As I have said, you get a chance to see just how even back then there were valid and well-expressed concerns about the consequences of a victim-oriented ‘reform’ of the criminal justice system. And you now have the benefit of two decades or a quarter-century of ‘reforms’ to see just how things have played out. (Not at all well, in my opinion.)
He includes an excellent 1985 essay by the legal scholar Lynne M. Henderson entitled “The Wrongs of Victim Rights”. The piece takes up 92 pages of the book, but only 43 pages are the text of the article; the rest are notes and references (she is nothing if not thorough in grounding her comments and ideas in case and statutory law as well as making reference to various legal thinkers and contemporary events).
She begins (p.101) with the sources of victim-rights (hereinafter “V-R”) in Western legal history.
She goes back to the beginning of Western Law’s long climb out of the Dark Ages following the collapse of the Roman empire. ‘Justice’ was a matter of clans, who would personally and violently avenge in an eye-for-an-eye sort of way any transgression (real or perceived) against one of their members. ‘Criminal justice’ depended thus on your extended kinfolk, who would avenge you by inflicting vengeance on whomever was settled-upon as being the perpetrator.
Blood feuds were often the result.
But with the recovery of some amount of social order through the development of early feudal lords and sovereignties, the ‘lord’ or king (still a long way from the ‘Sovereign’ of the 1500s and subsequently; don’t think Henry VIII or Louis XIV yet) realized that all of this violence was distracting and draining social energies and damaging social order. So instead, the clan violence was reduced and monetary compensation was increasingly introduced: such and such ‘tort’ required the payment of such and such an amount of money or other form of wealth to the victim or the victim’s kin. (Think of the current HBO series “Boardwalk Empire”, where the character of Arnold Rothstein sets up as a mediator between various violent and unruly mobster bosses, seeking to reduce violence because “it’s bad for business”; instead “arrangements” are agreed upon mutually.)
If the crime was so serious as to break what was coming to be considered as “the Crown’s Peace”, payment would be made to the Crown which – in a real sense – considered itself the victim. This reflected the reality that many ‘crimes’ did not involve direct violence to a specific person, but rather harmed the well-being of a group as a whole. You could poach wildlife from a specific royal preserve and the Monarch would literally be the victim of your predations. Or you could cut timber from forests specifically set aside to provide vital wood for the ships of the navy – again, a crime against large social and national interests, but not involving any specific individual as personal victim.
You see here the beginning of a development of ‘social interest’, as well as ‘royal’ interest (too early just yet to call it a ‘government interest’), where a crime could have far-reaching ill effects without involving any personal violence to a specific victim at all.
However, and certainly in England, individuals who considered themselves victims could also take advantage of a developing body of ‘tort’ law, where you could have a court conduct a trial to see if you could, through royal or ‘government’ authority, compel a tort-feasor to pay you compensation. This was not criminal law as we know it, since the police power of the Sovereign was not deployed to punish or imprison the accused. Instead it was the precursor of what we now know as ‘suing’ somebody.
As time went on, royal authority came to establish courts and a corpus of laws and even some form of police authority (beyond the Medieval English ‘sheriffs’ to include – by the late 1700s and early 1800s – the first police departments as we would recognize them today).
Simultaneously, and this was true of English law especially, efforts were being made to reduce the element of vehement passion and ‘feeling’ that used to characterize the earlier eras of vengeance and clan-kin justice. Instead, the emphasis – also evident in the increasing legal abandonment of witchcraft jurisprudence – shifted to a requirement for accurate evidence that rationally connected the accused to the commission of a specific criminal act (actus reus) and also of a specific and deliberate intent on the part of the accused to commit the criminal act (mens rea).
And at the same time, again especially in English law reflecting the 13th-century Magna Carta, there was an expanding effort to protect the individual accused from the awesome power of the developing monarchical government; increasingly, this protection was afforded not simply to the barons of King John’s era, but to larger groups of citizens and subjects.
As all this coalesced, there developed a decreasing emphasis on the individual victim. In its place, the focus was on the Law and the determination by the court as to whether the accused had indeed committed the alleged crime. The great drama or struggle or agon was between the government proving that the accused had done so and the accused making the case that s/he had not done so.
As the 18th-century progressed, Enlightenment principles of reason, scientific inquiry relying on evidence and proof … all of these became incorporated into the process. Rational, objective investigation, detached from the passionate emotional assertions of one side and the other (accuser and accused) became the great object and hallmark of modern Law.
The process was designed precisely to be impersonal, objective, and unemotionally ‘detached’ precisely to prevent emotions from swamping facts and accurate assessment of the real events that were the subject of the court’s inquiry. (In this regard, you may want to re-read my Post on the dangerously regressive precedents set in the Adolf Eichmann trial of 1961, see here.) Claims would have to be justified not simply by assertions or ‘stories’ but by facts that could withstand evidentiary scrutiny.
So, Henderson says (p.102), “the fact that the role of the victim has declined over time does not necessarily justify” an increased formal role for victims in criminal trials today. The victim can always resort to civil lawsuit, and the dangers of re-introducing passion and emotion into criminal legal process are far too great.
I would add that the entire concept of American law, grounded in the tradition of Western and English law as outlined above, relies upon all of that careful and dispassionate rational inquiry into the discovery and sifting of provable evidence. ‘Story’ veers perilously close to the ‘spectral evidence’ of the witchcraft-trial days, when an accuser would relate a personal experience or vision that nobody else could see or observe or experience, and expect that the court would without question accept such assertions as proof-positive that the accused was indeed a practitioner of witchcraft.
This hard-won high ground became the ground-stay of the classical Liberal (not to be confused with today’s concept of ‘liberal’) tradition of the modern West: the individual, endowed with rights and possessed of remarkable capabilities and potentials, was to be protected from the arbitrary invasive encroachments of increasingly well-organized and by nature incorrigibly intrusive governments.
But in the America of the early 20th century Progressives saw an increasingly complex mass society, urban and chock full of immigrants from cultures other than the north-western European (and English) traditions. Looking at society as something of a great and complex machine, they looked for ways to use Law to improve society generally, being not so much concerned with the individual crime as with the overall ‘social interests’ of forming these new masses of urban citizens into a more enlightened, right-living, and law-abiding society.
The criminal law started to take on an additional objective: no longer simply to adjudge individual acts of individual accused citizens, but rather to form citizens in a common social tradition that those masses of foreign immigrant citizens did not share, coming as they did from any different countries and cultures.
At the same time, more traditional (you might say ‘conservative’, but be careful) elements in society were worried that there was simply too much crime in the urban areas now. And that the solution was more vigorous use of the increasingly organized police forces to enforce the laws and keep the crime down.
After WW2, there was a general revulsion in Western countries to the shocking extremes to which dictatorial governments had taken to oppressing and assaulting their citizenries, evidenced in the societies of Imperial Japan, Nazi German, and Fascist Italy, as well as in the Soviet Union and the countries it took over or influenced as the Iron Curtain descended across Eastern and Central and Southeastern (Balkan) Europe and China. The accused citizen needed much protection.
Psychology had also developed – at least as a profession – during the war, and sought to rehabilitate offenders.
And then came the complexities of the civil-rights era. In the Jim Crow South, Americans were faced with vividly demonstrated (TV cameras came into use in the 1950s, giving news broadcasts a stunning visual component) evidence that if a culture or sub-culture somehow came to incorporate essentially wrong and oppressive traditions (the slave-holding and later anti-black traditions of Southern culture), then the forces of law-and-order themselves, police and courts, would ‘naturally’ work to enforce those noxious elements that now had the force of cultural and societal tradition.
The ‘liberal’ take on this – still recognizably Liberal in the classical sense – was that the federal government had the responsibility to require and forcibly enforce such changes in those traditions as were required to bring the errant Jim Crow culture and traditions into conformity with the American ideal and Vision.
But then came a second, Northern and urban phase to the civil-rights movement, where ‘race’ was inextricably intertwined with the older ‘urban crime’ problem that had existed independently of race. Worse, in this second phase of the civil-rights movement, such movements as the Black Power movement actually demanded ‘revolution’ and violent enforcement of black rights asserted against ‘white’ law and against white police.
This ignited conservative concerns that keyed-on the frightening combination of urban-crime and even ‘revolution’ as those realities took shape under the generally ‘liberal’ aura of racial justice and black liberation.
The Left or liberals began to lean toward ‘revolution’ as a way of achieving ‘justice’, and the Right or conservatives began to lean toward law-and-order as a way of preserving the essential structural coherence of society.
Henderson joins other astute commentators in noting the distinctly Rightist or ‘conservative’ swing toward law-and-order in the earliest support for V-R. The new-conservatives, I would add, were not acting in the tradition of Western Law’s concern to protect the accused: rather, they were seeking a greatly expanded government police power to prevent both crime and ‘revolution’.
While the distinctly Leftist or ‘liberal’ elements were swinging toward an expansion of the massive federal government intervention against the Jim Crow South and applying such greatly expanded government police power to the entire country and the American culture generally.
You notice that both sides had a bottom-line of a greatly expanded government police power. The Right to preserve and enforce law-and-order, the Left to achieve ‘justice’(and impose its ideas about what that meant).
In that sense, the civil-rights era, especially in its verrrrry distinctive Northern or second phase, the phase not of Martin Luther King but of Black Power, administered what I think was an overwhelming shock to the American system. Suddenly, not only ‘race’ but ‘revolution’ (backed up by armed, possibly Vietnam-experienced, folks spouting Mao and Lenin and Marx) were major active fault-lines in the nation’s cultural geology.
The Right was terrifically shocked; the Left found itself having to endorse stuff wayyyy beyond the happy-days of King’s first, Southern phase of the civil-rights movement.
But the civil-rights era had also profoundly shocked the politicians. The Democrats had been man-handled by LBJ into supporting the Civil Rights Act of 1964 and the Voting Rights Act of 1965. They did so with good intentions largely, although hugely nervous that they would be breaking up the New Deal political alliance of Northern immigrant cities and Southern Jim Crow.
This was going to be a huge problem to work through.
But then, within 2 weeks of the passage of the Voting Rights Act in early July, 1965, the largely black urban Watts neighborhood in Los Angeles exploded in a days-long orgy of rioting, burning, and looting.
The Democrats, previously in shock, now went into political de-fib. They had put all of their ‘liberal’ creds into the civil-rights movement, against ‘conservatives’ who were nervous as a matter of prudent principle about a) messing around in deep ways with any traditional culture no matter what its ‘shortcomings’ and b) getting the federal government involved in terra-forming the national culture, which was a huge leap beyond the original boundarying nature of the Framing Vision.
The liberals called for more social-justice; the conservatives called for more ‘law and order’.
The Democrats suddenly realized that the black ‘allies’ they had hoped would now become deeply loyal to the Party (and so replace the angry, departed-for-the-Republicans Southerners) were somehow turning against them, and in a brutally violent and public way. Suddenly the new ‘demographic’ had gone and turned on them, even demanding Black Power and in many cases more ‘revolution’.
The Dems became desperate as they saw their political viability go up in the smoke of Watts and – before long – a hundred other cities.
And then, as if this weren’t enough on the national plate (and nobody was worrying about the monstrous but still new problem of American economic primacy facing the competition of now-recovering industrial economies of nations wrecked by WW2 and newly-emergent ‘Third World’ nations), radical feminism quickly took over a developing women’s movement and loudly declared and demanded government war on ‘patriarchy’, the male gaze-and-grab, and men generally. (And you can see where this tour of recent history suddenly becomes relevant to the SO community.)
But whereas the Black Power movement actually seemed to be talking about armed revolution, the radical feminists saw their chance to get the Democrats – desperate for fresh ‘demographics’ – to enable a legal revolution and war against culture, ‘traditional Law’, and men generally. And the Dems were desperate enough to go along with it, hoping to use the power of the government to help matters along and clear a path for their new client-demographic and its self-proclaimed advocacies.
The Republicans swept in under Nixon and law-and-order was one of the battle-cries of the election, now code not only for actual law-and-order against violent revolution and the increasing crime that accompanied a growing Boomer ‘anti-establishment’ culture, but also code for putting the brakes on the whole anti-establishment and anti-American-culture dynamic that seemed to be picking up speed at a dizzying, alarming rate.
Thus, through the 1970s, the Democrats – utterly shocked by the national electorate’s 49-1 rejection of their new ‘liberal rights’ agenda of 1972 – continued to expand government power in the service of their new ‘demographics’ while the Republicans continued to seek more government power to deploy against ‘crime’ and to enforce law-and-order.
Building on the still-powerful national experience of seeing freedom-riders and Southern blacks beaten and hosed by Southern police in the first phase of the civil-rights movement, the Democrats had hit upon the strategy of drumming up quick and visceral public support by publicizing the stories and personal experiences of persons thus assaulted by the police agencies. Such a ‘personal’ approach worked, creating powerful empathy in public opinion. (Again, this embodied some of the most dangerously regressive elements deployed in the Eichmann trial of 1961.)
Against that the government – DA’s and police – could only present itself as ‘the establishment’ … and nobody, it seemed, empathized with a thing like that.
The government – especially in the Republican and ‘conservative’ view (which wasn’t really truly conservative at all, as we have seen) – needed its own tearful or outraged ‘persons’ that it could put before public opinion to counter the Democrats, who seemed to be ‘coddling lawbreakers’ by ‘hiding behind the Constitution and due process’. (Again, you see here where things are starting to go.)
If the Right were going to be able to deploy the police power of the government, and enlarge it, then it needed to do so in a ‘kinder gentler’ way; it needed its own tearful or outraged individuals for the cameras.
And thus Reagan comes in and in 1982 we have the Presidential Task Force on the Victims of Crime. It is in this historical moment that – as Henderson and others rightly observe – the ‘victim’ suddenly assumes significance again (after so many centuries) in Western and American legal matters.
It is the beginning of a torturously contorted cultural and political melee.
It begins with the so-called ‘conservative’ Right seeking to reduce the rights of the accused (enshrined in the Framing Vision and the Constitution and the Bill of Rights) and enhancing the greatly expanded capabilities of the Sovereign police power … by masking the whole thing behind the tearful and outraged Victim of this or that violent crime (thus, as Fattah acutely noted, distracting the country from white-collar, corporate, and even political crime – verrrry neat).
The Democrats had already been using the expanded Sovereign power of police and regulation to terra-form the national culture (in the name of liberation and ‘rights’ of the individual and of assorted demographically useful groups).
They also had one hugely important demographic – the radical feminists (claiming to represent all women) – who wanted the police power deployed specifically against males and sex.
And the radical-feminist-inspired adoption of old European revolutionary agitprop stratagems – such as placing tearful and terrified or outraged victims in front of cameras – had already been working for them here.
The Republican-conservative Right now raised up the Victim of Violent Crime to justify its hugely-expanding War On Crime.
This was going to guarantee a shock to the nation conceptually, because – as Henderson will point out – so many of the elements demanded by the Victimist movement actually consist of a regression away from and back from the Law as conceived by the Framing Vision and the Constitution, and throws things back to the days of impassioned and unsupported claims for vengeance.
Worse, the stratagem wound up re-awakening the ancient demon of Demonization: the violent offender (no longer the Accused) was now caught, was incorrigible and evil and could not be rehabilitated, and could only be locked away as soon as possible – and anything that got in the way (including the Framing Vision and the Constitution and the Bill of Rights) was simply to be swept away as ‘obstructive’. (And this was the so-called conservatives talking!)
California, starting with Proposition 8 in 1982, began to dismantle many of the protections for the accused which were the hallmark of the Burger and Warren Court years; protections reinforced in the light of what the country had seen happen in WW2 when governments go after their own citizens without boundary or principle).
I think you could say that there just too many crimes for anybody’s Constitutional sensibilities to handle: the 1960s had seen the widespread and profound weakening of parental and societal authority, of familial structure, and indeed the whole Boomer approach to law and structure was that it was just ‘old, bourgeois’ stuff that no really ‘authentic’ person (usually imagined as being under the age of 30) could allow to interfere with Groove-full life.
Worse, under the influence of numerous European thinkers who had had a bellyful of fascism and Nazism, many advocates here who were eager to justify their ongoing assaults and deconstructions of American society were insisting that American culture was as ‘oppressive’ as anything in the WW2 era and that ‘resistance’ to an oppressor’s laws was not a crime but an act of’ empowering liberation’ and so forth and so on.
So the Right wanted more police power (to turn against the ‘criminals’) and the Left wanted more police power (to turn against the ‘oppressors’).
V-R advocates demanded ‘reforms’ (which were actually regressions to ancient, primitive practice the West had finally outgrown) that reduced the presumption of innocence, increased the burden of proof on the accused while lessening the burden of proof on the accuser’s ‘story’, limited the accused’s ability to confront and cross-examine his (so often ‘his) accuser, and skewed the objectivity and dispassionate detachment of the judicial and jury elements by insisting on introducing tearfully or vengefully impassioned victim-statements into the trial process itself.
It was all, narrowly speaking, a prosecutor’s dream.
And while there was increasing crime among whites, the crime rates in the urban black ‘inner cities’ were skyrocketing. So there was now a race-element to the whole developing brew: a War On Crime could actually be reliably worked out so as to be a repressive or re-repressive war on blacks. And the Dems were not about to let that happen.
But then came Gender.
Gender is a funny thing in many of these otherwise acute articles about V-R’s consequences. It is almost never mentioned. (Nor, for that matter, are sex-offense cases or Mania Regime laws in general.) My thought is that no matter how well-intentioned and thorough a professor or organizationally-connected article writer wants to be, you just can’t raise the Gender matter without risking serious blowback (or ‘backlash’) from the now-entrenched radical-feminist interests.
Because if you’re of a chemistry or engineering turn of mind, you might notice that the only thing keeping the Dems from fully equaling the Republicans in all of this ‘increased police power’ was that the matter most essential to a useful Gender war was that ‘sex’ generally was not considered as a violent crime the way street-crimes of murder, robbery, armed assault and actual stranger-rape were.
But that was precisely where (radical) ‘feminist law’ and its ‘reform’s came in. Its objective was – and indeed almost had to be – to get ‘sex’ accepted as the worst crime of the worst. (You recall from recent Posts the intensifying effort to get any and all ‘sexual violence’ accepted as rape and as utterly destructive of the psychic and emotional well-being of any ‘victim’.) And of the ‘home’ as not being the ‘hearth’ of the Citizen to be protected at all costs from the intrusions of government authority, but rather as the greatest on-going crime scene in American history – thus demanding the most ‘robust’ intrusions of the Sovereign police power.
By combining the originally Rightist-‘conservative’ Victim with the(mostly female) victim of sex, you could in a single stroke blend the abiding objectives of the Republican Right and the Democratic Left, of the ‘conservatives’ and the ‘liberals’. (And neither of those two huge political elements and Parties were interested in any boundary to the government or Sovereign police power.)
Thus while Republicans in the Reagan era originally ‘valorized’ the Victim, it was the Democrats a few years later under Clinton who introduced the initial Violence Against Women Act (VAWA) and the Domestic-Violence initiatives. (Under the same Joe Biden, then Senator, now Vice-President, joined as time went on by such Republican legislators as Sensenbrenner of Wisconsin, among others.)
And thus quickly followed the SO Mania Regime, based on highly-publicized child-victims (who, rightly, could in no way be suspected of being ‘complicit’ in their own sexual victimization) who were the refinement of the refinement of the Innocent Victim whose case could be put by his/her surviving relatives before the cameras.
And here we are.
I will continue the review of Henderson’s article in my next Post. I hope this look at recent national history gives you a sense of how, politically and culturally, the SO Mania Regime developed the quick-burning, unexamined, yet seemingly unstoppable impetus for the Regime, the political support for which has been for so long so immune to rational and evidence-based refutation of its basic assumptions and to any serious considerations of the increasingly-obvious dangerous consequences to American Law, law enforcement, judicial practice, legislative integrity, and to actual respect for the Framing and Constitutional Vision.
So much remains to be done. If the American polity is to survive as worthy of respect among both its Citizens and its elected and sworn guardians.
NOTES
**St. Martin’s Press. ISBN 0-312-07551-0.
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