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.

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