Thursday, September 30, 2010


Before I begin, let me repeat: I do not want to politicize this site and I recommend nothing in regard to voting or supporting this or that candidate or Party.

But in the Senate election between veteran Russ Feingold (D-WIS) and his Republican challenger Ron Johnson, the matter of statutes of limitations in child-sex abuse cases has come up suddenly as a campaign issue and THAT makes it of interest to the SO community, as best I can see.

Let me point out the immediate context: Johnson has suddenly opened up a hefty lead in the race and is – as of this writing, as best I can determine – now neck and neck with Russ Feingold.

Suddenly, a video has been unearthed of testimony that Johnson gave against a Bill (that subsequently failed to gain passage in a Democratic-controlled Legislature) that would remove any Statutes of Limitations (SOL) for a civil action brought by someone claiming to have been the victim of sexual abuse as a child. Additionally, the Bill would have re-opened any such civil lawsuits filed within the past 3 years that were dismissed because of SOL problems.

The Bill was filed in September of 2009 and Johnson’s testimony was given in January, 2010. The pdf of the text (only 2 pages long) is here.

It is interesting to note the short “Analysis by the Legislative Reference Bureau” that precedes the text of the proposed legislation itself: “Under current law, the time a person has to bring an action (the statute of limitations) for an injury resulting from being sexually assaulted or subject to incest as a child, or from being subject to sexual contact by a member of the clergy as a child, is any time before the injured party reaches the age of 35”.

I couldn’t help but notice that in its review of relevant and current Wisconsin law, this Analysis paragraph opens with a sweeping phrase about being “sexually assaulted or subject to incest as a child” but then goes on to specifically add – unnecessarily from a logical point of view – “or from being subject to sexual contact by a member of the clergy as a child”.

That addition gives a bit of a clue as to what may be going on beneath the surface of the Bill, and under the surface of some relevant chunk of Wisconsin law.

I have not been able to locate the Legislative History of this Bill online, which might give some further insights into the discussions in the Legislature that preceded the vote on the Bill. There is a video clip but I’m not having any luck loading it (I’m not exactly a computer whiz).

If you wish you can use the Google or other search engine to review the extensive outpouring of outrage – by mostly leftish but also some rightish groups and sites – to the effect that Johnson is a reprehensible monster for ignoring the plight of such victims in favor of “an elite few”.

That “elite few” – in the phrase deployed by the Feingold campaign – consists of – in the words of the Bill – “an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, or government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity”.

In effect, then, the Bill had sought to open up every single human being and business entity in the State to anybody who wished to try his/her luck at the legal track by claiming to have been sexually abused as a child. It is, I would say, a hopeful sign that the Wisconsin Legislature declined to create such a situation.

Given the condition of “repressed/recovered memory” within current jurisprudence, there is still a large chance that just about any ‘memory’ can serve as ‘evidence’, especially since the burden most often winds up on the accused to prove that he (most often) did NOT do it. And, neatly, of course, ‘proving a negative’ is logically impossible – leaving a nice neat ‘door’ for a judge or jury to say What the hey, let’s assume that if it was not impossible then it probably happened. (Which is also not at all a logical conclusion.)

From an economic point of view, such a Bill – if passed into law – would have opened up every person and business entity in the State to the costs of trying to defend themselves on what has become a field of Mania law and thinking. And in these troubled economic times, there is some logical probability that troubled souls also in need of cash might cross their fingers (in more ways than one) and hope for the best, securing the services of an attorney also game for the gambit.

And with the SOL removed, the alleged action might have taken place years or decades – perhaps even half a century – ago.

And of course, to wonder how psychiatric science could accurately distinguish the wrack of a life caused by the alleged sex-assault from the wreck of a life that for any semi-infinite number of reasons has not ‘worked out well’ … you would not be beyond the parameters of sober reason to wonder.

Here and there in the online articles and comments there is the yawp that “justice” should not be impeded by such fuddy-duddy things as Statutes of Limitation and other legal ‘stuff’. Especially (the Feingold campaign and the progressive commenters are shrewd in this) since the accuser is presumed to be ‘poor’ and the accused ‘wealthy’ and – as aforementioned – the member of “an elite few”.

The SO community will be very familiar with this deployment of the term “justice”.

So let me point out again what many in the SO community already know: when the gods are dispensing justice, they presumably know everything relevant to the case, know what actually happened, and nothing can be hidden from them; they see all, and on that basis make a determination of “justice” and enforce it.

BUT when humans have to do the determining of what the “justice” of a case will be, they have no such superpowers of knowledge (known classically as “omniscience”). Hence over the course of its millennia of existence, the species has evolved assorted methods of determining Just What Happened and Why so as to be able to Determine what the “justice” of the case will be.

For quite some time in the early millennia, ‘magic’ or ‘divination’ was used, and up through the Medieval period in Europe that approach retained some authority. From the time of the Greeks (in the West), up through the Romans there had been an effort to impose a more rational approach to determining guilt and innocene. But with the Fall of Rome and into the Dark Ages, the simple Will of the Sovereign (the local lord or later the Crown) was considered sufficient to make the determination of “justice” in a case. But with the continuing evolution of written laws – by which even the Sovereign must be bound – there then evolved a reason-based process by which provable evidence of action and intent could be matched against the elements of the law that was alleged to have been broken.

And then either a judge or a jury of peers would make the determination.

As I have often mentioned, the English from before Magna Carta and on up into the Enlightenment had made much progress in establishing this objective, rational, evidence-based process. Indeed, what finally stopped the emotional, hysterical lunacy of the Salem Witch Trials in Massachusetts in 1692 was London’s refusal to countenance in its New World colony an outbreak of the same sort of irrational, primitive, ‘spectral evidence’-based jurisprudence that the mother country was already evolving beyond. (And this was less than a century before the U.S. Constitution was put in place.)

For numerous purposes – the political being not least among them – the Victimology Movement of the past three decades was suddenly ‘valorized’ (as progressives like to put it) and the hard-won Western tradition of rational and evidence-based jurisprudence was assaulted in favor of the more primitive and primal emotion-based, vengeance-drenched ‘justice-making’ of an earlier era of Western life and law.

Rules of evidence were weakened to make room for ‘stories’ that were to be given as much weight as actual, factually reviewable evidence; statutes of limitation – imposed for the unavoidable reason that memories fade or are subject to distortion (willful or otherwise) and physical evidence degrades or is lost – were lifted on the fevered assertions that ‘stories’ never fade, ‘memories’ can be repressed and recovered in perfect shape after the passage of decades in a human life.

AND on the subtle derailment of the definition of “justice”: whereas it had been classically defined as the process carefully deployed to most reliably determine facts, it NOW became the simple State act of punishing somebody (who, conveniently, was simply PRESUMED TO ‘deserve it’).

This batch of recent ‘reform’ constitutes the most profound regression of Law in the arduous history of Western civilization. And it was done deliberately.

Although many might be forgiven for thinking that it was all Good because it was Change and Change is always Good. They did not think of context or consequences, but their heart was in the right place: they were moved by the claims of pain, and Pain had become the preeminent Status-giver of the age.

Ron Johnson had opined – rationally enough – that he was concerned for “unintended consequences” that might cause more damage and harm than any good they might accomplish. (And can you say Iraq War?) For which – again you can use the Google search engine to sample the stuff – numerous persons go into the ‘supports child sex abuse’ mode or scream that he is ‘insensitive’ to the ‘outrage’ and ‘the children’. Which are conclusions that cannot be drawn from the evidence of what he said. But then again, you’re back to the ‘evidence thing’ again, no?

And it is claimed that ‘victim rights’ are not his highest priority. Again, I point out the hugely regressive inroads – no matter how ‘sensitively clothed’ – Victimology’s profoundly regressive agenda has wrought in the years since it was adopted by politicians for their own purposes.

Is a ‘victim’ – assuming the status to be genuine – served by the State rushing to commit a further injustice, on the sovereign authority of the Law?

Any aggrieved Citizen’s right to ‘justice’ is – I would think – a right to have the case heard in a well-functioning court of Western and Constitutional justice. Nobody has a ‘right’ to Get What They Want, especially when in order to give it to them the State hastily degrades itself by inflicting sovereign harm on another Citizen.

And any persons or parties or organized interests who attempt to corrupt, corrode, weaken, or otherwise undermine the long-evolved, painstakingly rational and evidence-based processes of Western (and American and Constitutional) justice are surely not ‘reformers’ nor ‘progressives’ but are rather ‘regressives’ in a most lethal sense.

Persons unable to defend themselves on such a skewed – perhaps even rigged – field might be victimized by persons who could bring no proof to the courtroom. (Of course, it is precisely a clarion symptom of the legal regression to primitivism that even to mention anything that might slow down the rush-to-assuage-Pain is presumed to be evil, insensitive, and collusive with the alleged evil itself.)

And – from an economic and ‘business’ point of view – it might make Wisconsin’s atmosphere more unattractive to businesses if they realized that anyone at anytime could come up and file legal claims for large amounts that were, essentially and for all practical purposes, impossible to defend against.

It is not surprising to see such dirty-pool in a close and important political race.

What is of more relevance is how the SO Mania – especially in its tripwire ‘Children’ variant – having been laboriously constructed by the government, is now available for general use as a weapon or tool by which to manipulate and stampede public opinion. *

There is much easily-available conventional ‘outrage’ material for you online, so I will include this article for a more balanced view. (You have to scroll down to the particular entry entitled "WISC SEN RACE TAKES UGLY TURN" dated for 29 September, Monday.)

Again, I take no position on the political race itself and do not presume to urge you or move you in the direction of any particular political candidate or party.

But you can see how the SO Mania has now taken up residence, corrupting and stampeding public deliberation and discourse.

There remains so much to be done.


*I had Posted several times recently about Julian Assange, the Wikileaks founder, who was poised to publish 15,000 or so more leaked documents about the US military in Afghanistan that would be most unwelcome politically just as elections were coming up. He was suddenly accused of some form of sexual-assault and all of the panoply of the SO Mania was deployed against him. As of this writing, Wikileaks is still poised to release the documents and suddenly the sex-offense B-line (as the scriptwriters would say) has disappeared.

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