it were) sistern (male and female).

The media lapped it up like catnip.

And this goes a great way toward explaining that jaw-dropping media moment in the now infamous Duke Lacrosse gang-rape when, as the prosecutor's case started to cave in by the chunkful, almost one hundred of the faculty stated officially to the media that "facts don't matter". The Theory had convicted these 'males', these 'men', and - as Goebbels was fond of telling the German people, "that's all you need to know".

It was MacKinnon’s insight to “use the law to resist male domination” (p56). Now male domination, except in the most overt cases of rape, is something that – in feminism’s own schematic – you have to believe in and theorize in order to ‘see’. Something so deep – if it is, and subtle – as it apparently is, and long-lived – as it is claimed to be … something that complex is not something against which any rational government deploys the short, sharp, blunt-edged tool of the criminal law. But again … the Beltway did. And is still doing.

Which is not to say that ‘male domination’ doesn’t exist. But granted that it does, in some form, and to some extent rather short of ‘total’, then it was going to take some careful and extensive deliberation to get to work on it. Which is neither the European revolutionary way, nor the impatient attention-challenged American way – and the feminists had drunk deeply from both tainted wells. Enter then the vote-addled Democrats, certain that the female demographic was too frakking big to lose and that the ‘white industrial male’ demographic was most certainly going the way of the dodo, courtesy of the corporate biggies who were paying handsomely into the Beltway’s PACs for the privilege of ‘outsourcing’ as fast as they could line up cheap labor in the paddies, fields, and backstreets of the Third World. Those were the days.

In short, MacKinnon’s plan – espoused by the vote-addled politicos – was to “use law to undo gender” (p56). Once again, it may seem strange that a democratic and Constitutionally-limited government would seek to deploy its carefully constrained authority in order to undo with Law what millennia of human history, tradition, and experience indicated might be a substantial human reality, but as it worked its way through the Looking-Glass the Beltway lost track of just what ‘strange’ might be. Which was the plan; it was Incorrect to be judgmental and categorize things, especially in an insensitive and negative way. Those were the days.

Cultural feminism holds, in Halley’s taxonomy, that “women have a distinct consciousness and/or culture”, although then this consciousness might derive either from their biological situation or from “their historical oppression by men” (p58). Which leaves a lot of blank space to be filled in on the map.

Halley uses an interesting and useful example: imagine that women make good mothers. An ‘essentialist’ analysis would say that women are naturally maternal, while a ‘social constructivist’ analysis would say that men made women do all the mothering so they just sort of got good at it. When last I got a memo on the subject, you could lose your job or wind up in front of some sort of adjudication if you proposed that the former might well be the case (although one never gets all the memos in an ongoing revolution that bids fair to become permanent … sort of like wars that are forecast to last generations – although I don’t think that anybody planned the Hundred Years War with that particular timeframe in mind).

As I’ve said before, from everything known about Evolution, its Modus Operandi – verrry well established – is to provide deeply for the most important purposes. So, in something as primary as the reproductive survival of the species, and in a species that has the largest relative brain of all the animal kingdom and takes the longest time to mature to full brain potency, then the big E would probably want to ensure steady and reliable care. It would ensure that by preparing the child-bearer as deeply and complexly as possible. And perhaps the lumpish Fred Flintstones of the earliest hominid communities realized exactly what Wilma seemed to be able to do with kids; perhaps they weren’t such cartoon characters as they have been made out to be.

To imagine Evolution looking at both the male and the female adults of the species and merely dismissively waving its hand in a Yeah, Whatevvvvverrrrrr sorta way … I don’t think so. Evolution, unlike Americans nowadays, doesn’t just wave its hand dismissively and leave it up to Whaaateverrrr. It takes steps – verrrry specific steps. I’m jus’ sayin’.

Halley quotes Robin West, author if 1997’s “Caring for Justice” and, Halley opines, “one of the legal academy’s most articulate and theoretically astute cultural feminists”: “There is such a thing as patriarchy - ‘the social system when men’s interests trump women’s whenever they conflict’ – … [and] no society is utterly free of it, even this one ” (p60).

Which says a lot less than it looks like it’s saying. No society is utterly free of anything, and surely the contention that America is one of the most horribly patriarchal of them all has become gospel (you should pardon the expression) among American elites and among all those kiddies whose parents have recently shelled out two-hundred and fifty large for a first-rate education.

But according to this theory, feminism is also “an irrepressible human reality” – which kind of jars since the last memo I saw was to the effect that the afore-mentioned patriarchy had repressed it all since just a few minutes after the beginning of recorded human history. So it leaves you wondering how an irrepressible human reality was so repressible for so long and more or less so thoroughly. I’m jus’ sayin’. Is it at all possible that it was so repressible from the get-go since even the most benighted cave-folk got the impression that to the best of their observation that’s the way things worked best for the species?

Which is not to say that therefore the world should go back to the cave (although you could say that most of it has never left Plato’s Cave, but let me not digress). But it is to say that if something has been chugging along since about the beginning of human history then you might not want to just haul off and rip it out by the roots on the basis of the most trendy theories, no matter how forcefully asserted. Some serious deliberative thought might be in order. It’s not as if it were as clear as, say, the blatant injustice of the old Jim Crow laws.

Further, for MacKinnon – who was riding pretty high in elite circles during the 1980s – male domination was not a “moral” issue (p61). I take this to mean that it was not a matter of individual males acting illegally or immorally; rather, the thing should be seen as a deep-seated gender-wide issue that required the hammer and sickle of the Law, as hefty and robust as the Beltway could wield them. The hammer and sickle, that is to say, to be struck at the roots of the male sex as a class – which has more than a vaguely Commie ring to it. (Funny, that as the Soviets and their ideas and their political system were lurching toward utter implosion and dissolution ‘over there’ their illuminations were being taken up as the new gospel ‘over here’ – funny, funny, funny).

MacKinnon is here engaging in the old Soviet gambit of raising up a ‘class enemy’ against whom the State, in its righteous defense of ‘the masses’ may deploy whatever hostile actions it wishes to. The Kulaks – successful farmers, though no doubt some individuals engaged in some sharp practice against the peasants – were not considered individually as criminals, but rather as a criminal class and an ‘enemy of the people’.

Of course there are radical branches of feminist Theory that do indeed see ‘men’ and ‘male sexuality’ and ‘male dominance’ as conceptually wrong and oppressive, such that any and every male and all males together can always be assumed to be ‘enemies’ of women’s interests and freedom. They hew even more closely to the Soviet playbook.

In which case the domestic-violence and sex-offense laws are the righteous war of the ‘people’ and their government against the ‘class’ (in this case sex or gender) enemy’. And as always, such revolutionary ideology has never been susceptible to any sort of proof to the contrary or even any evidence. It is the Theory itself that has convicted the ‘class enemy’ and facts would merely get in the way. So from a Soviet point of view, Never Mind Why is not only acceptable but even required. And to allow yourself to be distracted by facts makes you yourself an enemy of the revolution.

Women, it was said – and I am not in complete disagreement with this – were not simply discriminated against but were “subordinated” and “undervalued” (p62).

Personally, I think – and this is hardly original, I agree – that one of the greatest candidates for the term ‘original sinfulness’ is the perennial human tendency to undervalue the human species in all its powerful and marvelous potential. This is truly a profound and abiding human tragedy, and the seedbed of catastrophes great and small; nor is each small or individual instance of it any less significant merely because of its ‘small’, ‘individual’ site. A human being, truly, is a terrible thing to waste. And, I believe, the entire species pays for such losses.

There are, it is said – and no doubt this was impressed upon the less-then-profound politicos – two diametric sexes, and they are set against each other, and that is absolutely the fundamental human (and political) reality; there are “gendered harms” (p63) that women suffer and men, precisely, do not. And it is the government’s responsibility – the politicos were told in season and out of season – to fix that.

About harms males may suffer for being male, and the trials and tribulations of being a ‘man’ in this world, nothing is said. Which is in a way as it should be – feminism is an advocacy after all, and you expect an advocacy to speak highly and vividly about its clients’ concerns. But all of this has been presented – over the past few decades – not as an advocacy position looking for some purchase on the political ground, but rather as the hugest and most awful discovery ever to be made in the history of the species. Intellectual hubris or P.T. Barnum exaggeration or a shrewd Goebbelsian shot in the air that will spark a public stampede (and a stampede among the halls of the government) … you can take your pick as to the relative proportions of each in the recipe.

And of course, following the Soviet playbook, this is an advocacy that needs ‘an enemy’ in order to establish itself and mobilize its supporters. The Movement itself, like the Red Revolution (at least until Stalin got rid of all the dissenting revolutionaries who disagreed with his interpretation of the revolution) needed ‘enemies’ in order to distract people from the incoherence and incompatibility of its many assertions and claims.

West is continued: “Virtuous sexuality is feminine sexuality and it has a decidedly infantile, lesbian, and caring shape” (p64). This foregoing is asserted proudly. The theory, it seems, is that young girls develop a deep love for older women in their lives (their mothers, one imagines, first of all) but are too soon ripped away from that caring and nurturing experience in order to define themselves by and conform themselves to their roles in the domination-subordination script imposed by patriarchy as an established concept and by sex-crazed, thoughtlessly assertive and violently aggressive ‘men’.

And once again, one wonders: sure, it’s a theory and deserves a careful look, but would any democratic government in its right mind simply throw the weight of its authority, prestige, and the consensus of its very legitimacy behind such a vision? No wonder that even after Bush the Egregious frakked up the economy and started two losing wars, the Democrats were just able to squeak by in the last presidential election.

There are a lot of people in the country, I think, who are not happy with the sex-offense situation as it is evolving, just as there were many who probably voted Republican not because they are imperialist running-dogs and jingo-crazed super-patriots but simply because they are deeply uneasy with where the Democrats are taking things.

Halley will quote the feminist writer Adrienne Rich who posits “a redemptive, feminist, intrinsically lesbian sexuality”, even “infinitely redemptive” (p64). And another feminist writer, Ellen Bass, who posits the “redeemed sexuality of the original desire” (meaning the original attraction of the young girl to the older female). Is it just me or am I right in thinking that if this statement were about males, then such an assertion would bring you dangerously close to the NAMBLA position?

And I’m still not in agreement that ‘sex’ and the having of it somehow constitutes the essence of being human and the epitome of human achievement, self-awareness and self-definition. Where would We be if Homer and Dante and Michelangelo and Theresa of Avila and Elizabeth I**** followed such a philosophy of self and of the human? Of course there was Catherine the Great (the empress, not the feminist philosopher) … but her mark on history was not as great as the possibilities of her position might have provided, and there was that stuff about the Guardsmen … and something about a horse.

Sex in and of itself doesn’t and can’t ‘redeem’ a life. It has its occasional highs and its pleasures, of course, but except in a kid's idea of the world you can’t build and conduct a life – and a self – on such a narrow and limited basis.

But now Halley gets to some material that I think contains crucial information, relevant to the situation the country faces today.

In 1982 the psychologist Carol Gilligan wrote the book “In a Different Voice”. She asserted that the moral development of females and males differed. The boys developed an “ethic of justice, predicated on the understanding of human beings as individuated and separate, and on the rule of logic and the rule of law”.

The girls, however, “saw that the world is not made up of separated, self-seeking individuals but rather of interrelations, connections webbing everyone together in communities of concern”; further, that “they made moral decisions not through abstract reasoning from rules but by balancing the infinitesimal and acute needs of everybody concerned” (p69). (Italics mine) This, Gilligan said, is an ‘ethic of caring’.

The boys’ “ethic of justice” was contrasted to the girls’ “ethic of caring”.

THIS, as the kids would say, is HUGE.

If you think you can hear oblique echoes of the Sotomayor confirmation hearings, I think what you have here is the American start of it all.

But more fundamentally, I think what you have here is the dark beating heart of the intensifying Constitutional corrosion that has been going on for decades, for which the Bush Era skullduggery is not a cause or source, but merely a symptom and a result.

If you look at what the boys are doing, you will see the essential philosophy underlying the Constitutional ethos: individual persons, responsible for themselves and their development, responsible as well for their actions, but they will be judged – if such be required – according to the logic of cause and effect and according to the rules of the applicable laws. The government, of course, is as contained in its powers and the responsible use of them as the individual citizens are contained by their responsibilities under the laws.

The girls – in Gilligan’s schematic – entertain a vision that is hell and gone from that. It’s a more maternal (!) approach: whichever baby is crying is to be helped along and soothed, regardless of whether there is a ‘reason’ for it to be crying. It’s a fine approach for dealing with still undeveloped infants still helplessly subject to the waves of their passions and emotions’ they can’t be expected to use their ‘reason’ to self-modulate their emotions.

But a nation is comprised of adults who are responsible. Or should be. Or perhaps must be.

The ‘ethic of caring’ works perfectly well for infants. But the ‘ethic of justice’ is what works for adults. If you’re going to have a Constitutionally envisioned limited government, grounded by a Constitutionally envisioned mature Citizenry.

Any government that is going to appoint itself as the Fixer of All Pain is going to be taking on the role of God and the angels – and will demand that much authority (it can never attain that much wisdom). Bill Clinton’s nifty soundbite – I feel your pain – stems ultimately from this schematic of Gilligan’s, I think.

I think it’s clear here how the ‘ethic of caring’ – when raised to the level of national policy on the highest and most profound levels – is a perfect vehicle to justify the sex-offense laws: the government must ‘protect’ and the best way to do that is to ‘prevent’ – and, bingo, the sex-offense Registration and Notification schemes and the civil-commitment schemes and the residency-restriction schemes and all the rest.

And I hope I don’t have to say it too loudly: I am not ‘un-caring’ and I think that ‘care’ is a profoundly valuable and indeed a vital element in the quality of personal and societal life. Indeed, for anyone who does find him/herself engaging in sex-offenses, this may be an excellent starting point for self-repair: to inflict a genuine sex-offense is clear indication that the offender doesn’t care enough about him/herself as a human being, nor about the victim as a human being.

It seems to me that Bush the Egregious merely took advantage of the Constitutional deformities already enshrined by the Left’s reputedly liberal emotionalism, applied it to the emotional situation created by 9-11, and the rest is history – although a history still bursting even now.

And his puppet Attorney General, Gonzales, surely was not intelligent enough or observant enough to declare the Constitution “quaint”. I would say that the Constitution was rendered unworkable the moment a quarter century or so ago when Gilligan’s ‘ethics of care’ began to gain traction inside the Beltway and in the law schools (whence prosecutors, US Attorneys, politicians, and judges of all ranks have now sprung).

Halley doesn’t go into the downsides. She does mention the “dark side” of feminism, and that there is – and of necessity – “blood on its hands” from where things had to be done (though she doesn’t go so far as to repeat the old Communist saw about the eggs that have to be broken to make an omlette). More on that in a moment.

Surely one of the dark sides is this creation of an ‘enemy’ and then the waging of ‘war’ upon that enemy, which is what we see in the sex-offense mania and its matrix of laws. ‘Men’ were the eggs that had to be broken to make the omlette of the feminist ‘revolution’ – and that is wrong on soooo many levels.

When she gets to the gist of her main point, fully expounding it towards the end of the book, she does remarkable work. Without rancor, supportively and yet firmly, she suggests that it’s time to Take A Break From Feminism (pp.341-ff).

And then she unpacks that.

Feminists need to stop repeating the “subordination mantra”, that women are subordinated (thus oppressed) by men. She calls it the “politics of injury” (I would call it ‘victimism’, but I can see where she’s trying not to be too inflammatory and, following the best advice of Gilbert and Sullivan, seeks to “gild the philosophic pill”.) She bravely adverts, nonetheless, to the follow-up phase in the Politics of Injury: questioning an assertion made by one of the injured is tantamount to re-injuring her.

Feminists have to stop seeing the “brain drain as a good thing”. Here she refers to something you don’t often see discussed in the media: that women who in their reflections and thoughts and observations come up with conclusions unacceptable to feminist orthodoxy are hounded or frozen out of the feminist ranks. She herself shares the feeling that when she wondered about the damage that available prostitutes might do to men she immediately felt that “it seems somehow not-feminist to suggest it”.

Feminists need to resist bad faith. The wide and frequent deployment of the Injury Triad (female injury plus female innocence plus male immunity) has to be acknowledged for what it does. It does not eliminate consequences and costs simply by removing those costs and consequences from women; it merely shifts those consequences and costs to others. And feminists who claim that they can exercise broad and deep political power without causing injury to – she dares to say it – men must stop such posturing, stop operating in such bad faith.

Feminists need to minimize moral perfectionism and their magical-realism style of thinking. They cannot claim that women, being oppressed and victims, can never themselves oppress and victimize others once they exercise power. Feminism, especially in the exercise of long-sought power, cannot hold itself as “morally immaculate” (p344).

Feminists need to deconstitute women’s suffering. Might it not harm a woman – she suggests – to insist that if she has been raped she is now so traumatized that she may well never recover? Is it always ‘blaming the victim’ to inquire whether in a particular case any activity of the female might have been contributory? Does it do women any good to dogmatically remove them from any responsibility for their experiences at all? Is the standard and required feminist “rape discourse” (subject-verb-object, man-raped-woman) sufficient to all situations and does it respect the complexity and integrity of human experience? Is it possible that in affirming and identifying with female “injury” feminism is actually intensifying it?

These are splendid questions. I’d have to say that they should have been asked long ago, but that is not the particular fault of Halley, whose book – with full and due regard for feminism’s acute sensibilities – asks questions that must be considered.

In fact, this whole concept of Theory needs to be looked at. It’s all very well for a bunch of humanities and literature types to think up ways they can play with a text like kids’ play-clay, but an actual living nation is not a ‘text’, nor is a society, and while the Constitution is a document, it’s a hell of a lot more than simply another piece of fiction to be parsed and cut-pasted.

In that regard, I recall what Frederick Crews said; he was speaking about Freudian theories, but it could apply to all this material here as well: “Freudian concepts retain some currency in popular lore, the arts, and the academic humanities, three arenas in which flawed but once modish ideas, secure from the menace of rigorous testing, can be kept indefinitely in play”.*****

Many of the foundational assumptions and assertions of feminist theory – in all the dense and indeed jungle-like tangle of its diversity – are very much still “in play”. For that matter, the entire country, the entire nation, the entire society, the entire culture, the entire ethos of Western civilization is very much a playing board, for games political as well as Theoretical. Which does not, for all its brash and frizzy excitements, bespeak a becoming gravitas about just what an amazing but fragile construction has been bequeathed to Us. We may well improve upon it; but We are fools to ‘deconstruct’ it.

Still and all, Professor Halley has done a great and worthwhile service here. And I don’t know if anybody outside the charmed circle of feminist true-believers could do it with any chance of being heard. I am reminded of the observation that “only Nixon could go to China”, although I mean thereby no disrespect to Professor Halley.

I’d conclude this, however, by connecting another dot from beyond her book. An article by Joshua Kurlantzick, examining the curious and surprising persistence of the Communist Party in China despite the formation of a respectably endowed urban middle class, comes to the conclusion that – contrary to the conventional wisdom that the emergence of a middle class facilitates a move toward democracy – the Chinese urban middle classes are actually rather supportive of authoritarian government … because it seems a more reliable protector of their gains.

It seems to me that this is somewhat of the same problem that Obama is facing here, and one of the main reasons that he has been unable to fulfill so many of his campaign promises and – I believe – his own goals: too many who have gained much from the Identity Politics regime of the past forty years do not want to see too much change. And in that, for all practical purposes, such groups are natural (if silent) allies of the wealthy who also do not want to see what they have placed at risk of redistribution.

How Obama can overcome resistance from both sides – as it were – of the current political spectrum, from both remaining sources of the Beltway’s power (Identity Politics and corporate PAC contributions), is a very sobering question indeed.

In that sense, finally, I think Obama is in the same position as the Constitutional ethos itself: it’s under fire from both sides. The Identity Politics advocacies want to see it ‘reformed’ in order to remove its obstacles to their politically useful ‘politics and ethics of caring’ while the law-and-order Rightists want to see it diluted so as to ensure more ‘order’ than the traditional American vision allows the government police power to impose.

And surely, if the feminist visions of slavering male sex-addicts and the wealthy’s visions of a demanding and enraged and suddenly impoverished citizenry are allowed to run free, then they will both converge in an engorged police state, the better to regulate and control their respective bugbears and nightmares.

And if the Sixties insisted that there were no limits and no bounds and no Shapes to which any individual must conform – either in order to accept an external obligation or to fulfill an interior nature – then after several generations, such an unripened and immature citizenry must be both incapable of governing its government and in need of that government’s police power in order to enforce whatever civil order remains possible.

These are dark trajectories indeed. And the sex-offense mania is one of the darkest trajectories that We have seen … to date. And the government, hiding behind its role as righteous avenger of the ‘victims’ of the ‘enemies’, continues to try to expand itself, using any pretext that it thinks will get by the courts. And of course, a government – and legislators – whose primary justification for laws is ‘we feel it’s a good idea to have this law – Never Mind Why’ … well, that’s not any government that corresponds to the Constitutional vision.

Halley’s suggestions are certainly an excellent place to begin a desperately needed change of course.


*My copy of the book is the Princeton University Press edition of 2006.

**With no disrespect to Halley, it’s like reviewing old Soviet history to read her enlightening list of assorted feminisms: power feminism, governance feminism, cultural feminism, liberal feminism, difference feminism, postcolonial feminism, sex-positive feminism, structuralist feminism, essentialist feminism, social constructivist feminism, convergentist hybrid feminism, divergentist hybrid feminism … one can’t help but think of Mensheviks, Bolsheviks, Old Bolsheviks, Trotskyites, Zinovievists, Narodniks, legal Marxists, primitive accumulationists, polycentrics, Titoists, permanent revolutionists, right deviationists, left deviationists, and a ghostly host of others including, of course, that greatest creator of ghosts, Stalinism. I suppose you could, if you were so inclined, describe this all this as “intense, theoretical productivity”.

***Who may be said to have abandoned the outsider-revolutionary approach, and instead concentrated on changing things from within the government and the major institutions (law schools, the judiciary, universities, and such).

****At one point in this book, Halley refers to Elizabeth – the queen who ruled England in the 1600s … or words to that effect. My immediate thought was that she could simply have said “Elizabeth I” or “Elizabeth I of England” but then it occurred to me that at this point in elite academic history, a substantial amount of her readers (even the Harvard ones) might not be able to place “Elizabeth I” either as to timeframe or place. I am not referring to the Ivy frosh who were recently discovered to reach the hallowed halls secure in the knowledge that Lincoln beat Hitler or the Kaiser and Kennedy followed Roosevelt. But then, they were all men, and dead white men at that.

*****Crews, Frederick. “Follies of the Wise”: Shoemaker-Hoard, Emeryville, CA; 2006. Page 16.

Saturday, November 21, 2009


I want offer a few thoughts on this US Supreme Court case, especially on the Amicus Curiae Brief submitted by the Cato Institute in favor of the Respondent-Defendant, one Graydon Earl Comstock, Jr. (and others not named).

The text of the Brief is here. It’s only 42 pages long and is actually very readable. As always, I urge readers to get used to reading Court filings. Many times the only opportunity to read such documents among the SO community is when a case is pending involving yourself or somebody you know – and at that point it’s all kind of intimidating. But it’s good to get used to reading them when you’re not under such pressure, just to get a sense of how lawyers and courts think and how they approach a case. When I use page numbers to refer to the Brief, they will be the page numbers as they appear on the pdf that the hyperlink in this paragraph will take you to.

This case involves the federal government’s authority under Title 18 of the US Code, Section 4248, to civilly commit a “sexually dangerous person” ) who has finished a sentence in the custody of the Bureau of Prisons “or against whom all criminal charges have been dismissed solely for reasons relating to the mental condition of the person”. It should come as no surprise to know that this initiative was part of the Adam Walsh Act.

The way it works is that if a the Attorney General can “certify” that such a person is a “sexually dangerous person” (SDP), send that Notice to the court that tried him, and require thereby a hearing to determine if the person is indeed an SDP, and his release may be delayed until the hearing is held and a decision is reached.

The court may also order a “psychiatric or psychological examination” of the person and a report to be filed. If the court finds “by clear and convincing evidence” that the person is indeed an SDP, then the court can “release the person to the custody of the Attorney General”, who can then approach the State that originally tried him or the State of the person’s residence and get the State to civilly confine him (for “treatment” of course) or, if neither State can or will, then the Attorney General can place the person in “a suitable facility” until such time as the person is declared no longer “sexually dangerous”.

So far so familiar to anybody familiar with the SO mania.

And since there is no specfic 'sex offense' mental illness, there is no diagnosis and no treatment - so you can imagine that a civil commitment for the ostensibly benevolent purposes of 'rehabilitation' might last quite a long time. In the alternative, a person might be clasified as having a 'personality disorder'; a sizable chunk of the entire national population has one sort or another of such a disorder, and since there is a also a category for a personality disorder 'not otherwise specified' - meaning one that conforms to no diagnostic markers known to clinical professionals - then just about anybody can be 'diagnosed' with one by any mental health evaluator who 'sees' such a disorder and writes that opinion up for a court hearing.

As we have seen in many SO laws, but also non-SO laws such as the recent Matthew Shepard Act*, Congress and the Feds are dealing themselves into matters properly the business of the States.

In the Adam Walsh Act (AWA) we saw the Feds use the pretext of Congress’s power under the Commerce Clause to regulate interstate commerce.

In this case, however, the government is trying to establish its power to do this sort of thing under the Necessary and Proper Clause (Article 1, Section 8, Clause 18) of the Constitution, which grants Congress the power to pass all laws “necessary and proper” to carry out those specific enumerated powers assigned to it in the Constitution.

So we come to this Brief. It is from the Cato Institute, a well-known, sorta conservative think-tank in Washington that you wouldn’t at first think would be running around filing Amicus Briefs on behalf of SOs. But what’s going on here is that the government through Congress has now started expanding its alleged authority to deal with SOs so widely that even a conservative think-tank with impeccable credentials is getting worried by the trend.

The Necessary and Proper Clause (N&PC) has always been “tethered to a specific enumerated power”, the Brief points out (p11). If the government is going to use the N&PC as justification and authority, then the government has to identify just what enumerated power within the Constitution its particular plan or law it claims the necessary and proper justification to carry out.

The Government, the Brief politely notes, has identified no such enumerated power by which civil commitment of SDPs is justified.

After all, if the N&PC is not tethered to some particular power that the Constitution has already assigned to Congress, then Congress can make any law it wants about anything, simply on the basis that Congress feels that the law is “necessary and proper’ for Congress to be passing. And that’s the end of any limits on the power of Congress at all. Congress could do whatever it wanted to do and nobody could say No to it because Congress felt that whatever it was doing was ‘necessary and proper’. And do you want Congress as you know it to have that kind of power?

Certainly the Framers didn’t.

That’s why the N&PC is not an independent source of Congressional authority, any more than the Commerce Clause is. Whatever Congress is doing when it uses such a Clause as justification has to be shown to stem directly from one of its Constitutionally enumerated powers.

The government does take a stab at justifying the law: Congress has the right to set up a penal system (p11). Since Congress has the power to pass some criminal laws, says the government, then it must have the right to set up a penal system as well.

But of course that implies that the civil commitment is actually a ‘penalty’, part of the ‘penal system’s power’ – and the whole basic claim about the sex-offense laws is that they are precisely NOT part of any penal system but rather are simply ‘administrative’, ‘regulatory’ and ‘civil’ regulations. Such are the problems a government is going to have when it’s trying to keep this whole SO matrix going – it winds up contradicting itself and surely in this case threatening to undermine the whole matrix altogether.**

For that matter, says the Brief, Congress has no specific enumerated power in the Constitution to be setting up penal systems; criminal law and certainly incarceration are primarily State issues, under the Xth Amendment (which leaves to the States all powers not specifically enumerated for Congress). “The civil commitment of prisoners at the conclusion of their terms has nothing to do with the creation or maintenance of the penal system itself (let alone anything to do with one of Congress’ enumerated powers)”, as the Brief puts it nicely.

But then the Brief stops being quite so vaguely polite. “The true aim of the Act is not to
support the operation of the prison system at all, but to protect the public at large by continuing the confinement of potentially dangerous persons after the conclusion of their sentences. However well intentioned Congress may have been, it had no power to legislate for the purpose of protecting the public from dangerous persons.” (p12).

Now we get to the heart of the matter. We are getting here to the point where it becomes clear just what a Constitutionally impossible (and Constitutionally dangerous) situation is created when the government gets into the ‘protection and prevention’ business.

There is no such specific enumerated power assigned to Congress in the Constitution. And who can be surprised? If the Framers had just waged the Revolutionary War in order to escape from the tyrannical treatment meted out by a royal government that accepted no limits on its authority, were they likely to propose giving their new replacement government the same type of authority?

Heck, it was hard enough for them to allow the States to conduct criminal law, and even then they placed significant protections into the Constitution to prevent the State government authority from lording it over the citizens.

Thus the N&PC limits the federal government (pp16-23). Indeed, Madison said as much on the floor of Congress in 1791: "Whatever meaning this clause may have, none can be admitted, that would give unlimited discretion to Congress". (p23)

I say again what my previous Post worked through at greater length when reflecting on Aya Gruber’s article: a government that is going to ‘protect’ its citizens from any and all sorts of dangerous persons was going to need the authority (and wisdom) of God. And any government with that much power was going to be at great risk of becoming a police-state and reducing its citizenry to a helpless, fearful herd.

So this entire trajectory toward the government – especially the Federal government – ‘protecting’ folks is dangerous and Constitutionally impossible (without gutting the Constitution). But of course, protecting folks has been the great game of the government domestically for decades now; the image of the ‘victim’ has provided the great cover whereby the government could churn out Soviet and Maoist levels of imprisonment, and increasing levels of surveillance and intrusiveness.

But it’s also strange that at a time when Congress has clearly been failing in its most important Constitutional duties (war-making decisions, economic and currency matters) it has simultaneously been seeking to expand its authority (and that of the police power) in ways never intended by the Constitution.

And if Congress is going to now consider itself responsible for broad, profoundly deep, and rapid cultural change and indeed for changing the deepest attitudes and beliefs of the citizenry, and regulate sex as well, then its very objectives will require a level of intrusiveness – precisely unlimited – that cannot but alter the very basis as well as the balance of the Constitutional ethos.

I read in some other commentary the opinion that the Supreme Court – in the commentator’s view – would not and could not approve the government’s plan on the basis of the N&PC, but would probably come up with some other angle to justify approving it.

Perhaps so, alas. But I think this clearly demonstrates that the law-and-order approach as it has evolved over the past few decades can no longer with any accuracy be labeled a ‘conservative’ position. Nor can the pressure for further government intrusiveness be in any sense be labeled ‘liberal’.

The great challenge facing the country now is that both so-called conservative and so-called liberal policies require the expansion of the police power and the expansion of Congressional and federal authority far beyond what the balanced mechanism of the Constitutional machinery and vision permit. Neither of the major political approaches in this country are really pro-Constitution.

And this has been going on for so long that the Bush-era skullduggery can legitimately be seen not as the cause of this dangerous state of affairs, but rather as the fruit of the prior decades’ worth of anti-Constitutional deconstruction by both Parties and their assorted pressure-groups and ‘bases’.

And the matrix of SO laws (themselves the further enhancement of the Domestic Violence initiatives and the entire victimist approach) place the SO community on the very front lines of resistance and make the SO community one of the most active resources for whatever correction and repair that it is still possible to be made.

So there is much at stake here. And much to do.


*See my Post here.

**Because if these laws are declared “punitive” (and more courts are starting to come to that conclusion) then they can’t be made retroactive. And, for that matter, such judicial determinations may also implicate the hugely suspicious inclusion of the military justice system as a court system whose convictions have the type of Constitutional integrity that justify making military court convictions for sex-offenses eligible for inclusion on the sex-offender registries. Things get complicated when you start trying to do a lot of stuff without really thinking anything through (and can you say Iraq War?).


The text of 18 US Code 4248 is here.

Saturday, November 14, 2009


Back in 2006 in ‘The New Republic’ the noted legal commentator Cass Sunstein reviewed several books about terrorism. *

As often happens in even well-intentioned campaigns nowadays, the dangers of this or that can be greatly exaggerated in comparison to the actual risk that they pose. In the same year that 3,000 Americans died in the 9-11 bombings, 40,000 died in motor vehicle accidents, and an American was 15 times more likely to die in an MVA than in a terrorist attack, and 7 times more likely to die of alcohol-related problems. In fact, he calculated, “if an attack of the magnitude of September 11 occurred every three months for the next five years … the probability of being killed in such an attack would remain tiny: 0.02.”

And yet the ‘fears’ of Americans do not correspond to the statistical realities. More Americans are greatly worried about their loved ones dying in a terrorist attack than are fearful of a loved one’s death by MVA or alcohol.

One of the reviewed books identified a ‘complex’ of government bureaucracies, politicians, and the media as the source of much of the fear-mongering; each of them benefits greatly from public fear. He fails to go beyond the usual suspects to include those elements of allegedly ‘liberal’ or ‘progressive’ origin that have also become adept at fear-mongering.

Advocates often have to emphasize the ‘danger’ posed by their ‘enemies’ in order to weld together disparate sub-demographics of their adherents. And there is always that ancient tactic that the Russians called prebedniatsia, the purposeful exaggeration of your claim or your plight in order to gain the attention of a bored official or bureaucrat (apparatchik). In this country, you want to make your own case stand out in order to attract the attention of the politicians and bureaucrats and media; but you want to instill fear in the citizenry so that they will sympathize with you – support you even – in the hopes that supporting you will reduce their ‘danger’.

It would be wiser, Sunstein notes, simply to sit down and do some quick figuring: the question isn’t whether you are ‘safe’ or ‘unsafe’, but rather: what is the probability of X happening to me or my loved ones? This, Sunstein and the various authors realize, would add a major reality check to much of the fear-induced stampeding that has befogged and besplattered the national landscape in the past few decades. After all, if everyone yields to anxious rumination about whether they are ‘safe’ or not, who would be able to get out of bed in the morning and face the day (without the assistance of mood-enhances, quarts of energy drinks, or what-have-you)?

This, of course, is precisely not the approach taken by assorted advocacies and the government: the false question – am I safe? – taps into abiding fears, and not simply specific fears but also the deep and dark pool of anxiety that is ‘down there’ in every human being, just waiting to be given a vent up to the surface of consciousness.

Sunstein examines political philosopher Robert Goodin’s core description of ‘terrorists’: they “act with the intention of frightening people for their own political purposes”. Whether they actually shed blood or how much or how little they shed is not the core element in their definition; rather, it is that they are deliberately trying to frighten folks in order to achieve their political purposes.

That actually sounds like a pretty solid bit of description. Until it dawns on you that it fits a rather significant chunk of Beltway folk such as advocates and politicians (not always the media, who more often do it for sales, not purely for ‘political purposes’).

But Sunstein can’t completely agree, and rightly so. Surely there is a difference between persons looking to instill fear and gain political compliance by bombs and bloodshed, and persons seeking to gain their political purposes by non-bloody (not to say non-violent) means.

I make that little distinction between non-bloody and non-violent since you can do quite a bit of damage to an individual, a group, a society, a culture, or a nation without necessarily shedding any blood at all (yes, I’m thinking of the SO mania, among other things).

Nor does Goodin make such a vivid but wayyyy too –simplified and wayyyy too-easy equation between terrorists and politicos. Rather, he says, “it follows that public officials, frightening people for their own ends, are to that extent terrorists, even if the underlying threat is real, and even if they are not responsible for creating the threat in the first place”.

Biff! Pow! And this is in the context of the 9-11 terrorism that Goodin is speaking: there really are violent terrorists out there, the Beltway didn’t create them, but the Beltway is fomenting fear in order to achieve its own political ends and its own political success and continuance.

But then: what if the Beltway did create the threat, and what if the Beltway continues to sustain the threat for its own political ends? Now, as you may have guessed, we are getting much closer to the SO mania with the monstrous, incorrigible, stranger sex-offender (duly Certified by official Finding) and the public constantly whipped up into fear because hordes of these ravenous wolves are allegedly roaming the landscape.

By Goodin’s definition, this is most genuinely a case of terrorism. Perhaps we might call it terrorism under color of law: on the basis of their public authority, elected officials and bureaucrats are deliberately fomenting public fear and anxiety, even though the evidence is clear that the ‘threat’ is hugely exaggerated and statistically negligible. And that’s even before you start wondering if the ‘threat’ is actually more ‘invented’ than ‘actual’.

I use historical material quite a bit on this site. There’s a reason for it: whereas material that’s current can be vivid, there’s no way to know if it actually describes a situation accurately.

Whereas a slightly older bit of material – something from within your own lifetime (or mine, anyway) – allows you to look at things with some perspective. So for example I chose the 1995 Poritz case to do an 11-Post series about, because 1995 isn’t all that long ago, and yet it’s long enough ago so that a reader can judge for him/herself just how much of the Poritz vision was accurate.

And in that regard, I came across a bunch of material** on the pre-school trials of the early 1980s (although the McMartin case – cause of the longest trial in US history, 7 years – was not resolved until 1990). Since a lot of you may have reached consciousness before the 1980s, I am including in the Notes some links to material that I found in conjunction with the 1995 book “Satan’s Silence: Ritual Abuse and the Making of a Modern American Witch Hunt”.

I’ll let the material in those links speak for itself. You’ll find a lot of the evidentiary corruption, investigative misfeasance and malfeasance, and incredible obtuseness (or duplicity) on the part of some judges and prosecutors.

But you’ll also note the literally outlandish assertions made by these toddlers (after questioning by ideological experts and prosecutors). They are so outlandish that it stuns to imagine that any public official would have dared to air them in modern-day America. But the prosecutors did, and for a while there was quite a bit of public agitation … and at least 50 adults went to prison (not a few of them female) on the basis of no-evidence but simply on the phantasmagorical word of these children.

This was in America of the 1980s, hardly the ‘old days’, and yet before the bar of history this era has no right to snigger at the addled villagers of 17th-century Salem.

Reading this material, I think the SO community can refresh a sense of just how crazy – literally – a substrate flows just beneath the surface of things even in this oh-so-modern and enlightened era. But also how quickly the public can snap out of it if given a chance to count-to-ten. (Which hasn’t happened so quickly nowadays because, I would say, back then there was no element of Beltway political influence, which only began to flex with the Domestic Violence and Sex Offense campaigns of the early 1990s.)

And you will notice again in this material that awful confluence, that alliance, between elements and advocacies of the Left and the law-and-order fundamentalism of the Right. (Don’t forget: the pre-school cases centered around ‘ritual Satanic abuse’ – providing a hook for anti-sex, anti-male and anti-‘Satan’ interests.)

Looking at it now, you can almost see the seams and stitches by which this Frankenstein’s monster of a ‘threat’ was put together, almost according to spec.

This unholy alliance, grounded only in the sure and certain outcome that the Big Government police power would get even Bigger, survived the opprobrium of having fomented the pre-school crisis, and in almost no time was back for the Domestic Violence campaign and then – most recently – the Sex Offense mania.

This unholy ‘alliance’ is the biggest monster and the biggest threat, feeding on the fear of the people and its own ideological craziness.

Our era seems less and less rational, less and less mature, less and less sane as time goes on.


*Cass R. Sunstein, ‘The Case for Fear’, in ‘The New Republic’, December 11, 2006, pp. 29-33.

** First, an article from the Counterpunch about mainstream feminist silence in the face of the pre-school trials. Second, a site about the Fells Acres saga in Massachusetts. Third, a review by noted mania researcher Philip Jenkins of the 1995 book “Satan’s Silence: The Making of a Modern American Witch Hunt”.

Sunday, November 8, 2009


I want to look at some of the major points in Aya Gruber’s research paper “The Feminist War on Crime”, a 2007 piece done under the auspices of Florida International University. It’s available here. * (Note: the paper is paginated from 742 to 833 so it’s a little under 100 pages; but it’s highly readable and well worth a look.)

I’d also like to point out a couple of things before I begin. Her concern in this paper is with the history of the confluence of feminism (I would add that it’s more specifically radical feminism and its politically active elements), victim rights theory, and the prosecutor-friendly, law-and-order approach (termed ‘conservative’ for the purposes of her paper).

This is an approach that I think serves well our understanding of the sex-offense mania. Much of what we know from SO matters is first introduced in the domestic-violence arena, which preceded much of the full-blown SO mania of the 1990s (although the now infamous pre-school cases date back to the early 1980s, which is another story). As always, I think it’s vital that persons seriously interested in SO matters have a grasp of how various currents and trends came together throughout the past 25 years or so; concepts and political calculations and actual political alliances morphed together, although I would also say that as you look at it, you get the sense of separate wild-fires starting in different parts of a large area but then burning toward each other until they combine in a super-fire.

By understanding how various concepts and political influences interact we gain a much more comprehensive understanding of ‘the ground’ (to use Sun Tzu’s phrase) on which we are operating as we try to correct the deformations of the SO mania. This is ‘the ground’ on which all the current players are positioned, and as that ground shifts beneath them then we understand the forces acting on them to which they respond. Or, to use a nautical or naval image form the Age of Sail: if you understand how the wind and waves and currents combine and interact, you will be much better able to understand and perhaps affect how all the various vessels in this engagement will behave and act. That’s always a good thing to know.

I will give page numbers from the article to reference major points.

Her Prologue (p742) concerns a composite case around a young poor couple in 2000 in whose domestic-violence case she was involved as a legal advisor to the male. His 18-year-old girlfriend had called the police on him and he was now facing a Hearing on a Civil Protection Order (CPO).

You may be aware that a CPO or its equivalent is a product of domestic-violence legislation; it is a civil (so the law states) remedy by which a person, “upon showing of good cause to believe that the respondent (defendant) has committed or is threatening to commit an intrafamily offense”; it is good for one year and can be renewed. On the basis of a CPO a respondent-defendant can be “routinely ordered to leave their homes, stay away form their children, pay substantial amounts of money, and submit to counseling”, and often loses use of home, possessions, and his car.

Gruber notes in a footnote that “CPOs impose these burdens on respondents without any finding of criminality beyond a reasonable doubt” and are often not represented by counsel at the Hearing (the procedure is putatively non-criminal but only civil – a distinction the SO community is very familiar with).

From a Constitutional point of view, there are grave problems with this entire approach (‘scheme’ is not excessive a characterization here, I would say). The invasion of government authority into the home, the bedroom, and the personal relationships of citizens is ominous. The infliction by government of such broad and deep disabilities upon a Citizen without any trial or finding of guilt must be seen as anti-Constitutional (if not also anti-American) in its very nature. The characterization of such disabilities inflicted on a Citizen as ‘civil’ is a mis-categorization so stunning as to incite alarm in any genuine ‘conservative’ or ‘liberal’.

And any knowledge of human nature – especially in the hugely fraught area of intimate personal relations among individuals, especially younger, less mature, less educated individuals (but not excluding any individuals who are better off financially or educationally) – must sense immediately the profound possibilities of misuse of such a sweeping authority. And this is even more the case as the wider cultural dissolution of the family and parental participation in the maturing process is resulting in ever-larger numbers of immature and relationally-incompetent persons, many of whom are now chronologically ‘adults’.

In this case the complainant is now trying to get the court to allow him back with her, since – the young woman confides to Gruber – “she only called the police ‘because I was mad and wanted him out of the house’".

Worse, unrepresented at such a Hearing, a respondent-defendant is in grave danger of saying something that the State will then use in evidence against him (almost always a him, although in studies not given much publicity the percentage of female-as-initiator of violence in domestic situations is demonstrably higher than the male’s). Yet if the respondent-defendant says nothing or does not appear at the Hearing, then the CPO is routinely granted or extended (for another year). This is not only unfair; it is treacherously weighted against an individual; it goes without saying that this entire scheme a) undermines the legitimacy of the law and b) corrupts the integrity of prosecutor and judicial actors.

In this instance, Gruber is suddenly confronted by a “domestic violence clinic student” who demands to know why she (Gruber) is “talking to my victim”. It would appear to me that while these proceedings are “civil” and no counsel is required, the complainant is routinely provided with such a person who – from the sound of it – has indeed been somewhat schooled in the applicable law and seems to consider the complainant to be a professional ‘client’.

Gruber also notes that prosecutors prefer that attorneys for the respondent-defendant do not talk to the complainant-victim, since that will interfere with the intended trajectory of this type of proceedings.

It’s clear that in this entire area of domestic-violence (DV) law the traditional tenets of American law and jurisprudence have been subverted., and intentionally so. And in ways that would not much later be introduced into the SO mania.

Gruber notes one former prosecutor (p747) who acknowledges that “domestic violence is one area of law where conservative and feminist ideologies converge” – and this conceptual and political alliance between (radical) feminism from the Left and prosecutor-friendly, law-and-order conservatism from the Right is a profound force now exerting deforming gravitational pull on American law (as we soon will see in the early 1990s SO mania).

More frighteningly, Gruber quotes one 1985 law journal article (p748) written by a female legal commentator who observes that “According to the conservative argument, deterrence often doesn’t work, rehabilitation doesn’t work, and retribution and incapacitation are the only tenable justifications for punishment of criminals”. In 1985 in this DV law and the professional commentaries and analyses of it, you can already see the outlines of the SO assumptions that SOs are incorrigible and cannot be rehabilitated, so they must simply be caught, imprisoned and tagged (don’t forget that there were DV ‘registries’ before there were SO registries).

Gruber traces the history of the ‘crime victims’ rights’ movement back to the very early 1980s and the first Reagan Administration (p.749). “In response to a perception, however false, that crime rates were perpetually rising and that the court system afforded too many rights to defendants, a grassroots movement revolving around the victim emerged”. In this sense, Gruber traces what is literally the conceptual invention of ‘the victim’ as a full-blown actor in the court system, replete with suddenly asserted ‘rights’ that actually are of dubious provenance and standing (even today a Victim Rights Amendment is being pressed, so far unsuccessfully, to actually give Constitutional status to ‘rights’ that actually aren’t there).

In this sudden invention of a new character, ‘the victim’, I see the same dynamic that will in a few short years be deployed again, this time to create the ‘monster-sex-offender’. While in one sense you might see the former invention as ‘positive’ and the latter as ‘negative’ – there is a deeper level to the thing: in both cases the position of the prosecutorial and police power of the State and the Federal government is enhanced – and that, I would say, is the key to it. As I said in a recent Post here, the invention of ‘the victim’ solved the government’s ‘Abe Lincoln in Illinois problem’: that Americans always saw the defendant as the ‘underdog’ and as sympathetic and the prosecutors were thus always at a disadvantage – with the invention of ‘the victim’ the prosecutorial power now had its own ‘underdog’ to hide behind.

Gruber will go on in several places – acutely and incisively but not of immediate relevance here – about how ‘the victim’ was embraced by the government only to reinforce its own position but not to actually ‘empower’ the victim, who by the nature of the government’s purposes had to be portrayed as pure, helpless, and thoroughly in need of grateful rescue by the hero-prosecutors and police power.

But she notes here that the victims’ rights movement is more of an “anti-defendant” movement than a movement intended solely to give victims of crime more participation in the criminal process” (p750). She will point out in various places in the rest of the article how designated victims who express any sympathy for the defendant are shushed or ignored by prosecutors (since such victims’ influence, if given play, would run precisely counter to what the purpose of ‘the victim’ is supposed to be in the prosecutorial scheme).

But then Gruber gets to a meaty observation (p750): “Unfortunately, feminist criminal law reform, which began laudably enough with the goal of vindicating the autonomy and rights of women, has increasingly mirrored the victims’ rights movement and its criminalization goals”.

What Gruber is getting at here is the original feminist legal efforts on behalf of women before the legal system became mixed up with the victims’ rights movement (which, as Gruber demonstrates, was actually a front for the rapid and broad systematic engorgement of police and prosecutorial powers).

I also point out the wider cultural ramifications of the ‘victim’ identity: huge numbers of individuals are now growing up and have grown up (victimism has been with us since at least Reagan’s first Administration more than a quarter-century ago) seeing themselves primarily as ‘victims’. As I have said on this site and my other site, you can’t expect folks to function as Citizens, as a Citizenry, or as The People in the Constitutional vision of American society and culture if they primarily see themselves as weak, helpless, surrounded by fearful monsters, and accept themselves as thoroughly dependent upon the government authority to protect them and even – and it has come to that now – to make sense of their lives.

And once ‘the government’ is expected to make all ‘pain’ go away and enforce ‘closure’ upon the open-ended rough-and-tumble of human life, then you have a government expected to function as God – and to the original Constitutional vision such a development is not simply politically lethal but fundamentally blasphemous.

Let me also say here that I am not anti-victim or anti-woman. But I have become acutely sensitive to the wider and deeper and larger consequences of some of the victimism and radical feminism, and I think those consequences are extremely ominous. If I may say it again here: I hold no brief for any human being inflicting violence upon any other individual. But I also realize that there’s only so much that the government police power can do in human affairs before it passes a ‘tipping point’ into a police state, no matter how well-intentioned or at least benevolently presented.

Gruber recounts (p753) how “The second wave of feminism brought rape and domestic violence reform to the forefront of the feminist movement. Motivated in part by Catherine MacKinnon’s theory, feminists moved beyond purely liberal reasoning and asserted that under-enforcement of domestic violence and rape laws represented more than just the failure of the criminal justice system to render formal equality. The lack of enforcement of these laws reified patriarchal views that women are objects and reflected conservative ideology that subordinated women’s issues by deeming them private and thus inappropriate for legal response”.

What Gruber is recounting here is the MacKinnon theory that criminal law must be brought into the most private (and heretofore immune from the criminal law and the police power) realms of the lives of the Citizenry. According to MacKinnon, the characterization of sexual and domestic relationships as “private” is merely “political methodology employed by men to subordinate women”.

Absent from the MacKinnon theory is any awareness of or notice of or appreciation for the huge dangers, Constitutionally, clearly inherent in the expansion of the government police power into the most intimate and private (i.e. safe from government intrusion and control) realms of its citizens’ lives. MacKinnon wants to see government expansion into the “intimate contexts” of citizens’ lives because it is here – in a “social” rather than a purely legal context – that women are structurally oppressed.

I am not disputing MacKinnon’s description of a problem here. I am seriously doubtful about the efficacy or workability or Constitutional wisdom of trying to use the criminal law and the police power to solve the problem. The deployment of the police power here is – eerily – similar to using the military as a solution to the international diplomatic challenges facing the country.

And as more and more individuals are growing up in broken or incomplete families with little or no parental guidance (‘parents’ themselves are increasingly incompetent in matters of human maturity), then the government must perforce be drawn more deeply and more frequently into deploying its police power to referee the increasingly chaotic private lives of the Citizens.

The Constitutional vision of a democratic politics and a Republic requires a mature Citizenry of mature individuals – and the government police power is useless to perform such a task, which had been handled by parents in the stable familial setting. And, of course, such deployment of the police power, in addition to being useless, is also lethal to the Constitutional vision of boundaried government power and to the Constitutional presumption of mature individual Citizens.

Indeed, MacKinnon’s theory – widely accepted not only in feminist circles but also by the political class – asserts that “sex is the core of this phenomena [sic]: sexuality appears as the interactive dynamic of gender as an inequality”. Which translates into the government deploying its police powers against ‘sex’, one of the most powerful and primal of human instincts.

The state has been “complicit”, the theory goes (p754), in the patriarchal and gender oppression of women through “its failure to intervene”. Although no sober Constitutional heart – whether genuinely ‘conservative’ or genuinely ‘liberal’ – can accept such a huge and hugely-fraught expansion of the government police power. And certainly not enthusiastically.

And on top of that, since ‘men’ are seen as the perpetrators in this, then the government is going to wind up invasively ‘warring’ against ‘men’ on behalf of ‘women’ – which is a recipe for political and societal as well as civic catastrophe. We wind up with a situation similar to Lenin’s and Stalin’s and Mao’s deployment of police power against all domestic ‘enemies of the revolution’, whereby they amassed history’s most shocking record of governments warring upon sizable portions of their own populations.

And what has always frightened me is the sense that such a vision seems to far too many elite thinkers to be the very acme of ‘progress’ and ‘reform’, and certainly an ‘acceptable loss’ to be incurred.

Worse, as Gruber then notes (p754), “In the feminist mindset, domestic violence and rape were not merely about individual “deviant” males asserting illegitimate power over individual women. Rather, such crimes reflected larger social inequalities”. Gruber goes on to note immediately that feminist thought saw “sexual and domestic crimes” as “problematic precisely because they reproduced and reinforced not only biases within the legal system but also the vigorously defended patriarchal mindset of society”. These ideas were widespread in the later Seventies.

We are heading here towards a ‘war on men’ and on ‘the patriarchal mindset’. Any one who has worked with the SO mania can see here the clear precursors of a ‘philosophical’ justification for ‘war’ on ‘men’. Especially since the problem is not seen as one of ‘individual deviants’ but as the entire ‘class’ of males.

And when you take this and blend it with the prosecutorial tendency to militarize law enforcement – seeing their ‘enemy’ not as an individual defendant (which is bad enough) but as a “hardened criminal class” (a phrase from President Reagan in 1982) which is itself warring upon society … then you have the makings of an awesome wildfire here.

One interesting note Gruber makes (p756) is that feminists claimed that requiring evidence of ‘resistance’ in a rape case was nothing more than a patriarchal ploy, since such a requirement “did not apply to any other crime”.

I hold no brief for rape whatsoever. But clearly, no other crime involves an area of human activity where the delicate mutual dance of willingness, of invitation and mutual approach, are the constitutive elements of the activity in the first place. There is no probability of such a nuanced human complexity in the interaction with a robber, say: the robber wants your money, and that alone is a crime which you presumably do not prefer to have happen to you; there is no ‘tipping point’ where a robbery suddenly becomes a crime – it is a criminal interaction from the get-go and the law need not have to read tea-leaves to divine the deepest human dispositions of the individuals involved.

This is not at all the case in the human interaction of sex. The activity of human sexual play and relations is not only not criminal in and of itself, but it is one of the most primal and significant of human relational activities (more than it should be, I’d say). Any law system would be prudently hesitant if contemplating involvement in so complex and nuanced an area of activity; there is no clearly criminal nature to ‘sex’ and in all but the most obvious cases your evidence – upon which any legitimate conviction might be based – may well be reduced to the self-reports of one or both parties, for which no corroborating evidence can be produced or discovered, and may not even exist.

This is the awesome complexity which the reigning feminist theory simply ignores and has all along. To simply dismiss all hesitation to get involved as evidence of “sexism” and “patriarchal oppression” and “the complicity of the government” is hugely inadequate as analysis.

While the early DV reforms did not require that women’s preferences as victim correspond always to prosecutorial visions, yet “as time passed, domestic violence reform became more prosecutorial in nature and policies involving intrusive state intervention emerged”, embraced by many feminists (p.757). Further, feminists insisted on mandatory arrest and sentencing policies (on top of queasy changes in the evidentiary rules) because it was felt that without such requirements “police and prosecutors would not make the ‘right choices’”.

But (p758) “the alliance between early domestic violence advocates and law enforcement, however, was tenuous at best, as feminists realized the risks of using state power to make the lives of women better”. And here we get to the alliance that not only deeply distorted and deformed the criminal justice process (not only in DV but then also in SO matters) but did so under the deceptive ‘cover’ of appearing to be a ‘liberal’ and ‘reform’ movement, dressed in the sheep’s clothing of ‘sensitivity’ and surfing on the public assumption that anything that came from the Left and the ‘liberals’ had to be in the best interests of the average citizen.

Instead, Gruber immediately continues, “state institutional mechanisms had historically subverted efforts toward women’s empowerment”. Here I think she is trying to lay the groundwork for an exoneration of feminism: they were duped and used by the prosecutors and the Rightist law-and-order crowd.

But I don’t think that can be. In the first place, Gruber herself (p759) admits that feminists saw an upside to an alliance with the prosecutors: “First, there was a symbolic value of state actors taking domestic violence seriously … [second], prosecution of those who abuse women, many hoped, would send a message to society not to tolerate violence within domestic relationships … [third] this might have some salutary effect on changing sexist attitudes about wife abuse … [fourth] that state intervention would deter future violence … [and fifth] that properly administered state intervention that treated women with appropriate dignity might empower women to stay abuse free.” (Surely, to listen to the news two decades or so later, this last point has proven chimerical.)

In the second place, feminism always needed an ‘enemy’ – ‘men’ or ‘macho men’ or ‘white macho men’ – in order to make its revolution. Every revolution needs an ‘enemy’, and feminism’s varied and complicated agenda, rife with conceptual incoherence and contradictory objectives, almost had to ‘go negative’ to secure a source of unity, since no amount of finessing of the positive points of the agenda could bring about a comprehensive and fundamental feminist movement unity: this revolution, more than most, needed an ‘enemy’.

“The idea that victims were helpless objects and defendants monstrous agents appealed to mainstream sentiments …” [p763]. Yes, melodrama will do that: it makes things exciting, ‘meaningful’, but without the need for any heavy mental lifting: everything is simply good or simply bad and you want the ‘good’ to win. And the revolution needed an ‘enemy’ and the prosecutors needed a front that would put a human ‘face’ on their assorted pomps and works.

In this regard, too, I think you can see where ‘the children’ suddenly came in. Whereas ‘women’ were the focus of the DV campaign, that ‘front’ had become too entangled to use in the SO mania that hit its stride soon thereafter, and so suddenly everything was about ‘the children’ who would, like baby seals in the anti-fur ads, provide the ultimate ‘pure and innocent victim’ in a way that the image of the adult woman navigating the nuanced and complex mutualities of a sexual relationship never could.

The consequences for the fundamental unity of the American Citizenry around the identity of being ‘American’ have been catastrophic. Especially when legislators and pols decided that in order to maintain electoral viability they needed to pander to this ‘demographic’ and so put the full weight of the Beltway behind it. And at this point, as Gruber notes in 2007, “all fifty states now allow police to make warrantless arrests of those [almost always male] accused of domestic violence offenses”. This is far more than Constitutionally repugnant; it is Constitutionally lethal.

But women themselves slowed the surge, refusing to let themselves become mired in the DV system. So much so that Elizabeth Schneider, a feminist reformer, “mused on the dangers of criminalization and questioned whether feminists had directed disproportionate efforts towards prosecution, but [she] fell short of calling for an abandonment of mandatory arrest policies" [p762]. One of the great problems in so much of the DV and the SO manias is that even commentators and thinkers with the skill and placement to speak out authoritatively on these hugely flawed initiatives censor and stifle themselves in order not to upset … whomever they wish to keep in their good graces.

And in the third place, feminist thought really doesn’t seem to be too concerned about the Constitutional ethos at all, nor willing to consider any of the subtle but vital realities underlying the edifice of the Framer’s official vision. Thus one feminist writes that “The dilemma for feminists is to develop strategies for controlling state action – ensuring that the police come when called and that prosecutors do not trivialize cases – without increasing state control of women” [p762]. As you can see, the Constitutional vision and the ‘rights of man’ – as it were – don’t enter into their calculations and concerns at all. Their concern is purely tactical, to protect or advance the interests of their own sex or gender or ‘identity’.

Gruber then goes into significant historical detail as to the origins of the victims’ rights movement. She traces it back to the Reagan era, when tough-on-crime became a premier ‘conservative’ (I would say Rightist) trope. Indeed, it was Regan who set up The President’s Task Force on Victims of Crime in 1982, and it was that Task Force that discovered that the criminal justice system “had lost essential balance and was doing a disservice to victims”.

Although ‘victim’ had never been a primary formal role in the criminal justice process at all; when the government assumed a monopoly of violence, then the aggrieved individuals seeking vengeance had to yield their place to the government’s functionaries: judges and prosecutors and police. This had been one of the hallmark developments in Western justice. And it was certainly so in the Framers’ vision (which Reagan – intentionally or not – was about to distort significantly).

As Reagan himself put it: “This rise in crime, caused by a hardened criminal class, was fostered by a liberal social philosophy that too often called for lenient treatment of criminals” [p764]. We can see here, bright as day, the introduction of the idea of a permanent and incorrigible “criminal class” that preyed on ‘decent folk’ (much as in the old Western movie scripts of Reagan’s youth).

We can also see a shrewd political tactic: the ‘liberal’ social philosophy of feminism, requiring ‘men’ as an ‘enemy’, was conveniently ignored for the sake of the nascent alliance between feminism and prosecutorial expansion of power.

We can also see the seed that would bear terrible fruit a dozen or so years later in the SO mania’s legislative ‘Findings’ that SOs constitute an incorrigible and monstrous criminal class.

Reagan went on: “Is it any wonder, then, that a new and privileged class emerged in America, a class of repeat offenders and career criminals who thought they had the right to victimize their fellow citizens with impunity”. Again, had he merely added ‘male’ before ‘repeat offenders’ this comment could have come from any of half a hundred feminist pundits and writers. And of course, in the SO ‘Findings’ a dozen years later, that’s precisely what happened.

Gruber continues [p765]: “Tough-on-crime proponents characterized crime not as a social ill but rather as an independent force hostile to American society”. I would add that those proponents also did not focus on the relatively small number of individuals who committed crimes but rather conceived of it in military – and almost metaphysically combative – terms as an independent force attacking American society.

This had the dual effect of flattering ‘American society’ for being decent and law-abiding and pure, while providing an ‘enemy’ who was purposely seeking to destroy them. Which, by the by, is precisely the mindset that underlay the Salem Witch Trials: a godly community under attack by the awesome power of Satan and channeled into this dimension by Satan’s willing and evil team of human agents.

Nor was such a conceptual approach inhospitable to feminist visions of evil and oppressive ‘men’ assaulting pure and innocent women at every conceivable juncture.

And so, Gruber immediately continues, “government could declare war on crime and the criminal element, cementing the notion that crime existed as an evil entity that could be beaten with a harsh enough criminal policy”. Much like the cavalry in the old Westerns could do whatever it took to eliminate the Indian attacks on the settlers and the wagon trains. Much like the government in 2003 figured that it could do to the Iraqis what it had done to the sex-offenders here at home.

She continues [p766]: “In this era, government and media perceived criminals not as products of circumstances but rather as defective creatures – a class of people wholly different in comportment from the average, law-abiding citizens”. Well, I concur in part and disagree in part.

First, a person who commits a crime is not necessarily a ‘criminal’, which I take to mean a person with a predisposition toward committing crime, a preference for it perhaps as well.

Possibly circumstances enter into the existence of a criminal predisposition, and the wrong social circumstances or structures can put many persons at risk of developing the criminal potential. If every person who commits a crime is a ‘criminal’, then we are all criminals – and that would be too complicated to use as the slogan-concept for fueling a stampede and a mania.

In a sense, the commission of any crime reveals a defect in the perpetrator. But in that sense we are all defective to some extent (as the old doctrine of Original Sinfulness kept trying to tell us).
But when you try to turn all such individual ‘defective creatures’ into a ‘defective class’, and then try to create the impression that this ‘class’, like the fancied Communist cadres of McCarthy’s era or of the Red Scare of 1919 (in which the young J. Edgar Hoover made his first big strides to power) or the ‘witches’ of Salem (male and female, though the accusers were almost all female) … that this class is some sort of an army or savage tribe attacking the settlements … now you see how the sex-offender mania got rolling.

And you can see how the government and the feminists merged their interests – although, when you lie down with a government, you’re always going to get … fleas.

For much of the 20th century the primal (not to say primitive) ideology of retributivism and incapacitation could only hold its ground on the basis of the occasional truly hardened criminal who was beyond rehabilitation and could only be locked away for society’s safety. But for most individuals who committed crimes, the fundamental American response was an effort to ‘correct’ them, trusting in the fundamental goodness or at least redeemability of the human being. Nor was there widespread acceptance of a freewheeling vengeance, a concept that struck most Americans as truly primitive and certainly unenlightened.

It was to overturn this constellation of civilized values that the victim rights movement – a creature of the Rightist and prosecutorial government enhancement advocates – was developed and deployed, shrewdly dressing itself in the sheep’s clothing of ‘liberal’ ‘sensitivity’.

Gruber acutely outlines the actual state of affairs [p770-771]: “The movement wisely uses the rhetoric of rights … [but] the victims’ rights movement, I assert, is not now and never really was about securing individual’s rights against or benefits from the government. If the movement were about rights it would seek to secure victim autonomy”. But victims do not have any such autonomy. Only those who support the prosecutorial strategy of shilling for vengeance and harsher sentences and punishments are ‘empowered’ to say their piece; victims who seek to move beyond vengeance and harsh punishment are ignored. “The movement has no tolerance for victims’ desires that conflict with prosecutorial goals” [p773].

“In fact, the victims’ rights movement has always been about changing the procedural balance in the system so that it leans even more toward conviction and incarceration. Scholars have observed that victims’ rights were always intended to counter defendants’ constitutional rights” [p773].**

The victims’ rights strategy requires a certain ‘essentialism’ – the tactic of reducing an individual or groups to one core aspect by which the individual or group is permanently defined – and ‘objectification’ – the tactic of treating individuals or groups as objects, either ‘good’ or ‘evil’ but in any case not in control of themselves or their actions [p775].

You can see where this would lead in the reduction of all ‘sex offenders’ to the essential definition (incorrigible monster) and to the objectification as ‘driven by compulsions’ and thus unable to control themselves.

Ironically, it is precisely against the essentialism of a ‘female nature’ and the objectification of women in ‘the male gaze’ that feminism has so strenuously fought. Yet in the alliance with the prosecutors and government, and in the seductive gambit of reducing ‘men’ to an essentialist objectification as dangerous and out-of-control monsters, this was the price that had to be paid: the movement’s integrity had to be sacrificed in order to take advantage of government and prosecutorial support.

To see just how murky and mushy the liberal-conservative lines have become, it is necessary only to read Gruber as she reminds us that “as early as 1984, conservatives took up the domestic violence issue … mainstream government officials, like the former Detroit Police Chief William Hart and John Ashcroft, rejected the idea that domestic violence was simply a ‘private’ family matter” [p794]. When you think of the Constitutional dangers of such an expansion of the government power into the most intimate realms of citizens’ mutual interactions, it is impossible to respect the term ‘conservative’ as it has come to be applied. And for that matter, when you look at the later Ashcroft record on civil liberties post-9/11, you can see that it wasn’t the ‘shock’ of 9/11 that turned him into such an authoritarian overnight – he had been heading that way for quite a few years. ***

That 1984 Final Report of the President’s Task Force reduced all of the complex planes and axes of the domestic violence problem to merely one of criminal activity. This, Gruber notes, had the useful (for the government) effect of distracting feminism’s reformist urges into criminal law, thus weakening its demands for far more radical and profound redistribution of power in American society. So it has turned out that feminism’s original discourse of ‘liberation’ has been reduced to a continuous yammering for increased criminal law power. And in that direction lies a police state.

Although I would say that the government-sponsored war on ‘men’ was radical enough indeed, and the profoundness of its consequences have not yet fully revealed themselves. But they will.

Gruber concludes [p823] that her article “is a cautionary tale about the conservatization of a progressive movement”. As I’ve said, I think the feminist movement – in its radical variant – was neither progressive nor liberal, but radical and revolutionary – and as such posed serious potential threats to a democratic politics and a Constitutional ethos.

But she is certainly correct that this is a cautionary tale: those who seek political power and status by throwing in their lot with the government power, especially where the police power is involved, and especially in these increasingly corporatist times when there is a strong pull towards making citizens more obedient and pliable, run a terrible risk of betraying their own ‘identity’ and further weakening an already battered American national sense of identity and meaning and purpose.

She proposes that feminists stop supporting “criminalization policies”. If that’s true for DV matters, I think it’s even more true for SO matters.


*This is an SSRN site. Once you get to the page, you will see the Abstract of the article. There will be a box entitled "Download"; click on it; it will then give you a page with download options (I use the SSRN-New York option); this will download the 725KB file and prompt you to save or open; I recommend saving to your Documents or Downloads, and then opening and reading it at your leisure.

**I am not saying in all of this that each and every person who is a victim is an active and willing and conscious co-conspirator in this strategy. Nor am I implying that there are no persons who have been harmed – greatly in some cases – by a crime.

***I think it also has to be said that when radical feminists – as they are starting to do more often nowadays – crow about how they have ‘vanquished’ all their macho enemies and that the very scope of their success over the past decades must prove the soundness of their ideas and their cause, an alternative explanation must be considered: ‘feminism’ succeeded in its radical variant not because of its essential soundness, coherence, or value as program and idea, but rather because feminism struck a bargain with government power that was itself looking for a ‘front’ to put a human face on its increasingly urgent drive to exert a more perfect and thorough social control over the American Citizenry.

Perhaps feminism thus ‘succeeded’ so greatly because it willingly struck a bargain with the patriarchal and oppressive government; a bargain in which feminism would play the junior-partner role, as ‘front’ (if not also as dupe and patsy and useful idiot). This is demonstrated with striking clarity when Gruber recalls [p795] that in a 2002 address to a domestic violence gathering, Ashcroft asserted that the greatest harm done by domestic violence is that it prevents parents from instilling “family values”; if there is one constellation of tradition and practice that feminism has consistently decried it is the traditional family, the role of parents and the male-female parental pair, and the existence of anything like ‘values’ at all. Funny how the night moves.