Tuesday, October 25, 2011
TOWARDS A CRITICAL VICTIMOLOGY 3
I continue looking at Ezzat Fattah’s 1992 collection of essays entitled “Towards A Critical Victimology”.
I am specifically focusing on Lynne M. Henderson’s acute and comprehensively noted 1985 article “The Wrongs of Victims’ Rights”, which constitutes its own chapter in Fattah’s book.
We left off in the immediately prior Post with both the ‘conservative’ Right and the ‘liberal’ Left seeking to engorge the Sovereign police power, and actively seeking to weaken both theConstitutional protections for the accused AND the profoundly vital principles underlying the Framing Vision that underlies the Constitutional approach to Citizen rights against the arbitrary deployment of that police power.
Henderson notes (p.103) that the original Right-Republican valorization of Victim-Rights (V-R) made a number of assumptions: 1) that the focus was to be on individual-against-individual violent crime (often referred to as ‘street crime’); 2) that committing these crimes was a matter of individual choice and was ‘evil’; 3) that legal ‘reforms’ had to be introduced in order to enhance the “efficiency of the process” in the matter of adjudging these increasing numbers of criminal cases; 4) that in order to achieve more “efficiency” criminal courts should resort to a more “summary” type of process; 5) that clearing away this crime would be a “guarantor of social freedom”.
I would offer a few thoughts on those numbered points.
Point (1) sidesteps huge swaths of ‘victimless’ crime such as white-collar, financial, and even political crime. It also introduces this ‘victimless’ trope; as if white-collar crime doesn’t victimize huge swaths of the population (for example, the financial crimes that have led – through the 2008 meltdown – to the nation’s frightening fiscal mess). But the large ‘victimless’ crimes do not produce a telegenic individual ‘Victim’ who can be placed before the cameras to whip up public opinion in support of the ominously dangerous ‘reforms’ which are actually regressions against the rights of the accused Citizen that are enshrined in the Framing Vision and the Constitution.
Note also that at this juncture “violent street crime” is not something that the Left-‘liberal’ Democrats can be comfortable with: there is great danger that the focus, intentionally or not, will be on urban black communities (a now-embraced Democratic political ‘demographic’).
And that this “violent street crime” did not originally envision ‘sex’ crimes, nor did the ‘street’ venue allow for any ‘sex’ crime focus except for the clear event of ‘stranger rape’.
More deeply, this entire ‘crime’ focus threatened to expose for public deliberation the entire ‘freedom’ trope valorized by the Dems’ embrace of pretty much all of the Boomer-youthy 1960s ‘revolution’ against conformity, social custom, tradition, and anything perceived to be ‘old’.
Point (2) re-introduces into major political play the long-simmering and unsolved question of the sources or causes of crime (considered not from the point of view of religion as ‘sin’ but sociologically speaking). Is crime to be considered primarily as a willful and deliberate (and ‘sinful’) choice by the individual regardless of his/her social circumstances, or is crime to be considered primarily as being ‘caused’ by social circumstances (poverty, ‘oppression’) which pretty much force the individual into crime such that the perpetrator is him/herself actually a ‘victim’ of those forces and circumstances?
The Right is leaning toward deliberate-choice, the Left (echoing vaguely the civil-rights era experience) is leaning toward ‘victim of oppressive social circumstances and forces’.
The Right is also including “evil”: the individual’s deliberate choice to commit a crime demonstrates deliberate embrace of evil – the evil potential in oneself and the ‘evil’ that will result from committing a crime and weakening society. But this position also implicitly condemns the whole 1960s-type ‘freedom from conformity and society’ dynamic that was by the 1970s fueling a general social disregard for conventions, conformity, tradition, and even laws.
Point (3) commits the so-called ‘conservative’ Right to weakening the Constitution in order to more quickly and ‘efficiently’ re-assert not only the government’s but even society’s and American culture’s traditions and laws against the Boomer ‘freedom-from’ revolutions. Since the ‘accused’ here is envisioned as either anti-conformist and wild Boomer youth or black urban street-criminals, the Right is now going to slide far too easily toward an anti-accused stance which is profoundly anti-Constitutional and – you can legitimately say – anti-American.
And that the vital and fundamental focal point of the agon and drama of criminal process and criminal trials is now ominously and lethally shifted. It is shifted from a careful ascertaining as to whether the accused (a) is by rational consideration of the evidence actually guilty of committing a charged criminal ‘act’ and thus liable to the Sovereign police-power, or whether (b) the accused is demonstrably innocent and not liable to the Sovereign police-power. It is shifted to a rapid ‘processing’ dynamic that quietly (perhaps unthinkingly) assumes the guilt of the accused and seeks to support society and re-affirm ‘tradition’ by quickly punishing as many of these crime-committers as possible.
Point (4) expands the implications of Point 3 by introducing an almost military-justice-like emphasis on simply clearing away the active (and vitally ‘traditional’) Constitutional protections that are now seen not as protecting the rights of the accused Citizen but rather as obstructing the efficient conviction of presumptively guilty ‘criminals’ (now no longer seen as ‘defendants’ or even as Citizens-accused).
Thus restrictions on police investigatory procedures and requirements for valid and solid evidentiary material begin to be deliberately weakened.
Interestingly, the V-R advocates also insisted on a reduction in opportunities for plea-bargaining (since such legal maneuvers enabled perps to ‘evade’ the full punishment due their alleged crimes and also – increasingly – enabled perps to ‘escape’ having to be confronted by the tearful victim, which set-piece scene was rapidly becoming an essential mainstay of desired and demanded Victimist legal ‘reform’). But from a purely ‘efficient’ point of view, the plea-bargains were essential to keeping the courts and prosecutors from being clogged up with full trials.
Ditto the Victimist demands for greatly-reduced parole opportunities, which helped to keep the prisons from becoming overcrowded. But, I would say, the 1980s were still a period when the government had plenty of cash (or appeared to) and the solution would be to employ more people in building and administering prisons – so politically there was a substantial upside to offset any loss of ‘efficiency’.
Point (5) adds the almost-obligatory imagined upside or ‘big and good intention’ that is intended to lubricate public opinion into accepting – or at least not actively opposing – this whole welter of ‘reforms’ which are actually i) verrrrry anti-Constitutional, ii) verrrrry anti-traditional in terms of American vision and praxis, and iii) verrrrry liable to create seriously damaging ill-consequences, many of which (as Henderson among many others will point out at the time) are as clearly possible to competent observers 30 years ago as they are becoming clear to large numbers of folks today.
In other words, nobody – including legal professionals, legal scholars, law enforcement agents, assorted ‘experts’, or politicians – can claim today that they are ‘surprised’ (or ‘shocked’) to discover that all of the ‘reforms’ have led to catastrophic consequences. What is true for the financial mess is also true for the SO Mania Regime: the lethal dangers were clear, were pointed out, and were ignored from the get-go.
This goes as well for the mainstream media who were seduced by the easy profits of ‘if it bleeds, it leads’ journalism, which would be shrewdly and endlessly exploited by V-R (and later SO Mania) advocates, ably enabled and assisted by pols hungry for good and cheap PR (which turned out to be verrrry expensive for the country and the Constitution on soooo many levels).
And of course, this whole soap-opera approach handily distracted the American people from i) the increasingly woozy and shaky behavior of the economy (being allowed to outsource and then offshore with pandering by pols of Left and Right to the financial honchos) and ii) the highly alien ‘reforms’ being imposed upon American culture primarily from the Left in terms of the weakening of Family, Parental Role, Maturity, Tradition, Virtue, Commitment, and all that ‘old’ stuff.
And what started out as sort of a Boomer-Hippie desire for ‘freedom’ was becoming throughout the 1970s, under the tutelage of a far more focused and organized radical-feminist advocacy, a concerted, deliberate, and sustained legal and political assault on all those capital-letter realities. (I am not making a cheap, rhetorically nasty accusation here; the cadres gladly – among ‘friendly’ audiences – admit that this is what they were trying to do and have done. I only differ from them a) in refusing to accept their demands and objectives as simply ‘reforms’ and b) in refusing to ignore the potential but lethal consequences that they hid rather than face-up-to but which are now manifesting with intensifying ferocity.)
Henderson notes (p.104) that “20th century conservatives never accepted the Warren Court’s defense of the ‘rights of the accused’”. She is accurate in this; and it is a sad reality that future historians will no doubt shake their heads over: the nation’s public ‘conservatives’ were actually not conserving the vital elements of the Framing Vision at all.
There may be numerous reasons for this (and I don’t want to become so ‘historical’ that we lose sight of the SO focus of the site here) but the bottom-line remains.
There were many powerful forces acting on American society in the post-1970 era, especially a) the economic problems on the world-stage and b) the ever-intensifying domestic political pressure to reject-by-‘reform’ broad and vitally deep elements of the nation’s and the West’s Culture and Tradition, that worked to deform and derange both Conservatism and Liberalism, and all to the detriment (I would say it’s becoming clear now) of the national common-weal in all of its major dimensions.
It is in that context that I see the SO Mania Regime.
Henderson limns the effect of the V-R element’s introduction into criminal process: “Discovery of the crime-victim provided an individual to substitute for the State on the scales of Justice, opposite to the accused, thus making it appear that the ‘balance’ was more ‘equal’”.
She’s spot on here.
So the Question here must be: What ‘balance’? The ‘balance’ between the Sovereign police-power of the government and the individual accused Citizen has always been so clearly in favor of the State that the Framers insisted upon Constitutional and Bill of Rights protections just to give the individual a half-decent chance against the Leviathan that the Framers knew even the American national or State governments could easily try to become.
So then to introduce the ‘Victim’ on behalf of the State, sort of as the baby harp-seal that for so long has been the ‘front-animal’ for fund-raising among animal-rights activists, is hugely and profoundly un-balancing to a balance that was always somewhat unbalanced to begin with.
(And – I’m getting ahead of myself as well as Henderson here – this is all before the radical-feminist lobbies further tailored ‘the Victim’ into being the baby harp-seal for their avowed war not only against American culture but with lethal specificity against American males (half the Citizenry), all males, and patriarchy, thereby indenturing the Beltway pols to deploy the Sovereign authority in an even more un-balancing way against the individual accused Citizen who had now been painted as the monstrous, incorrigible, evil, slavering Sex Offender and his astronomically high recidivism rates.)
Before there was a fake ‘balance’ in news-reporting, there was a fake ‘balance’ – spun as 'balancing' – in criminal law, courtesy of the Right-Conservatives.
In a Note (p.158, number 63) she traces the effects of all that in numbers: in 1970 there were 196,000 people in prison in this country, 97 for every 100,000 of population; in 1980 there were 321,000, 142 for every 100,000 of population; in 1983 there were 455,000 in prison. ( In 2009 there were about 2.3 million imprisoned, about 1 pct of the population, and about 5 million on parole or probation – for a total of about 7.2 million, equaling 3.2 pct or so of the population, which itself has almost tripled since 1970; and equaling about 1 in every 100 adults. )
Note that this does not include the total number of registered sex-offenders, which was estimated at 700,000 in 2010. (And of course this estimate does not include the untold numbers of 'technical' sex-offenders created overnight with the passage of the Adam Walsh Act.)
In a Note (p. 158, number 68) Henderson will make a connection that she perhaps prudently avoids doing in the text of the article: she takes note of “the rediscovery of rape by radical-feminists’ that “ played a key role in the lobbying for ‘reforms’ in the law of rape”.
Even as early as 1985 she could see this development gathering steam.
Because if the “far from dispassionate” (p. 105) effect of V-R participation was evident to her even in (mostly ‘conservative’) 1985, things only got worse – much worse very quickly – as the blending of the radical-feminist War Against Males ramped up, including the toxic ‘reform’ against Objectivity and Detachment in adjudication and jurispraxis.
In 1985 the basic trope was that the Innocent and Helpless Victim was preyed-upon by evil Strangers through violent street crime.
The government, V-R advocates demanded, must see itself as not simply addressing the demands and needs (and soon ‘rights’) of individual victims, but also must see itself as addressing – through the instant individual victim – all of the past victims (of the instant accused or of all offenders) and of all future and potential victims (p.106).
In other words – and what a marvelous ‘hook’ it was, as they might say in the screenwriting trade – the entire country was implicitly involved in any particular case because all people were potential victims. The entire Citizenry was envisioned as being merely a deer-park for perps (of violent street crime). Innocent and Helpless, all (decent) Citizens had to be ‘protected’ by the government, by the wide and robust and efficient deployment of the Sovereign police-power.
Thus, any jurors would be enticed into seeing themselves not as the peers of the accused dispassionately sifting and evaluating the evidence against him, but rather to see themselves as potential victims of the accused, or as the Constitutional protectors of all the (imagined) past or future potential victims of this accused or of any other perp.
And, I add, they would have been ‘influenced’ toward that even before being called to jury duty; the media would have soused all readers or viewers with the lurid V-R stories and the implicit message that anybody could be a victim of the Awful Perp. (I would note here that the Awful Perp was the immediate progenitor of the Slavering Monster Stranger Sex Offender.)
And, Henderson goes on, what were being put forth by V-R advocates were not “demands, desires, or agendas” but rather “rights” – which she characterizes (p. 106) as “undefined, undefinable, vital, essential, urgent, and undeniable”.
And neatly, the effect of the ‘rights-gambit’ (my term) was that a) formal legal objections to all of these ‘reforms’ were legally undermined before-the-fact because a purported ‘right’ enjoys far more legal oomph than a proposed new legal change; it’s the equivalent of giving your demand emergency lights and siren and sending it out into the general traffic.
And, b) she rightly asks Who could then be ‘against’ the Victim? Who could be opposed to the baby harp-seal?
All of this, I point out, profoundly un-balances whatever Constitutional ‘balance’ the Framers were trying to provide and which they saw was utterly essential to provide and maintain. Because for purposes of adjudication, if you were ‘for’ the Victim then you were ‘for’ the broad and deep engorgement of the Sovereign police-power precisely at the expense of the ‘accused’ (now being seen rather as the ‘offender’ and the ‘perp’ even before the trial began).
This is all rather ‘symbolic’, Henderson notes (p.107). Rather than being based on the actual, specific individual accused and the facts of his case, this ‘symbolic’ thinking quickly spins him as merely an instance of a much larger narrative or ‘story’, where there are perps and victims (past, present, or potential), Good and Evil, and only the Sovereign police-power of the government and prosecution stands between ‘you’ and ‘Evil’.
(Again, this is all before the specific SO Mania manipulation of public opinion and all the rest of the frakkery of the Mania Regime starts to kick in.)
“The symbolic imagination successfully avoids more serious debate as to how criminal-justice should be structured and disguises the truly revolutionary nature of the reforms proposed”. (p.107) (Italics mine)
She then examines (in 1985) just what actually is the impact of the crime upon the victim.
What does it mean to be a victim? When does one begin being a victim? When does one cease to be a victim? (This last question has huge parameters, legally but also psychologically and existentially.)
There is, she notes (p.107), “little reliable evidence on the experience of victimization”. (Here she is looking for valid scientific evidence, and not simply the burgeoning pandemonium of ‘victim stories’ to be shared with believers and to shock un-believers.) These, I add, are specifically useful for undermining any traditionally objective and detached consideration of their story and purported plight, and for ramping up a quick emotional identification with the victim regardless of any other facts or evidence.
Henderson (p. 107) raises the matter of ‘pre-existing’ personal weakness or damage that – while it may not contribute to the individual’s having been victimized in the first place – certainly might retard any healthy recovery-response or resilience-potential in any victimized person. I would add here that this is a strongly valid point, especially as it implicates the victim as an existentially responsible human being in effecting his/her own recovery. Rather than simply relying – in the Victim Scenario – upon the prosecution and the Sovereign police-power to deliver ‘closure’ and complete the circuit of vengeance for the victimization.
She agrees (p.108) that sudden and extreme victimization from the more extreme violent crimes (attempted homicide, actual stranger-rape, kidnapping, armed robbery, aggravated physical assault – and that’s the end of her careful list) can create a welter of damaging issues, including the sense of being intruded-upon and the sense of ‘not being home in the world’.
In that last instance, I would point out that human beings have philosophically never felt ‘at home in the world’ completely, and that one of the classic ‘existential challenges’ and also ‘existential responsibilities’ for a human is to continue fruitful residence in a world that is not ever fully going to be one’s ‘home’. Which is not to say that victims are by the very fact of victimization existential failures, but merely to point out that the experience of being victimized brings with it certain intensified responsibilities to the victim-as-human-being. All of this is neatly sidestepped by the V-R emphasis on ‘helplessness’ and subsequent dependence upon the Sovereign prosecutorial police-power to ‘bring’ ‘closure’ to you.
I would also add that if V-R theory here were even more widely and deeply embraced as national policy, it would require the Sovereign police-power and regulatory power to so deeply and broadly terraform the very experience of human existence that humans would never be ‘victimized’ by ‘feeling not-at-home in the universe’. This would be the equivalent of the government guaranteeing that you have a right to go into the water and not get wet. It would also require a Sovereign authority with the wisdom and power traditionally ascribed to God.
It is also an accurate approach to looking at how Victimism, once bolstered by the schematic manipulations of radical-feminism, has already created a National Nanny State seeking to do exactly all that.
And the SO Mania Regime is simply the first essay of such a Nanny-Preventive-Protective State in erasing the Constitutional America and replacing it with the Government-Dependent America.
In that same vein (p.111), claims of ‘social isolation’ following victimization are hard to causally separate from the natural sense of ‘social isolation’ which many persons feel from childhood, and which even more adults occasionally feel – with or without cause – as they go through life among other human beings.
Henderson then goes on to consider the implications of this emerging V-R theory. (p.111)
The consequences of a jury considering themselves as ‘potential victims’ has already been discussed above.
What may be good for a ‘past’ victim is not necessarily good for any future-potential victims. (p.112) A too-harsh ‘vengeance’ – abetted by a court and jury that consider themselves to be not the triers of an accused Citizen but rather the avengers of a self-declared victim – might simply create a more-entrenched and resolute and angry future-perpetrator where one had not existed before. This is not good for any potential-future victims. (And the 'solution' to this was to impose longer prison sentences to kick down the road the 'can' of having created large numbers of more enraged, more hopeless, more 'dedicated' perps through imprisonment.)
I would also note the difference – and it is not small – between envisioning a pool of potential-future victims and envisioning a ‘society’. If American society is reduced to being nothing more than a pool of ‘victims’ and a larger pool of ‘potential-future victims’ (and the SO Mania has only intensified this precise frakkery), then America is profoundly (I would say fatally) weakened as a society, as a commonweal.
In the Victim Scenario we are all nothing but victims (past, present, or potential) or perps (ditto). This is grossly insufficient as a conceptual basis for sustaining a society and a culture. There is no communion, no unitive bond between and among the entire body of the Citizenry; instead there is a divisive fractalization and fragmentation that undermines any sense of common identity or purpose.
Worse, the only thing tying us all together (you couldn’t decently say ‘uniting’ us) is the Sovereign police and regulatory power, acting as ultimate and immediate preventer and vengeance-wreaker on whomever is accused of being a perp. And if we are a society held together by nothing more than that, then we are ipso facto nothing more than Communist East Germany under the Stasi.
THIS cannot be allowed to happen. We can’t let it happen. (And thus the SO community are vitally important to the nation in their work.)
Henderson then goes on to make a professional complaint not often heard (p.113): the ‘re-victimization’ of the victim through the purported horror-stories of police stations where alleged victims are ‘questioned’ or courtrooms where victims are disrespected (or simply interrogated by un-believing opposing counsel) is, she says, “implausible” and “insulting to judges and law-enforcement” personnel.
And I wonder how much this urgent need not to give any grounds to gimlet-eyed advocates that one is ‘insensitive’ has motivated actual emotion-driven miscarriages against the accused in order to mollify the alleged victim.
And I point out again that the 1982 Presidential Task Force on Victims of Crime seems very strongly to insinuate that ‘facts don’t matter’ if you are engaged in the ‘right’ cause. (A trope taken up by radical-feminist elements on the Left not only in the ramp-up to the SO Mania but also in regard to jurisprudence and serious matters of public interest generally; and that entire dynamic has then been taken up in foreign policy.)
She ticks off a list of demands (p.113) by V-R advocates: that suspects remain in custody after arrest and that bail be denied; that there are no ‘delays’ in the trial process; that plea-bargaining either be eliminated or be required to get the alleged victim’s approval; that defense be restricted in cross-examination of victims as to their stories; that exclusionary rules (which govern what is and is not admissible as evidence; and statutes of limitations) be weakened in favor of the victim and strengthened against the accused; that victims be allowed to participate in sentencing; that victims receive not only compensation from the State but full restitution from the accused (once convicted in a system undermined by the prior V-R demands).
She also notes the queasy ‘reforms’ to the Federal Rules of Evidence in this regard. Rule 608 specifically insists that the victim be protected from ‘embarrassment’ and be prevented from feeling that she rather than the accused is ‘on trial here’.
But, she notes, these demands are either constitutionally suspect (to say the least) or else are incoherent in that they work against other demands made by the V-R advocates.
Thus pretrial detention runs afoul of the VIII Amendment’s protections (though, she notes unhappily, the Supreme Court is (1985) becoming more friendly to the idea).
The predication of process upon the victim’s ‘feeling’ (e.g. the victim doesn’t ‘feel safe’ if the accused isn’t in jail) is not a sufficient justification for undermining vital and basic principles of the Western and American justice system.
Additionally, Henderson notes (p.114), that the victim need not make such invasive and lethal demands of the criminal justice system when s/he can always civilly sue the alleged violator. But this, I note, would undermine the ulterior motive of the prosecutorial Right in embracing the Victim movement in the first place: that it was always the objective that the criminal-justice process be deformed and deranged in favor of the Sovereign police-power.
The demanded speed-up of investigation and trial process leaves far too much room for ‘stampede’ (my term) and sloppy police work that could lead to false evidence being presented to courts and juries. (I would say that this result is not purely accidental; there is a heavy scent of premeditated manipulation in this push to rush everything along against the accused.) And again Henderson’s vital and substantial objection holds here: there is no need whatsoever (including the needs of the victim) that can possibly justify the derangement and deforming of vital and utterly foundational principles of American law.
In regard to the restrictions on plea-bargaining, and to many of the other demands, Henderson says (p.119) that if the ‘catharsis and closure’ needed by the alleged victim come to govern criminal process, then there are effectively no boundaries whatsoever to the restrictive deployment of the police-power. If the victim’s personal needs, known provably only to him/herself and inaccessible to anybody else’s objective review, are allowed to govern in the deployment of the police-power, then there are no more boundaries on police and courts and prosecutors then there were in the horrific days of ‘spectral evidence’ in the witchcraft trials. This then regresses 1787 to 1692 and I defy anybody to claim and demonstrate that that is ‘progress’.
Ditto the ‘reforms’ to the Exclusionary principles that govern what is admissible as genuinely useful evidence and what is not. And which would include the gutting of the Statute of Limitations that was precisely erected to compensate for the inescapable human realities that evidence and memory – especially ‘eyewitness’ evidence – degrade over time until they can no longer be considered reliable or accessible to detached and objective examination and assessment. (Of course, the V-R and Mania comeback is that courts must NOT be detached and objective, and that ‘feelings’ and ‘memories’ must be presumed to have probative evidentiary value ‘just because’. Nor would any less-than-angelic prosecutor refuse such manna from … hell, I would call it. )
And (p.121) at what level of court process does the victim deserve closure? At the trial level only? At the subsequent appeals levels? Will an accused’s entire adjudication process, throughout all levels from trial to the various levels of higher appellate review, be skewed against him? Yet if a case is reversed-remanded at a higher level, how would a victim’s ‘rights’ apply then?
And whence is derived the ‘right’ of the victim to have the government act not on behalf of Law or Society but simply as the personal instrument of vengeance for the individual victim? (p.121) In any event, is any such advantage to the victim to be presumed to trump and outweigh the vast Framing and Constitutional ‘interest’ in preserving the rights of the accused Citizen against the Sovereign police-power?
I would add here the Question: Doesn’t the government have a huge ‘compelling interest’ in preserving the Framing Vision and the Constitutional protections in order to retain for the common-weal and the Republic the vigor and vitality and efficacy of the American Founding Vision itself? Is that Vision totally ‘fungible’? What happens when respect for Law and the nation’s very Founding Vision is disassembled? What holds the country together then? Is any of THAT not a legitimate ‘compelling interest’ of the State and the government?
And Henderson raises the profound question of just how ‘harm’ is defined. (p.129) This was a problem going back to Mill and Bentham: granted that ‘harm’ should be prevented, how is this ‘harm’ to be defined and identified? Because if ‘harm’ is defined broadly to include inaccessible ‘feelings’ reported by the purportedly ‘harmed’ person, then there are for all practical purposes no boundaries whatsoever on the government’s potential intrusive and invasive power in avenging that ‘harm’, let alone in preventing it.
In this regard, the indiscriminate mixing of the psychological and the legislative-legal so characteristic of the past few decades is hugely dangerous. While it is valid professional practice for a (competent) therapist to ‘validate’ expressions of deep negative feeling expressed by the patient, this is only to assist in therapy and remains confined to the special ‘space’ enfolding therapist and patient.
But for courts and legislators to do so, to erect such ‘validations’ as principles of law and jurispraxis, is a whole other Thing altogether. The Sovereign police-power is a powerful and also lethal power, with consequences for accused Citizens and for the common-weal of the polity itself.
To indiscriminately lavish this awesome and awe-full power for short-term political gain is even more dangerous than splashing public tax-dollars around as pork and bennies to favored constituencies. (And, as is now obvious, sooner or later you draw down the fund of lavishable goodies and then what happens?)
Again, in a Note (p.178, number 260) Henderson makes clear if buried reference to the incipient threat posed by radical-feminist agitation as it tends toward a union of Victimism and Radical Feminism. She makes reference to Susan Brownmiller’s radical-feminist rape-tract book “Against Our Will” from 1975.
And in a subsequent Note (p. 179, number 263) Henderson observes candidly that vengeance is too closely akin to primitivism and barbarity, to vigilantism and a regressive return to the harsh legal practices of an earlier age.
Working toward her conclusion, Henderson also refutes a favorite V-R assertion: that since the State has taken over a monopoly of the police-power to control crime, then it is required in principle to compensate the victim when it fails to prevent a crime against the victim. This is a principle of tort law that is covered by victim-compensation laws, where the victim of a crime is compensated by the State out of public funds and tax monies.
But it cannot simply be transferred to the far more lethal criminal law to ‘justify’ a State responsibility to act as the personal instrument of vengeance for victims. There is most surely a ‘compelling state interest’ in wielding the police-power with a prudent eye to the wider and longer-term consequences for the common-weal.
And regressing the country back to 1692 and the jurisprudence and government practice of the witchcraft era is not at all, I say again, in the public interest – nor will it serve to make American society safer; indeed, it will corrupt and destroy the foundations of American society.
So that’s my take on Henderson’s very worthwhile article.
She wrote a second article, updating this one, in 1999, and that will be the subject of my next Post.
So much remains to be done.
**St. Martin’s Press. ISBN 0-312-07551-0.