THE NATIONAL INTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY

There is a new Study out (such as these things are in a time of government-enabled Mania).

It is mentioned here in an article and the text of the thing is here .

I want to say a bit about the article and then take a look at the Study itself.

The article is by one David Rosen, who – by amazing coincidence – is in the plumping process for a new book that's coming out, to which he is a contributing author, entitled “Hopeless: Barrack Obama and the Politics of Illusion”. It appears on the usually respectably-handled Counterpunch site.

The book, as best can be inferred by the title, is more of a political work than an SO (more accurately: SO/SV/SA, as I mentioned in a recent Post) book. But it imparts some new twists which are good to know about.

He begins with the observation that “many sex-related stories captured popular attention in 2011”, and “most upsetting, many of the incidents involved sexual violence”. And he quickly sketches an obligatory horror story or two. Once you factor in and make subtractions for the weasel-terms like “many” and the whole definitional problem with “sexual violence”, he seems not to be making much of a point.

But he does have a ‘new’ take on matters.

Rosen seems to be writing from the Left. There is a “sexual politics” problem – again, nothing new there. Unless, I initially thought, he might be working toward an analysis of how old Marxist, Leninist, and Gramscian thought and practice had been imported into the American Universe specifically to ‘justify’ radical-feminism’s war on men (and their sex-offending natures).

But no. He’s up to something else here. “The Republican Congress and many Republican-controlled state legislatures continued their culture-wars campaign to end Roe, to restrict sex education and to cut funding for HIV/AIDS prevention and treatment”.

Which, while actual issues in national politics, don’t really connect with SO-matters, although that’s where he’s going with all of this.

Obama, he thinks, is “tilting to the right in anticipation of the 2012 campaign”.

So Rosen has written a book and here he is going to load into the blunderbuss whatever is hanging around the shop that has anything to do with sex. While the book isn’t out yet, I am going to imagine that the only “illusions” that concern him are the ones that interfere with the dampdreams and agendas of the far Left ‘bases’ who are getting worried not only about him, but about the continued pork-feeding of their numerous enterprises set up during the past decades, back in the days when the government had lotsa public monies to redistribute and when far too many people in the country couldn’t imagine an American government drinking vat-fulls of the red-tinted Kool-Aid proferred to it by the radical-feminists.

He observes that the killing of prostitutes on Long Island clearly raises questions about “law enforcement’s ability to solve horrendous sex crimes”.  Because the “justice” system (scare-quotes his), he claims, must be “either clueless  ... or complicit (like so many police and prosecutor [sic] per DNA exonerations)”.  

I’m not sure just what thoughts are compressed in that rather too-compressed statement. But let it be for now.

He also then tosses in a mention of the Penn State sex-abuse scandal, tying it into the institutional cover-ups there.

But that’s all prelude. For him, what is really “more troubling” are “the findings of a recently released report from the Centers of Disease Control and Prevention (CDC), documenting the alarmingly high level of sexual violence against intimate partners, violence most often perpetrated by men against women” which, according to a CDC honchette, estimates as “almost one in five women have been raped in their lifetime”. A ‘fact’ which, Rosen blurbily blurbs, she considers to be “very striking and, I think, will be surprising to a lot of people”.

You will notice that this is a Study put out by a government agency – most of which can reliably counted upon to put the Correct ‘facts’ out there.

Also that this is about “sexual violence” so you wonder just how far from the path of Correctness this thing could conceivably dare to veer.

Also that the doughty and helpful Center for Disease Control has somehow morphed into the far more ominous Center for Disease Control and Prevention (italics mine). The SO community is well and long familiar with the dangers of a government that has suddenly decided to go into the ‘prevention’ business, to ‘go preventive’ in matters foreign and domestic.

Also that the honchette seems to be a phantasm materialized from some long-distant earlier age, a revenant still shrieking out a (highly dubious and fraught) assertion from decades ago – that almost a fifth of women are raped (however defined) – as if the public hasn’t already been sweating along in the addled scrum of that particular stampede for 20 or 30 years now.

Such are the scripting dynamics of government or government-funded ‘Studies’ that need to justify their own existence as well as blast a ‘factual’ path for the follow-on wagon train of ‘experts’, advocates, ‘scholars’, ‘thinkers, ‘therapists’, bureaucrats, and assorted remora-like entrepreneurs who are trekking along in a hardy professional quest to stake some claims in the last remaining gold-fields.

And such are the dynamics of authors who are trying to whomp up some interest in a new book they’ve got coming out.

But he then immediately goes on to cut the rug out from under the honchette’s assertion by blurbing that “this is an invaluable study that confirms what many have known for years”,  which is perhaps more true than he cares to imagine. “America”, he does declare, “is a terrain of widespread sexual conflict”.

Considering that the radical-feminist and victimist advocacies have been busily helping to resurrect Leviathan (Leviatha … ?) in order to assault and deconstruct the ‘hegemonic white male culture’ in all of its oppressive manifestations (mostly having to do with sweeping into the dustbin of history all the perpetrations, presumptions, and attitudes of the entire male sex), there has indeed been – I would put it – widespread  “conflict about sex”. To the great political benefit of the sitting political class and the return of Leviathan (which had been banished through the Framing Vision and the Constitutional machinery designed to sustain that Vision through the ages).

But Rosen is not simply a mindless supporter. Indeed, he sniffs about the Study that “as a government document, it reflects a disturbing lack of intellectual boldness”. Marvelous. He is multi-axially and bipolar-ly alarmed and upset.

And he himself clearly does not understand that beneath the occasional and tactical focus on ‘outrages’, the Gramscian cadres are dedicated to a long and quiet war of infiltrating government and its bureaucracies with ‘respectable’ scholars and their deceptively-phrased and constructed bland ‘Studies’. Rosen is a man who would have missed the true (if evil) genius of Hitler, who decided in the late 1920s that the only path to real power was by taking over the government through seemingly legitimate processes (the late Fuhrer was legitimately appointed Chancellor by the doddering President von Hindenburg, whose inevitable and imminent death then cleared the last constitutional obstruction to Hitler’s declaring himself head of state and head of government).

So, for example, the deceptively bland assertion the honchette then makes that “collective action is needed to implement prevention approaches, ensure appropriate responses, and support these efforts based on strong data and research”. Within those poly-syllabic and vague abstractions are existing or potential programs, laws, policies, and assorted sly deceptions that – with a few minutes’ thought – you might list for yourself. Hint: “collective action” doesn’t mean commonly-agreed upon action by members of the public, but rather actions quietly (and increasingly secretly) decided upon by the assorted advocacy interests and their political panderers, to be imposed slyly but forthwith.

Rosen himself wants to see more attention paid to the effects on sexual-violence intensified by the declining economic situation – he calls it “the Great Recession” – and feels the Study pulled punches when it did not “ask respondents if violence has increased over the last 4 to 5 years, due to financial hardship”.

That timeframe seems odd, given the decades-long agitations and excitements of the Mania Regime(s), but I imagine he’s looking to tie it all into a charge against the Republicans, who of course are the sole perpetrators of the economic catastrophe (since Democrats only screwed with the economy with the best of intentions, while the Republicans did it out of pure oppressive greed). Which strikes me as a pretty good example of an illusion itself.

He wants to make the case that “the study is a testament to one of the hidden costs associated with the mounting economic, social and political crisis”. When you’re looking to sell a book or flog an idea and agenda, it’s always wise to make as many topical connections as you can. The “political’ crisis he sees is merely a tactical and topical one; the profound corrosions to the Framing Vision and the Constitution wrought over the past decades don’t appear to engage him at all. The “crisis” he sees is merely the increasing difficulty created by the ship’s engines having stopped and the inconveniences of water all over the place; the fact that Titanic has been run into a berg, ripped open like a tuna-can below the waterline,  and is in great danger of sinking outright is not his concern here.

His article goes on for a while longer, picking the most useful stuff out of the Study, but I’ll proceed now directly to the text of the Study itself.

As with almost all Adobe-formatted documents, there are two systems of numbering pages: the page number assigned by the Adobe system, and the page number assigned in the original text. Thus I will use a dual system: page 1/11, for example, will refer to the same page: page 1 in the Adobe numbering and page 11 in the original document’s numbering.

This is the “National Intimate Partner and Sexual Violence Survey” of 2010 (they’re hoping for a long series of them).

It was conducted by “The National Center for Injury Prevention and Control of the Centers for Disease Control and Prevention”. I had mentioned above that this is a government agency and that the wise Citizen (borrowing from the mental stance of those truly oppressed citizens of the old USSR) will presume a certain government Thumb of Correctness to have weighed heavily on the material presented. It’s just good mental prophylaxis (preventive procedure) when you’re wading into one of these things.

The most essential point to make right off the bat is that this is a survey, and the Study is studying the results of the survey that it itself conducted.

The survey gambit has played a huge role in SO matters as also in many many other agendas over the past 40 years. As such, from the get-go and at its very core, it is a highly dubious method of getting actual facts.*

You train your interviewers to ask certain questions (while also gently reminding them that they are being hired to help a certain cause and further ‘knowledge’ that will enable a certain objective). And, by the by, the bosses and bossettes of the Survey decided, for reasons purported to be insightfully psychological, that only females would be hired to do the actual interviewing.

Then you select a group to be interviewed. Then you ask them the questions, either in person or by mail or (as in this case) by telephone. (And don’t be distracted by the solemn and scientific distinctions that this Survey makes between cell-phones and landlines).

BUT the problem with the reliability and accuracy and veracity of the whole thing is thus undermined from the get-go: because there is utterly no way that you can corroborate the ‘stories’ told in response to whatever questions you have carefully decided to ask.

Which means that the interviewee or respondent knows pretty much that no matter what s/he says in response to the questions, there is no way of anybody ever trying to find out if the story is true or not. If you think ‘victim-friendly’ investigation procedures are kinda almost guaranteed not to provide reliable facts on their own, then the survey method increases that lethal problem exponentially. And this is probably even more so when you are doing telephone interviews where the story-teller doesn’t even have to look you in the eye.

So then no matter how many bells-and-whistles and various bits of the machinery of a genuine scientific and scholarly Study are stuffed into the document (and this one is loaded with charts, graphs, percentages and estimates and numbers and lists) the whole thing is nothing more than a precariously balanced upside-down pyramid, resting completely on the highly questionable veracity of the stories you have initially collected by just asking people to go on and on.

No effort was made to corroborate or ‘question’ the stories that were collected. (And if you put yourself through the experience of reading books from the ‘outrage’ Era of the 1970s or the self-help for victimization Era of the later 1970s and 1980s, or any of the quickie ‘advocacy’ books of any phase of the overall Advocacy Age … then you realize how much government action was based, actually, in ‘stories’ that were never checked out in depth and with care.)

(This is a stunning bit of reality that radical-feminism proved particularly sly in masking: women – as the term is used in these matters – have a different way of ‘knowing’, and it comes not from macho ‘abstractions’ and the insensitive insistence on ‘facts’, but rather on ‘experiences’, usually as remembered or discovered or shared in consciousness-raising sessions among a ‘supportive’ group of the like-minded who could reliably counted on not to be so insensitive and oppressive as to ‘doubt’ or ‘question’ your story and your pain and thus re-victimize you all over again.)

The Survey lists the National Institute of Justice as one of its main associates in compiling the facts. This is the research branch of the Department of Justice – which should also tell you something. (And you might recall that the FBI, a noted division of the Department of Justice, has just recently decided to ‘re-define ‘rape’ according – to use law professor Catherine MacKinnon’s long-held insistence – from the female point of view, in which penile penetration is merely a stodgy and self-serving ‘male’ definition. She prefers the ‘female’ point of view that just about any sexual experience can ‘feel like rape’ to a female, and the law should reflect that.)

The Survey also lists the Department of Defense Family Advocacy division as another associate in the project. (And you might recall that the DOD’s military justice system has now shifted the burden of proof in sex-cases to the accused, and is probably going to be literally enacting MacKinnon’s theory  into applicable military sex-offense law.)

The Survey also lists the Research Triangle Institute International, a research company founded in 1958 that is heavily involved in, to use a general term, ‘government work’.

 The DOJ and DOD are also thanked (p.vii/9) for financial support as well as collaboration.

The Survey also admits, buried deep in the text (p.8/18), that it was “deeply influenced by the National Violence Against Women Survey”, so the specter of VAWA hovers above and behind the whole thing as well.

The Executive Summary begins on p.1/11.

The opening line says much: “Sexual violence, stalking, and intimate partner violence are major public health problems in the United States”. (p.1/11) So there is a significant shift now, from crime to public-health. And, of course, to the prevention of said public health problems.

As you may well imagine, ‘sexual violence’, ‘stalking’ and ‘intimate partner violence’ are verrry broadly defined, and if you have had even one instance of being touched or name-called or importuned without violence into having sex, then your story qualifies for the Survey’s ‘factual’ base.

This definitional problem, however, is not one of continually screwing with the definitions in order to keep the ball rolling. No, rather, “our understanding of these forms of violence has grown substantially over the years”. (p.1/11) And we know this from all the stories we have been hearing and how they keep getting worse even as more and more government money is poured out, and the Mania Regime(s) continue to expand, and the integrity of the legislative and public deliberative political processes continues to be eroded and corroded or is simply sidestepped altogether.

This telephone Survey was also looking to find out about and include “types of sexual violence other than rape; expressive psychological aggression and coercive control, and control of reproductive or sexual health”. (p.1/11)

That “expressive psychological aggression” includes being called names and that “control of reproductive or sexual health” includes being asked not to require a condom.

About 16,000 adults (over 18) were interviewed, breaking down into roughly 9,000 women and 7,000 men.

Among the Key Findings (pp.1/11-3/13): “Nearly 1 in 5 women (18.3pct) and 1 in 71 men (1.4pct) have been raped at some time in their lives”. Decently, the Survey limits this definition of rape to some form of achieved or attempted penetration (actually, this may be a strategic slyness: the ‘new’ definition of rape might well provide number’s so astronomically high as to invite public ridicule).

More than half of the females (51.1pct) reported being raped by “an intimate partner” and a further 40.8pct by “an acquaintance”, for a total of over 90pct who were not raped by the classic ‘stranger’. The shift seems to be toward intensifying government intrusion into and regulation of personal (rather than ‘stranger-initiated’) sexual relationships.

It seems to me that you are going to need a police state far far surpassing the days of the Stasi and the KGB to police this realm.

It also seems to me that having a) removed all the ‘moral’ constraints from ‘liberated’ sexual habits and then b) discovering that females thus liberated were in need of awesome amounts of government police support to ‘protect’ them (let alone ‘prevent’ the ‘pain’ of all this), then the entire combined weight of Boomer sexual liberation and radical-feminist ‘women’s sexual liberation’ were almost tailor-made to undermine the Framing Vision. And turn the country into a police-state.

This is especially so because the thought comes that perhaps the experience of such a large group simultaneously being ‘liberated’ and almost immediately demonstrating so urgent and thorough a need for police protection at such intimate levels of personal and social life might indicate that the ‘old’ and ‘oppressive’ sexual morality practices of a prior age in history might not have been such a bad idea after all.

And surely, the Framing Vision and the entire American Experiment in democracy were predicated upon the presumption that Citizens were at least modestly responsible, mature, and competent adults who were capable of mastering and conducting their own personal and social lives. Indeed, that such competence thus fitted them for exercising their role as Citizens and collectively as The People as ‘governors of the government’.

Instead, what we have now seen and continue to ‘discover’ with exponentially intensifying and expanding urgency is that Citizens can neither be presumed nor expected to govern themselves and thus require the governance of the government in all aspects of their lives. (And what lies hidden just behind that is the ‘new’ presumption that such thorough dependents of the government can clearly not be fitted to govern the government … which truly is a profoundly alarming thought.)

“Stalking” stories qualify so long as the respondent “felt very fearful or believed that” s/he was the subject of a stalker or that somebody near them would be “harmed or killed” (however ‘harm’ is defined here).

“Intimate partner violence”, causing – it is asserted – PTSD symptoms, headaches, and even the “missing of at least one day of work or school” is reported by 30pct of women and 10pct of men.

And thoughtfully – especially in the run-up to a major election cycle – minorities are afflicted at even higher rates, although (as the Study will venture to assert a bit later on) this is no doubt caused by declining economic conditions.

More interesting is that “across all types of violence, the majority of both male and female victims reported experiencing violence from one perpetrator”. And that the majority of females reported that the perpetrators were male. And that males also reported predominantly male perpetrators for “unwanted sexual advances” and “stalking” (perhaps reflecting some inconvenient consequences of yet other types of recent ‘liberation’).

But also that for other types of sexual violence the males reported mostly female perpetrators. (Raising, with a surprising clarity, the female-perpetration side of all these sexual-violence and partner-violence episodes.)

Among its proposals for prevention, the CDC here recommends better training “in families”, (p.4.14) although how such an exhortation can possibly square with other advocacy interests’ declared hostility to family and parental authority is a question not dealt with here. Perhaps huge numbers of jobs might be created by a government bureaucracy assigned and authorized to make parents (however defined) take official classes in how to handle their families.

At any rate, the Survey insists that the problem requires much much more “data-driven and collective action” (p.4/14) although a Survey hardly provides reliable “data” and “collective action” is a code for something else altogether.

We learn that “psychological aggression” includes “expressive aggression” (name-calling, for example) and “may be even more harmful than physical violence” (p.9/19) So in addition to the obviously harmful physical violence, it is now asserted that non-physical violence is even more harmful, neatly boxing the compass and leaving the reader with the conclusion that the only options are clear-violence and even-worse unclear violence. This ice-cream cone was designed from the get-go to lick itself.

In many of the definitions, a spectrum is implied, ranging from obviously harmful (and criminal) violence to single-instances of such quotidian realities as name-calling and even imagining that you are the sustained object of somebody else’s attentions. Yet within any such broad spectrum, the Survey slyly neglects to say what percentages reported the most outrageous experiences and what percentages reported the quotidian experiences.

“Most victims of rape knew their perpetrators”, is one highlighted quotation from the text. (p.21/31) This at first might seem a hopeful indicator that the awful SO Mania SORNA laws might thus be justifiably abandoned, but my guess is that what they’re going for here is not an attempt to temper the Mania Regime(s) but rather to expand and intensify the public anxiety about any and all “sexual violence”.

The list of “stalking tactics” (p.29/39) includes any instance of unwanted emails or texts, or the unwanted receipt of a gift, as well as the more commonly-accepted signs of actual (and truly sad and creepy) stalking. Again, no effort is made to distinguish percentages here, along the spectrum.

However females reported only 13pct of their stalkers were strangers, and males reported 19pct were strangers (curiously, I thought).

Also males reported so low a number of ‘persons in authority’ stalking them (p.33-43) that the Survey declines to report any percentage at all (although the category would, the Survey indicates, include ‘clergy’ and ‘coaches’).  While females reported for this category a number of only 2.5pct.

Oddly, 6.8pct of females’ stalkers and 5.3pct of males’ stalkers are categorized as “family members”, which almost brings a bemused furrow of the brow: given the stalking-parameters, how can a family member not stalk another family member?

Among “lifetime reports” of psychological or non-physical “aggression”, females reported that the largest incidence groups were being called names and being continually asked where you were and what you were doing. (p.47/57). Among males, the highest categories of incidence were precisely the same types. So apparently then any ‘Whatcha doing?’ or any ‘You dope!’ qualifies for the stats.

You can go on to see exhaustive break-downs by States and by this and that, but you can be assured that the numbers (estimated, of course) always rise to the many thousands and many hundreds of thousands, which probably all add up to millions if you take out your pencil or calculator and do the math.

But by the time you make subtractions for a) fuzzy definitions that are slyly arranged along a spectrum such that you cannot distinguish the (few) outrages of the higher end from the (many) downticks of the lower end and b) the ‘estimating’ or extrapolating of huge numbers from so few incidences; and c) the whole game based on anecdotal information from persons who know they will never be held to account for the truthfulness or otherwise of their ‘reports’ and ‘stories’ … well, what’s left really?

But this is a snazzy production with all the costuming proper to a major Study.

It is no doubt going to be printed up and dropped with a thump on the desk of any office whose owner might be able to further the gambit, through funding especially.

And snippets from its text will be larded thickly into sound-bites, officious agreements and statements of support, and – but of course – will spawn an echo chamber effect whereby platoons of already-implanted cadres throughout the academic establishment will churn out variations on the theme. And of course, the overly-accepting mainstream media will be blast-faxed with memos containing select snippets. And the Thing will probably be read into the Congressional Record by some eagerly pandering pol.

The whole thing is intended for the purpose of pressuring the pols (who don’t really need more than a well-printed and hefty tome like this as ‘cover’ and excuse for pandering) and hoodwinking the many people who still assume that if the government and the academy both come up with a plan then it is necessary for the common-weal, and it will work, and it will work without serious cost or consequence.

How the now-established Beltway ballet will work with the utterly indispensable cash running out is a good question.

And in regard to what I have been saying about the deliberate and intensified migration of the SO Mania and all its wagon-train of advocates, enablers, practitioners, and their own trains of assistant assistant demons into the military under the auspices of the Pentagon, the situation of the Mania’s losing steam in the civilian world has ignited a lethal if desperate strategy: the military budget will be the last to go, yes – and that plays no small role in the calculations of the assorted Maniacs.

But the country has also been sliding toward a militarization – especially since 9/11 – that is by its very nature the antithesis of the independent civil society envisioned by the Framers as the true heart and soul of their Great Experiment. Once upon a time war was an occasional state of affairs and limited in large part to the soldiery; the robustness of the Citizenry and the strength of the Constitutional machinery were considered more than adequate for preventing serious permanent derangement.

But war has now become a continuous national condition, and not simply by accident but through government intention and deliberate manipulation.

And if the National Security State slide toward military rule (as in the new military budget bill) connects deeply and extensively with the National Nanny State’s presumption that the Citizenry is merely a mindless, helplessly incapable herd of potential or probable victims – who may not even yet ‘know’ that they are victims – then I think the Framing Vision is in terrible danger.

You cannot maintain a nation based on the Framing Vision while simultaneously limning and rendering huge swaths of the Citizenry as helpless and hapless victims of another huge swath of the Citizenry.

This is the truly fatal Consequence that has always dwelt in the abyss at the heart of all radical-feminist and victimist agitation. And to lure that closer to the surface through the most surely anti-American gambit of giving it a home in an increasingly militarized law and polity is to work – however good the intentions you claim – for the utter corruption of the American political and cultural Universe.

These are the stakes here.

NOTES

*So for example, earlier this month in Holland the priest-abuse civil-tort piñata was set up by the loudly publicized issue of a ‘Report’ that insisted up to 20,000 Dutch children had been abused by priests in the period 1945-2010. While it seems that the actual text of the Report is nowhere to be found online, this much is certain: the ‘Report’ is based on a survey; 34,000 people were interviewed (unknown through what modality); from the stories they got the Report-writers simply extrapolated-estimated the number of 20,000; there is some sort of a ‘spectrum’ created by worst-case to least-case types of targeted action but no news report bothers to examine that; there are also no questions as to the definitions of such key terms as ‘unwanted sexual advances’ or (especially with the new rape-is-what-I-feel-it-is definitions now floating around) ‘rape’. And of the 800 or so priests ‘reported’ in these stories to be guilty, over 700 are dead (and conveniently cannot defend themselves).

Also, while the text appears nowhere on line, it is an 1100 page thing. Large enough to a) impress merely by its weight while b) too large to discourage any close reading by any but the most intrepid (which does not, alas, include much of the media). And the fellow who headed up the commission that put it together was a former Minister or Ministry-official in the government.

I had mentioned the possibility of this new start-up of the priest-abuse sue-for-money Phase (initiated here in January 2002 in Boston) in my recent Post on the Vatican and the International Criminal Court lawsuit brought by the queasy S.N.A.P.organization (now facing its own legal troubles, ironically).

With their own economies in such difficult shape, I doubt a European government would pass up the easy political advantages to be gained from distracting their populations with what really amounts to a lottery whereby you can soothe your financial anxieties by coming up with a workable story, putting your name on some enterprising tort attorney's list, and waiting to be notified of your share.

THE INNOCENCE PROJECT

A recent, interesting one-page piece  in ‘The New Republic’* comes out in favor of The Innocence Project, in the matter of DNA exonerating convicts (often only after a decade or more in prison) who had been convicted by eyewitness testimony.

Of the first 250 convicts freed by subsequent DNA testing, 190 had been convicted by eyewitness testimony or identification. In 43pct of the first 250 cases, an innocent person had been convicted and was serving time when the real perpetrator was finally identified.

The SO community (we should recall that we are really the Sex Offense, Sexual Assault, and Sexual Violence community since the Maniacs are busily trying to re-badge themselves as they desperately fiddle with ‘definitions’ and ‘frames’ in order to keep their ball and train in business; SO/SA/SV) is already familiar with the unhappy history of ‘recovered memory’ and also with the profound problems raised by human memory.

In a nutshell: human memory is a dynamic, subjective, selective process at the best of times – and is in no way a ‘mental snapshot’ of ‘exactly what happened’.

The Editorial acknowledges that while eyewitness testimony (based perhaps also on an eyewitness identification) is “a necessary and inescapable part of the justice system”, yet “the problems it creates run deep".

A major problem is that it’s difficult for defense counsel to uncover the errors in such memory on the witness stand since eyewitnesses so often so intensely believe what they are sure they saw (and who they saw).

As you may well imagine, this hellish problem cannot but be exacerbated by victimist insistence that a) the allegant’s ‘story’ must be believed or else h/she will be ‘re-victimized’ by an insensitive legal process and that b) the traumatization-victimization experience (however defined) actually does take a mental snapshot that resides in the memory like a file resides in a computer hard-drive, to be recalled pristine and fresh at whatever time in the near or distant future the allegant suddenly ‘remembers’ it.

And such eyewitness confidence tends to impress jurors far more than it should, since most jurors themselves are not familiar with the complexities (and evidentiary-level unreliability) of human memory.

As always, in the genuine therapeutic forum, a ‘memory’ and the patient’s ‘presenting story’ are always grist for the competent therapeutic mill, but are never to be presumed to be entirely accurate (and that is presuming that the patient is not simply ‘confabulating’ (mixing imagination and recall) or making the thing up for ulterior purposes).

The Editorial mentions  a book out now, “Convicting the Innocent”, by Professor Brandon Garrett of U/Virginia Law School that discusses this at length.**

Garret reports that in 78pct of those cases for which he could obtain trial documents “the police had contaminated eyewitness identification with suggestive procedures – such as conducting a lineup where the real suspect obviously stood out from the others or by somehow indicating, intentionally or otherwise, which person should be selected”.

And he is not discussing SO cases here specifically, so you can imagine what it is like in a possibly high-profile SO/SA/SV case where the police are under pressure to make an arrest quickly. And where the police have perhaps been ‘trained’ in ‘the complexities of sex offense investigation’ that operates on the Correct Theory that the victim cannot (and should not be made to appear to be) wrong, and that any arrest will ‘send a message’.

Garrett makes a number of sensible suggestions that are simple enough to implement (except, I would add, for objections from the feminist-victimist advocates).

Currently half a dozen states are considering ‘eyewitness reform’ statutes and policies.

Garret is associated with The Innocence Project and you can look at some of their relevant material in this matter here and here .

Threatened with the testimony of an absolutely-sure ‘eyewitness’, it is hardly inconceivable that an accused – even though innocent – might figure or be advised by defense counsel to take a plea-bargain; thus, in effect, the accused is cowed into making a false confession.***

Testimony dubiously obtained through sub-rosa State arrangements with ‘snitches’ or testimony backed up by improperly conducted forensic testing simply adds more hellish complexity to the mess. (Although in Correct feminist-victimist Theory ‘complexities’ that afflict the accused are merely part of the punishment for a guilt already presumed.)

Says the Editorial: “Conservatives and liberals should have an equal interest in freeing the innocent and identifying the guilty”.

Bravely spoken.

But there’s wayyyyy more to it than just a great, good, and valid principle.

For radical-feminism, all sex is rape in the first place. For the more intense forms of victimism, it’s the victim’s pain (and avenging it or bringing 'closure'), not the intensely probing focus on ascertaining guilt (let alone innocence) that must take precedence. For both, taking a bite out of the culture-wide ‘oppression’ trumps the innocence or guilt of any particular accused; a rather insidious and toxic assertion that is only further contaminated by the presumption that in matters of sex all men are guilty anyway and this particular accusation is merely the pretext for taking another one off the street (reminding me of what Justice Scalia said only half-jokingly two decades ago: “he probably did something else wrong anyway”).

And for the law-and-order Right one is apparently innocent until accused, which dovetails nicely enough with the feminist-victimist presumption that all men are guilty in the first place: at the choke-point of the trial itself, both Left and Right can agree on what needs to happen to the accused.

Thus the Editors are woefully unaware (or choose to be) as to just how profoundly subverted the core great and good principles of the Framing Vision have been undermined in this country for the past 40 years, and especially in the past 20 years of the Mania Regime(s).

Under the relentless and unprincipled manipulations and agitations of feminist and victimist advocacies, and – far far worse – with the eager collusion of all three Branches of the national government and so many of the Branches of the state governments as well, and of the media for its own purposes – there are now many people in the country who not only unthinkingly or deliberately subscribe to the innocence-isn’t-the-point theory, but also can’t even begin to appreciate how the core principles of the Framing Vision, the Constitution, and of the Republic itself have been ‘emergency-reformed’ away.

Thus when the Editors conclude with an exhortation that “At this deeply divided moment in American politics, it’s hard to think of a more urgent and bipartisan cause where the problem is so well-understood and the solutions are so easily within reach” … I don’t think their conceptions really encompass the awful extent of the problem as it now stands.

Because to start implementation of these solutions is going to run right up against feminist-victimist insistence that the allegant’s (or ‘victim’s’) story cannot be doubted or tested. Can you imagine what they would say if an ‘eyewitness victim’ or a ‘victim’ reinforced by other ‘eyewitnesses’ were subjected to even the simplest testing procedures to try to clearly establish the identity of the actually guilty (let alone the validity of the victim’s ‘story’)?

I believe that there are now elements of the victimist advocacies who would agree with the objectives of The Innocence Project. But I cannot imagine that they are in the majority among their peers in the advocacy organizations who now rely on the gravy-train for jobs, status, and pay.

Nor, as I have been saying in recent Posts, do I think that the politicians are really prepared to antagonize a vital if radical ‘base’ in a difficult election year. Deal-makers, like used-car salesmen, aren’t known for their principles and courageous support of the truth, whatever betide. While they may piously agree with the scriptural exhortation to ‘let justice be done even if the heavens fall’ they aren’t really going to go along with the principle if it winds up that doing that justice is going to result in the Party’s or their own electoral fall.

And, lastly, in the overall Marxist-Leninist vision – in which far too much of the advocacy movement is soused whether they realize it or not – the only relevant ‘justice’ is not that meted out to any accused in any particular case but rather the only relevant ‘justice’ is that which serves the Cause.

Which isn’t really so far from the quiet presumption that the only important ‘justice’, in the long run, is that which serves the Party. And the regime. The Nanny State and the Security State are not only “sisters under the skin”, but are sibling-offspring of the Leninist-Maoist concept of the ‘revolution’ and the ‘revolutionary state’ and ‘revolutionary politics’ and ‘revolutionary justice’. Oy.

Contrary to what so many of the assorted advocates believe about their own Cause, it is the SO community that really is on the ‘cutting edge’ of American history, as the struggle to re-establish (or forever and meanly lose) the Framing Vision continues to intensify.

NOTES

*Under the title ‘Out of Sight’, in the print edition for December 15, 2011. It is the issue’s Editorial, appearing on the first page.  The electronic link leads to a subscriber-only paywall.

**You can see a review here or you can enter ‘Convicting the Innocent Brandon Garrett’ in your search engine for reviews or where the book is available.

**Nor am I here implying that any accused who makes a false confession or takes a plea-bargain for something he did not commit ‘deserves whatever he gets’. Once you realize you are standing on ground-zero and the State is preparing to drop the Big One on you – courtesy of that eyewitness testimony – then you are faced with having to make some awful calculations (and defense counsel in a time of Mania are not out of line helping him to decide in favor of a plea-bargain rather than face an inflamed and under-informed jury on top of everything else mentioned above).

POLITICAL THOUGHTS

Please let me do this just once.

I have just put up an Addendum to my previous Post, but it's possible a number of readers have already read that Post. So I am going to put that short Addendum here as well, as a free-standing Post.

These thoughts are prompted by the contemplation of the SO/SA Mania advocates and enablers now turning on the military itself.

I am putting a few somewhat more specific political thoughts down here. As best I can manage, I keep politics out of the essays on this site. That's not always easy because the SO/SA Mania Regime is nothing if not a political creation. What I want to do here is just share these thoughts, clearly marked as 'political', briefly.  

Clearly the Dems are now reaping the whirlwind. At this point the sitting political class has either drunk the Kool-Aid or are now trapped – especially in a difficult election year – in a lethal embrace with their most radical ‘bases’. And those bases themselves are now making increasingly strident and perhaps desperate demands.

Radical feminism (which – alas – has become synonymous with ‘feminism’) and victimism are now themselves agitated by the increasing decline in the government pork supply which has fueled their Great Day At The Beach for decades, and consequently are both a) urgently in need of tangible re-assurance and b) eager to lock down their ‘successes’ or at least keep their gravy train going on whatever track remains available.

And for all of them, the pols must see the dual ‘solution’ of intensifying i) the SO (and now SA) Mania ii) in the military as a simple and most efficient response.

This assessment, of course, reflects the bankruptcy of ‘deal politics’ in the Age of Identity in this country: the Deal is judged not by its contribution to the commonweal nor even in relation to any integrity, coherence, or efficacy in relation to the Framing Vision, nor even in terms of how a decades-sized load of such ‘deals’ might cumulatively crush the increasing fragile structure of the pols’ own legitimacy (which is an element that’s no longer ‘off the table’, as the Beltway players like to say).

These ‘solutions’ rather quickly and virulently reveal the baaaad consequences that potentially existed within them from the get-go. Leading to yet another round of witless pandering and grossly irresponsible Legislating.

Do these people not worry about the common-weal, or at least the problem of their own legitimacy – integrity is no doubt A Bridge Too Far – at all?

This extension of the SO/SA Mania not only into the military but against the very military operation command structure itself simply spreads one very lethally bad plan into a vital area already deranged by a prior lethally bad plan; the SO/SA Mania Regime on top of the Stalinist-inspired UCMJ core dynamics of 1950.

The reader somewhat given to the history of ideas might note the eerie and ironic symmetry: the Gramscian-inspired Leninist Mania ‘advocacies’ are assaulting the Stalinist-inspired UCMJ … as the genuine elements of American law and politics embodied in the Framing Vision, and the productive elements of the American economy, all shudder and slow and fill, compartment by compartment, reflecting with intensifying vividness the profoundly lethal consequences of the Beltway pols’ eagerly importing multiaxial Maoist “cultural revolution” and the Gramscian undermining of the “hegemonic culture” forty Biblical years ago. Funny how the conceptual night moves.

And so America becomes the last stage for the whackulent, virulent hashing out of Marxism-Leninism, and – in a final and perhaps fatal indignity (courtesy of the Beltway pols, Rightist as well as Leftist) – its enablers and advocates are now scrumming each other for what little remains to be grabbed, secure in their own delusion that it has all been ‘liberation’ and ‘reform’ and that they are still major Shapers and Players on the cutting edge of History and Progress.  

And this comes to resemble not so much the final self-dissolution of the USSR, which blood-soaked monster actually went out with a world-historical dignity and order in the service of a long-hoped-for Possible Future. Rather, I think that the Beltway in its declining agitations is (to borrow a trope from the shocked Dowager Queen during the British Succession Crisis of 1937), coming to resemble “Roumania”.

Forty Biblical years of the most dangerous political toying with the demons of Revolution and ‘cultural de-legitimization’ and Totalitarian Praxis will now play out as a cash-status-and-power-addled official scrum on the National Lawn of some Balkan or banana republic from the bad old days. (And allow me to suggest that you give yourself this Christmas present early: watch the Marx Brothers 1933 masterpiece “Duck Soup”.)

Please forgive the injection of my political opinions. . But so much remains to be done.

H.R. 3435 and S. 1867: MILITARY SO STRATEGY

Two Sex Offense-relevant Bills have caught my attention, now somewhere in Congressional process. They both have to do with how SO matters are dealt with in the military.

I want to say right off the bat that in talking about SO matters in the military here, I am going to be looking at what I think is a large new twist in the overall Beltway-Advocacy SO strategy. Thus while you may or may not be directly interested in the military-arena of SO matters, what I am going to be talking about has relevance (it seems to me) for a new direction in national SO strategy generally, which perhaps reflects larger trends in the country.

Additionally, I think that these new military-related developments give an insight into the strategizing that seems to be going on – there are elements in the Beltway putting a lot of thought (such as it is) into these things.

It started in mid-November with a Congresswoman from the San Francisco area (Speier, Dem.) putting up a short Bill; article here. The Summary of the Bill put out by her office is here, and the text of the Bill (designated H.R.3435) is here.

This is a short Bill as these things go. But it demonstrates all the usual tropes: there is an “epidemic” of sex-crimes in the military, although – neatly – it is a “silent epidemic” (meaning you might not be able to see it but you can take advocates’ and legislative supporters’ word for it that it’s really there.

The Congresswoman’s office has been working on this for some months; a new local advocacy group, headed by a “long time human rights activist”, has been started up in her District; this long-time activist had previously served as the Congresswoman’s campaign director for  a failed Lieutenant-Governor race in California in 2006. The organization calls itself ‘Protect Our Defenders’. The organization has also spawned a web site – it has a “media relations” division run by a local political operative – and that site has put up a number of videos of alleged victims who tell their stories.

The Congresswoman began making frequent speeches on the House floor outlining the huge and glaring problems of sex-assaults in the military (she has currently made at least 12 of them). She had lunch with the Secretary of Defense.

When she introduced the Bill in mid-November she quickly picked up 41 official co-sponsors, 12 of them from California and all  41 are Democrats. (Three weeks later she has 81, and all are Democrats.)

The Congresswoman says she is trying to build momentum “from the ground up”.

The problem, as she sees it, is that while there were 3158 allegations or complaints of ‘sexual assault’ (however defined, of course) in the military in 2010, only 468 were deemed worthy of some level of military-justice action or disciplinary action. One disappointed complainant reports that she was told by her command that she had had consensual sex and “then changed her mind”.

(A quick recall here of how the military-justice system works: a complainant-allegant reports her (or perhaps his) complaint to his/her immediate chain of command (at the company or battalion or ship level), and that command officer makes an assessment as to whether or not the complaint warrants either disciplinary action by that commander (referred to as Non-Judicial Punishment) or else refers the matter up to a higher-commander, who has the authority to initiate an actual military-justice investigation and can, if s/he decides, initiate a court-martial proceeding.

There are two levels of court-martial, Special and General, roughly corresponding to misdemeanor or felony-level criminal trials, although as always I strongly caution that all use of familiar civilian criminal-trial terms is verrrry iffy; the military justice system (see my recent Post and its Notes in the “Foster case” here) bears only surface resemblance to the Constitution’s required protections: it has the familiar furniture any civilian would recognize but the fundamental dynamics required in the Framing Vision’s concept of criminal justice are utterly undermined by the military need to Control Outcomes.

If the allegation goes that route to the higher-command, the Service’s military-investigation arm conducts an actual investigation, reports to the JAG (military lawyer) attached to the higher commander, and that report is examined by another officer on the higher commander’s staff who makes a final “Article 32” assessment and a recommendation to that higher commander as to whether the matter justifies the higher commander initiating a court-martial process. The “Article 32 officer” is the military equivalent of the civilian Grand Jury; clearly, the word “equivalent” is highly figurative, since s/he is hardly independent of the command authority of the higher commander on whose staff s/he serves … but then the entire concept of “independence” of the assorted players in the military-justice system is highly figurative to begin with, and that reality – as I have often said – was built into the system from the get-go in 1950.

That Article-32 officer’s recommendation may or may not be accepted by the higher commander him/herself, who has complete authority to initiate or reject the court-martial option, regardless of the Article-32 officer’s recommendation; so much for an independent and authoritative ‘Grand Jury equivalent’.)

The Congresswoman’s basic claim is that since so many of the sexual-assault claims are being turned-back at the lower levels or the higher levels of the system, then she wants to erect an entirely new bureaucracy within the military, separate for all practical purposes from the actual chain of command, for handling SO claims and allegations.

This new bureaucracy, with its own ‘czar’ and staff (can you hear the ‘jobs’ section of the orchestra swelling to a crescendo among the sex-offense advocates, bureaucrats, and ‘experts’?), will have complete, direct, and independent authority from the get-go, bypassing the command-structure of the military and actually independent of it. The actual military command structure will have almost zero discretion, since sexual-assault and SO cases will be taken almost completely out of their hands.

The closest historical analogy I can think of is the Soviet parallel command-structure of the Political Branch: there was in the Soviet military an entire second command structure, manned by ‘political officers’, that had authority to override military commanders’ orders and functions if the Political directorate decided that those purely military orders were not Correct and were not in conformity with the overall Soviet government and Party policies and philosophy. This was Lenin’s and Stalin’s way of making sure that the military remained for all practical purposes an arm of the Party-State.

Naturally, of course, one can also imagine that such ‘special sex offense’ courts (we have seen them tried here and there in American civilian criminal justice, although they are not as numerous as the special Domestic Violence courts) also function rather ominously close to the old English court of Star Chamber: a high court comprised completely of political creatures who were completely in the service of the Monarch, that would put its seal of approval on any verdict that the Monarch wanted to have happen.

The Congresswoman gives no thought or provision in her Bill to what the fiscal cost might be (or grow to become).

A few thoughts quickly come to mind.

The run-up and run-out of this Bill reflect clearly, in almost textbook fashion, the old and verrrry familiar gameplan that the SO community has seen since Day One: assorted ‘horror stories’ that are considered to be outrageous by legislative supporters, who then quickly introduce Bills to ‘solve’ the problem that they are immediately and thoroughly convinced exists.

All of the usual Questions that might arise in the mind of any prudent and reasonable dispassionate observer are side-tracked, ignored, or overrun and the matter immediately goes into the introduction-of-legislation phase.

The only thing missing is a wide media coverage, since matters military are usually more obscure to most reporters (unless they simply work off press-releases issued by – tah DAHHHH! – the advocates and the supportive and enabling legislators).

As I have always said, the simplest solution to this entire problem of ‘sexual assaults (however defined) in the military (to the extent that the problem actually exists) would be to have gender-separate units. In that single policy, the vast majority of these complaints and allegations would be avoided (with the exception – perhaps not insignificant to allied political advocacies – of same-sex sexual assault).

But this rather clear and commonsensical option is apparently not-Correct and utterly unacceptable to the radical-feminist advocacies now entrenched in the Beltway; you almost never hear this thought mentioned – let alone discussed seriously – by advocates, their legislative enablers, or the media (who may well be reading only advocacy-tainted press releases to do their ‘reporting’).

Thoughts of military efficiency and ‘operational efficiency’ have never been foremost in the minds of genderist-victimist agitators working to infiltrate the military realm. Indeed, from the get-go in the now so distant early 1990s the Correct mantra was that the USSR – that great and abiding Enemy – was gone and there were no other competitor-militaries on the planet, so ‘military efficiency’ could be sacrificed in this matter of ‘rights’.

(You can judge for yourself whether such a core presumption still holds nowadays, and whether one consequence (and not unforeseen) of all the genderist-victimist agitation and policy and legislation has been indeed a lethal contribution to undermining military operational competence. In the civilian realm, I would add, the equivalent of this presumption was that Productive-efficiency could be compromised and sacrificed in the economy in order to achieve the demands of the genderist-victimist Agenda … and again you can judge for yourself nowadays if that presumption has served the country and the economy well.)

And of course, all such agitation was spun as a matter of ‘rights’ (that trump everything) and of ‘outrages’ (ditto).

This new Bill also gives rise to the thought that if the military has now become saturated with female officers at all levels, then there must be more than a few of them who are not functioning Correctly, since this problem of un-avenged ‘sexual assaults’ in the military has grown worse instead of better even as the number and proportion of female military officers has grown.

It’s also possible that the military – which has to deal with ‘reality’ and ‘consequences’ in far more direct and immediate ways than in much of the civilian world – has simply been more robust in dismissing so much of the smoke-screen that so often hides the highly-dubious nature of so many non-stranger ‘sexual assault’ allegations generally.

The actual proposals contained in the Bill give clear evidence of what the advocacies’ Agenda is looking for.

First, the creation of a Sexual Assault Oversight and Response Office (and its necessary bureaucracy). This Office and its agents would take-over all sexual-assault allegations and complaints from the get-go. The military investigators would report to it, and not to the military chain of command.

Additionally, it would have the authority to re-assign any complainant-allegant to another unit to get him/her away from the alleged assaulter and to provide the now-customary comforts and consolations. This means that in addition to taking-over all ‘sexual assault’ (I will now use the abbreviation ‘SA’ for that term) cases from start to finish, it will also be able to interfere with manning and assignment policies.

If you think about it for a moment, it means that a unit-commander with X number of people assigned to the unit to carry out its functions will now suddenly have X-1, or if there are several simultaneous SA cases, X-2,3, or whatever number, and the other members of the unit will have to make up the increased work-load. This does not seem wise in light of current and probable military task-loads and work-loads, and it sets an awful precedent for interference in the military’s ability to conduct operations – let alone the consequences to morale among the remaining personnel who find themselves suddenly having to make up the work-load.

(All of this was obvious as early as the Gulf War in 1990-1991, when unit-commanders and ship-commanders were required to ship suddenly-pregnant females back to rear-areas or back to land; nor were they allowed to request replacements (such requests would provide demonstrable proof of the ill-consequences of mixed-gender units) and so ships and units had to go into an active war-zone minus a rather shockingly large number of assigned personnel. And all this was even before the USSR had collapsed.)

This new Czar-Office would also administer an SA ‘grievance’ hot-line for anybody in the military who chose to circumvent military structures and just cut to the chase.

It would also have the direct and immediate authority to “ensure that victims are given a place of safety and security, and a place where they can communicate their experiences”. You notice the old gambits immediately: the allegant is already a ‘victim’, and the therapeutic milieu of ‘safety and security’, and the vital old workhorse demand that the ‘victim’ can tell the vital ‘story’ without fear of doubt or contradiction or questioning. We have seen this – Lynne Henderson discussed this whole toxic mixing of the therapeutic and the criminal-investigative in her articles – in the push for a Victim Rights amendment.

Second, the Bill calls for the establishment of (yet another) Council at the Secretary-of-Defense level that would be comprised of at least two military judges and will include a Department of Justice representative who is ‘experienced’ in prosecuting SA/SO cases, another member “who has had experience advocating for the rights of those sexually assaulted in the military” and yet another member “who is experienced in working on civilian cases of sexual assault”. All to be appointed by the President.

As you can quickly see, this is basically the old genderist-vicitmist gambit, with all its dampdreams, now being run in the military setting.

It has the political benefit of enabling the President to keep a ‘base’ happy in a tough-election campaign. Ditto for the Democrats generally.

But it will be interesting how it plays out for the Republicans. Although they actually started the Victim bit in the Reagan years, they have also been leery of interfering with the military (although that has done little to stop the bipartisan political pandering to radical-feminism’s Agenda for the military).

But what this Bill is proposing is profoundly assaultive of the integrity of the military command structure. And especially at a time when the country is going to be relying on the military for a whole lot more of these ‘interventions in the (pick one or both: national or humanitarian) interest around the world that you would think this would give them pause.

Also, who knows if the Question might suddenly be given a chance for public exposure: to what extent has the admitted reduction in military competence and efficiency been the result of all this Agenda-pandering?

From a legal point of view, of course, we recently saw even the JAGs themselves expose the Congressional authorization (of hugely dubious legitimacy Constitutionally and legally) to switch the burden of proof onto the accused in military SA/SO cases (enacted as a short bit buried in the huge annual military budget bill in 2006).

Third, the Bill also calls for a Director of Military Prosecutions who would have the authority to order a court-martial regardless of what the local command decided. This creates an entirely second command structure for handling SA/SO cases in the military.

And as I mentioned in the Foster Post a couple of months ago, this now adds the frakkery of SO Mania Law to the already hugely-fraught realm of military justice.

This Directorate would also have the power to take cases out of the hands of the military and refer them to the Department of Justice. Now this is again a verrrrry significant demand because it directly breaks up the tight circularity and self-contained dynamic established in military-justice affairs with the erection of the Uniform Code of Military Justice (UCMJ) in 1950.

So while the military has in very large part gone along with the genderist Agenda foisted upon it by the government in the past 20 or so years, what is being demanded here is of an entirely different order of magnitude: the disassembling (‘deconstruction’?) of the military’s basic self-contained management of its operational affairs and its very command structure. This is a huge chunk for the SO Mania and the genderist-victimist Advocacies to try and bite off.

It reflects, I think, a certain desperation on the part of those Advocacy elements and I’ll talk more about that below.

Fourth, the Bill calls for the establishment of an SO database to be kept at the Pentagon for the purposes of the military tracking anybody who has come under SA/SO scrutiny; this demand would keep the database access limited to the military investigators and the SA/SO Czar and its assorted agents and bureaucrats.

BUT then the Bill goes on to add, fifth, that the Pentagon is to forward all the usual SO Registry information (now including biometrics and all the latest whizzbangs) to the Department of Justice “for inclusion in the National Sex Offender Registry”.

Now this is a ticking timebomb of no small proportions.

As I mentioned in my discussion of the military-justice system in the Foster Post,  the military has been rather careful not to invite too much attention to its system. There is good reason for this: the entire profound Constitutional Question remains very much conceptually open: does Congress even have the power to authorize the military (an arm of the Executive) to conduct criminal-process and trials of accusations for violations of any of the entire civilian Criminal Code?  

The military formally won this ‘authority’ in 1916 when it claimed that it would be impossible to send all the accused and witnesses to any serviceman’s alleged violation of civilian criminal law back to the States for a civilian criminal trial; hence the military (then going overseas for World War 1) was ‘authorized’ to use its already iffy justice system to prosecute Citizens (albeit servicemembers) for any criminal law violations. (See Addendum 2 below for further.)

This wall was breached – to the military’s and the JAGs’ apparent advantage and with their support – in the very first SO Mania laws: anyone convicted of a Sex Offense would be eligible for the State registry. A convictee by courtmartial would, upon release from the military and any imprisonment, have to go to the State in which he would reside and submit to its SO Registration process; later it was arranged that the military would send notice to the inmate’s designated State of residence so as to give that State’s Registration Board a heads-up.

Thus the military-justice system’s ‘convictions’ slyly insinuated themselves into the public mind as ‘criminal convictions’ (although the huge Constitutional Question remains very truly open, even though the Supreme Court has done its heroic bit to justify the whole thing).

But the responsibility for SO Registration remained, as it Constitutionally has to, with the States and it is conceivable that a State would examine the military record of trial and decide that the potential ex-serviceman registrant was “ineligible” – such are the annoyances of the Constitution in SO Mania matters.

Hence the so-called National SO Registry (named, as always, after a victim, Dru Sjodin) is actually only a federally-administered collection of all the State Registries.

But what this Bill wants to do is to give military convictions a formal authority to directly Register its SO convictees.

Which also then burdens the State with the responsibilities of tracking these individuals and also removes from the States their authority to determine for themselves who does (or perhaps does not) qualify for their Registries. And that opens up a whole universe of unsavory possibilities and Constitutional concerns. (Perhaps, for example, the federal government might volunteer to take the burden off the States by directly monitoring any of their citizens who bear a military ‘conviction’, and you can imagine what that further ominous possibilities that precedent might open up.)

This current Bill, H.R. 3435, piggybacks itself on a small rider stuffed into the annual military budget for 2009, sponsored by Mr. Hunter of California, at Section 563 (the current Bill, H.R.3435 has the wrong Section reference, claiming it to be Sec. 583 – which sorta says a lot about how much thought and care goes into crafting Bills nowadays). By amazing coincidence, Hunter also included the set-up of an in-house Pentagon SA/SO database (see here for the text of the 2009 military budget, and scroll down to Sec. 563).

A short, hasty, deeply-fraught and clearly ill-considered Bill this may be, but if it gets into law then it opens up vast and lethal possibilities.

But there are not only the Constitutional and fiscal problems with the Bill’s proposals.

The alliance initially entered into at the outset of the SO Mania Regime by the feminist-victimist advocacies and the military-justice command, with the approval of the usually ‘patriotic’, military-supportive law-and-order Right, is now being abrogated.

What, I ask myself, would drive the SO Mania types to make such a gambit?

My thought is that as the SO Mania is now starting to run out of steam – and its ‘aura’ is wearing off – in the civilian world, the SO Mania types are turning to the military as the marquis venue for their efforts to keep in business and keep the ball rolling.

If there is any cash left, the best chances of getting chunks of it are through things-military and through the military budget. This is also probably one of the best bets for continued employment for the many bureaucrats, attorneys, and advocates who are sensing that the States’ budgets (and even the federal monies to the States) are becoming quickly tapped out even as  in the civilian world the public is beginning to ask more questions or at least entertain more doubt about the SO Mania Regime than the advocacies would prefer.

A desperate federal government in an election year is probably the best site in time and space to set up shop. And the military budget is the largest remaining cash-cow in the federal Santa-sack.

But things get worse. And it shouldn’t be too much of a surprise to anybody familiar with the schemes and strategies of the SO Regime’s Maniacs.

Now passed by the Senate (having passed quickly through secret Committee sessions) is the huge annual military budget bill, S.1867. (See here for the text of the Bill and scroll down to Sec. 551 and following)

This Bill has garnered much national attention because of its Sections 1031 and 1032 that rather largely leave the door open for the President having the authority to declare anybody anywhere, US Citizen or not, in foreign war zones or here in the ‘homeland’, as a ‘terrorist’ and hence imprisonable by the military without trial or due process (or perhaps even Habeas rights).

But buried in “Subtitle E: Military Justice and Legal Matters Generally” is Section 551: “Reform of Offenses Relating to Rape, Sexual Assault, and Other Sexual Misconduct Under the Uniform Code of Military Justice”.

And what you have in Sec. 551 is a gambit familiar to the SO community from recent efforts to have the FBI redefine its annual reporting definition of ‘rape’ to include all forms of sexual assault of any severity (or lack of it) whatsoever. You may recall the recent Post here “As the Cream Runs Out” where I discussed current efforts to have the FBI change its reporting-definitions (but not the actual elements of the law in the Criminal Code).

What you now have in S.1867 in this Sec. 551 is precisely the changing of the elements of the rape charge in the UCMJ to include any and all incidents of any and all sexual mis-activity whatsoever. Everything is now subject to a Rape charge.* And any ‘sexual act’ act or contact with any part of the alleged victim’s body qualifies. Nor, if I read the thing correctly, is the victim’s testimony or even complaint necessary – anybody can bring the complaint or charge (including, no doubt, the bureaucrats and agents of the new Sex Directorate proposed in H. 3435).

Additionally – and I am here not going through the entire list of ‘reforms’ in this Section, although they include pretty much all of Speier’s menu in her short Bill H.R. 3435 – we proceed to “Subtitle F: Sexual Assault Prevention and Response”, where Sec. 564 cloaks communications between the complainant and the Sex Czar’s agents in ‘privilege’, meaning that the defense cannot have access to them in trying to defend the accused.

The only good news is that the whole thing is not retroactive, so – if you recall the Navy’s problems as outlined in the Foster Post – all of the past 20 years’ (at least) of military convictees are not going to be retroactively dragooned into this thing.

Thus what the SO Maniacs did not apparently consider possible to achieve in civilian criminal law, they have now managed to get done in military law.

(And we still have yet to see whether the Supreme Court will actually strike down as unconstitutional that 2006 provision that transfers the burden of guilt to the accused in military SO/SA cases; presently, it stands as part of military law.)

As I have often said, the (putatively ‘liberal’) National Nanny State and the (putatively ‘conservative’) National Security State have always had similar core interests. Which is why the SO Mania Regime so closely resembles and utilizes so many hallmark elements of totalitarian and police-state tactics and jurisprudence, and why the SO and Domestic Violence Mania Regime(s) have been able to garner such bipartisan support from Leftists and Rightists.

Well, that’s what I found in these two Bills (Speier’s has been sent to committee; but the Budget has passed the Senate and awaits House action; there is a rumor that the President may veto the provisions for military-imprisonment of Citizens by Presidential fiat, but that may be posturing – and even if a veto is imposed by the White House, it can be overridden. And I doubt anybody in the Beltway has even given serious thought to the monstrous corruptions and corrosions included in the SO sections).

All of this strikes me as very significant for SO matters but also for the country itself.

First, if this is erected into military law and allowed to stand, then since technically and formally military-law is still considered as valid ‘criminal law’, this entire plague-load can begin to become insinuated into civilian law. Either advocates can approach legislators in States waving the military-system as ‘federal precedent’ for ‘reforming’ State SO laws and jurispraxis, or former JAGs who are now District Attorneys can do that heavy lifting in front of State courts, or DOJ seminars for local law enforcement and prosecutors can start to suggest what a nice thing this ‘reform’ would be for civilian law and enforcement, or they can start teaching this additional load of drek in the law schools, or all of the above.

And the mainstream media will continue to read their official press releases and interview the ‘experts’ and bureaucrats who grant them ‘access’, and lap the whole thing up without blinking an eye.

In terms of the politics of advocacy, and of the SO and radical-feminist and victimist professional Advocacies in this particular matter, it seems to me that – as I said above – the SO Mania is now going to be taking up primary position in the military-justice system. And my Foster Post indicates just what a lethal double-whammy that entire dynamic will constitute for the civilian criminal justice system and for the Framing Vision itself, as embodied in the Constitution. **

In terms of the national political ‘alliances’ that have enabled the Mania Regime(s) from the get-go, there is much to consider. The shift to the military justice-arena, itself hugely fraught and dubiously legitimate, now has reached a point where the Advocacies must turn against the military command structure itself.

This is not something I can see the military accepting, even though the entire present high-command cohort has made itself hospitable to so many prior Demands from many Agendas. The reason why fire-trucks come when called, quickly and efficiently and competently, is that the Fire Department is a paramilitary organization (to some extent) and doesn’t accept the subjective and personal whims of this or that fireman when ordering an emergency response. There is a command structure based on a command philosophy which itself is grounded in the stern and urgent realities of the type of disasters and emergencies for which the Fire Department was created in the first place.

Ditto, and even more so, in the matter of the military command structure.

And, of course, and especially given the deep mushiness of the criteria by which one must try to decide if any offense occurred at all (and some schools of ‘thought’ insist that if you don’t immediately and fully accept the allegant’s ‘story’ then you are simply ‘re-victimizing the victim’), then the ‘moral hazard’ of the whole thing becomes clear: anybody who doesn’t like her present assignment can simply make an allegation and instantly qualify for speedy re-assignment somewhere else (and God help the commanding officer who denies the request). The possibilities for abuse of this process are not at all small. Ditto the consequences for military operational readiness and competence as units and commanders suddenly find themselves short-handed.

This Agenda and its Demands strike at the heart of military competence and readiness, and whatever validity there might ever have been to the early 1990s advocacy claims that the US in the post-USSR era could afford to sacrifice operational readiness and competence (I recall one supporter putting the acceptable figure at 30 percent, however you figure that), that validity no longer exists. And, looking back at 1991 or so, will most likely never exist again.

Just how far the military will accede to all this is a very large Question indeed.

It will depend to some great extent on just how willing the Republicans are to support such a lethally dangerous precedent (and as everyone knows, this sort of thing will only intensify if its initial Demands are met).  Genuine and actual military competence can only become more urgent in the future, and clearly it will be impossible to conduct operations if commanders are deprived of authority and even of reliable knowledge of the manning-levels (and morale) of their units and ships.

I am no fan of military-justice, especially as it has evolved since 1950.

So this abrogation of the alliance between military command and military justice on the one side, and of the Regime Maniacs on the other side, poses for me the type of problem, like the war between Iran and Iraq, that prompted Henry Kissinger to say in an unguarded moment: “It’s a war you’d like to see both sides lose”.

But in a Larger sense, there is no doubt in my mind that this new development in Mania strategy bodes to create even more damage to vital national interests, and to the integrity and legitimacy of the Law, and to the very adherence – in any real sense – of this nation to its Framing Vision.

And it is nothing short of the most repugnantly ruthless cynicism, I would say, to claim that it is all necessary to ‘protect the troops’: the vast (male) majority of the troops are now to be placed under a threat as omnipresent as any but the most overt hostile enemy action, and under a threat that resembles – alas – nothing so much as the threat posed to any Soviet-era troops and the Soviet military by the presence of those Political Officers whose job was not to win wars or conduct efficient operations but merely to ensure that Political Correctness was enforced in the service of the Regime.

So much remains to be done.

NOTES

*As best I can make out – and it’s like trying to work through old Soviet ‘philosophical’ tomes – Catharine MacKinnon, noted feminist ‘thinker’ for whom ‘radical’ feminism is the only true feminism, was working toward this since the early 1970s. She encapsulated the idea in her 1989 book “Toward a Feminist Theory of the State”, implying that rape-by-penetration is a dumb definition because it views rape only from the male’s point of view. From the female point of view, one doesn’t have to be penetrated to feel ‘raped’. You see where this can go and is going if erected as an element of criminal law.

**In this regard, I would like to suggest that people not look at the Constitution as a literary ‘text’, whereby – according to the dictates of postmodern literary Theory – the intentions of the author of a piece of fiction are not to be considered more important than the subjective reactions and ‘feelings’ of a reader.

Rather, I would propose that the Constitution is not accurately to be treated as a ‘text’ of fiction, but as an Owner’s Manual or Maintenance and User’s Manual.

Which would mean that you would no longer be so cavalier with how the Constitution is ‘interpreted’. Indeed, who would fly an airline whose maintenance crews treated or were required to treat the manufacturer’s instructions and manuals as ‘texts’, with which the individual aircraft mechanic may or may not choose to agree?

 

ADDENDUM

I am putting a few somewhat more specific political thoughts down here.

Clearly the Dems are now reaping the whirlwind. At this point the sitting political class has either drunk the Kool-Aid or are now trapped – especially in a difficult election year – in a lethal embrace with their most radical ‘bases’. And those bases themselves are now making increasingly strident and perhaps desperate demands.

Radical feminism (which – alas – has become synonymous with ‘feminism’) and victimism are now themselves agitated by the increasing decline in the government pork supply which has fueled their Great Day At The Beach for decades, and consequently are both a) urgently in need of tangible re-assurance and b) eager to lock down their ‘successes’ or at least keep their gravy train going on whatever track remains available.

And for all of them, the pols must see the dual ‘solution’ of intensifying i) the SO (and now SA)  Mania ii) in the military as a simple and most efficient response.

This assessment, of course, reflects the bankruptcy of ‘deal politics’ in the Age of Identity in this country: the Deal is judged not by its contribution to the commonweal nor even in relation to any integrity, coherence, or efficacy in relation to the Framing Vision, nor even in terms of how a decades-sized load of such ‘deals’ might cumulatively crush the increasing fragile structure of the pols’ own legitimacy (which is an element that’s no longer ‘off the table’, as the Beltway players like to say).

These ‘solutions’ rather quickly and virulently reveal the baaaad consequences that potentially existed within them from the get-go. Leading to yet another round of witless pandering and grossly irresponsible Legislating.

Do these people not worry about the common-weal, or at least the problem of their own legitimacy – integrity is no doubt A Bridge Too Far – at all?

This extension of the SO/SA Mania not only into the military but against the very military operation command structure itself simply spreads one very lethally bad plan into a vital area already deranged by a prior lethally bad plan; the SO/SA Mania Regime on top of the Stalinist-inspired UCMJ core dynamics of 1950.

The reader somewhat given to the history of ideas might note the eerie and ironic symmetry: the Gramscian-inspired Leninist Mania ‘advocacies’ are assaulting the Stalinist-inspired UCMJ … as the genuine elements of American law and politics embodied in the Framing Vision, and the productive elements of the American economy, all shudder and slow and fill, compartment by compartment, reflecting with intensifying vividness the profoundly lethal consequences of the Beltway pols’ eagerly importing multiaxial Maoist “cultural revolution” and the Gramscian undermining of the “hegemonic culture” forty Biblical years ago. Funny how the conceptual night moves.

And so America becomes the last stage for the whackulent, virulent hashing out of Marxism-Leninism, and – in a final and perhaps fatal indignity (courtesy of the Beltway pols, Rightist as well as Leftist) – its enablers and advocates are now scrumming each other for what little remains to be grabbed, secure in their own delusion that it has all been ‘liberation’ and ‘reform’ and that they are still major Shapers and Players on the cutting edge of History and Progress.  

And this comes to resemble not so much the final self-dissolution of the USSR, which blood-soaked monster actually went out with a world-historical dignity and order in the service of a long-hoped-for Possible Future. Rather, I think that the Beltway in its declining agitations is (to borrow a trope from the shocked Dowager Queen during the British Succession Crisis of 1937), coming to resemble “Roumania”.

Forty Biblical years of the most dangerous political toying with the demons of Revolution and ‘cultural de-legitimization’ and Totalitarian Praxis will now play out as a cash-status-and-power-addled official scrum on the National Lawn of some Balkan or banana republic from the bad old days. (And allow me to suggest that you give yourself this Christmas present early: watch the Marx Brothers 1933 masterpiece “Duck Soup”.)

Please forgive the injection of my political opinions. You can see why I put them into an Addendum. But so much remains to be done.

ADDENDUM 2

Let me give you a little bit of an idea of what it’s like trying to figure out the basis of the military justification for prosecuting the entire criminal code (and not just military-type offenses such as sleeping at your post, disrespect to senior authority or refusal to follow lawful orders, and so forth).

I had occasion to check “West’s Encyclopedia of American Law” (2^nd Edition, 2005), put out by the marquis legal reference firm, West’s.

There (vol. 7, pp.56-7) this putatively authoritative reference work states that the 1866 Supreme Court case Ex Parte Milligan (text of Decision here) says that the Supreme Court there asserted and allowed that “the Constitution allows Congress to write rules and regulations to punish any member of the military when he or she commits a crime, in time of war or peace, in any location”.

Pass over in silence the fact that I doubt an 1866 document is going to refer to military personnel as belonging to either gender.

What piqued my concern was that a) I did not recall Milligan saying such a thing and b) what West’s writer says Milligan says is precisely what the post-1950 UCMJ supporters would very much like people to think it says.

So I looked at the text of Milligan again. Sure enough, at number 10 Milligan states that “Cases arising in the land or naval forces, or in the militia in time of war or public danger, are excepted from the necessity of presentment or indictment by a grand jury, and the right of trial by jury in such cases is subject to the same exception.” 

So IF you are willing to grant that making an exception to the Vth Amendment requirement for grand jury indictment and a trial by jury effectively authorizes the military prosecuting the entire civilian Criminal Code, then Milligan supports that.

Which is a big IF and an even bigger leap of inference, especially when you realize that this entire effort at ‘justification’ thus implies that the Congressional right to “make Rules for the Government and Regulation of the land and naval Forces” (Article I, Sec. 8) – that is to say, enforcing the old Articles of War and saying what color the uniforms should be and such – somehow was meant by the Framers to nullify the very careful requirements for criminal trials put down in the Vth Amendment, in the Bill of Rights.

So I checked the text of the Constitution itself.

And that text says: : “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

I have italicized the relevant bit there. But as you read the entire Amendment you see here what powerful protections the Framers clearly insisted upon providing. It is sketchy and dodgy at best to overturn the Vth Amendment merely on the huge leap of inference in getting from the right to say what color the uniforms will be to the right to dispense with the Amendment’s requirements and carry out ‘criminal process’ through military court, for non-military offenses.

But there’s more. You will notice that Milligan actually misquotes the Constitution. In the text of the Constitution there is an utterly vital comma placed just after “militia”, which serves to say that except “in time of War or public danger” both the land and naval forces and the Militia must hew to the Vth Amendment’s safeguards.

In Milligan – and West’s article curiously does not quote the text of the Constitution itself, but only the (erroneous) text of Milligan – the utterly vital comma is taken away, making the Vth Amendment’s requirements only applicable to the Militia. Which, as I said, is not what the actual text of the Constitution says.

What can the decent Citizen make of this oddity? That in 1866 there was a mistake in transcription? Surely it was only a single comma and mistakes do happen. But just as surely, the Justices must have reviewed the final draft of the Decision before signing it, and somebody would have had to notice it.

So that leaves us with the possibility that the Supreme Court in 1866 was already trying to weaken the Bill of Rights in this matter of military justice.

And here we are today with the military-justice system (with its Stalinist inspiration) claiming, as West’s writer faithfully parrots, that as far back as 1866 the Supreme Court had somehow approved its entire post-1950 gameplan.

And all of this only becomes more vital and relevant when you realize that Sections 1031 and 1032 of the currently proposed military budget bill effectively propose to do away with the Posse Comitatus Act of 1878 which prohibited the military from engaging in domestic civilian law enforcement.

And for the SO community, the possibilies should be even more acute.

UPDATE

An article from December 13 reports that there is notable objection to the military-justice SO/SA provisions that were quietly snuck into the proposed military budget Bill.

An article from November 28 actually takes a skeptical look at Speier’s gambit.