REVISITING VICTIM RIGHTS 4

As promised, I am going to continue looking at Lynne M. Henderson’s 1999 Victim-Rights (V-R) article, which follows up on the 1985 article which I looked at two Posts ago. Instructions for accessing the text of the article are in Note* below.

This is my last Post on Henderson’s 1999 article and I am focusing on the section in which she more specifically discusses Victim-Rights (V-R) dynamics in regard to Domestic Violence and SO law.

Her concern throughout the article has been the then-proposed (that subsequently failed to pass) Constitutional Amendment for V-R: especially its insistence that victims of crime (however defined) be granted certain Constitutional rights specifically attaching to the status of being the victim of a crime (however defined).

“Surely”, she says (p.68), “if victim’s rights are to be corrective to defendant’s rights, victims should be entitled to counsel to represent them in court”.

And (p.68) that can’t be the prosecutor, because the prosecutor’s responsibilities and agenda may not coincide wholly or even largely with the victim’s. (This flows from the problem that while a civil tort action is designed precisely to adjudge the ‘harm’ caused to the complainant-plaintiff-‘victim’, the criminal trial process is designed to adjudge matters of the State’s interest in conducting formal punishment for illegal acts and crimes.)

As there is a vital asymmetry created when you attempt to insinuate or inject V-R concerns into the criminal trial process, so there are significant potential conflicts of interest created among the relevant participants, i.e. the victim(s) and the prosecution.

Prosecutors (p.68) must i) represent the community’s and the State’s interests and ii) as Officers of the Court must ensure that Justice is done and Truth is served. Adding a third responsibility, meeting the needs of the Victim and carrying out an agenda acceptable to the Victim’s desires and feelings and ‘needs’, is doubly ill-advised.

First, it loads another task onto an already burdened Prosecution.

And second, it loads a task that may at rather vital points create demands that conflict with Prosecutorial responsibilities (i) and (ii) above.

For one thing, it is well within the realm of possibility and a prosecutor’s discretion and responsibility to Truth and Justice that an accused not be charged – which, of course, does happen and quickly enrages the V-R advocacies, fueling demands that legislation be passed to force prosecutors to charge and try anybody whom any self-declared victim accuses. The V-R presumption, blended with the radical-feminist presumptions, implies that one is innocent until accused – so they can’t quite see what all the ‘complication’ and ‘delay’ is, unless it is motivated by ‘insensitivity’. And, of course, a strong thread of radical-feminist thought holds that all (heterosexual) sex is crime and all males are guilty even if not yet accused.

I would add that since ‘truth’ and the search for ‘facts’ is not really high on the advocacy list (the only real Truth is that of the Victim’s feelings and ‘facts’ simply confuse that matter and delay the vengeance) then the Prosecution is put in an awful fix.

Now it was precisely the law-and-order Right that got this V-R thing going in the early 1980s to begin with, but what you are starting to see here in the late 1990s is the Victim bunch – perhaps emboldened and advised by the already revolutionary radical-feminist advocacies – starting to actually take on a life of their own, beyond the ‘front’ and ‘puppet’ status for which the Victim was originally embraced by the Right in the 1980s.

Henderson (p.69) mentions certain very real tactical concerns that would not occur to a lay reader: for reasons of a successful prosecution, a prosecutor may not want a complainant to reveal all the facts and ‘tell her story’, simply in order to avoid “opening up possible avenues of defense” by providing the defense with what is known professionally as “free discovery”.

This conflicts with the emotions and agenda of victims who are seeking to ‘tell their story’ and have been led to believe (by advocacy spin) that that is pretty much what courts are all about (and in the case of ‘victim-friendly’ courts, that may well be too disturbingly true).

I add that if complainants have either been prepped by advocates or have simply read or watched too many media stories and ‘reports’, they may come to the prosecutor already assuming that V-R visions are official legal praxis: finding out that such is not the case, they may well immediately feel betrayed, and it is those (mistaken) feelings of ‘betrayal by the system’ that simply create even more juicy if whackulent ‘news’, which is then battened upon by advocates for even more ‘coverage’ to generate even more ‘pressure’ for their demands.  Again, the self-licking ice-cream cone dynamic.

Henderson then observes (p.69) that “advocates of the [V-R] amendment often point to feminist law reforms as examples of the need to have victim’s rights”.

But Henderson quickly observes that many feminist law reforms have (in 1999) already been passed without any need for a V-R amendment at all.

She continues (p.69) that “until the needs of rape and battering victims were brought to public attention, violence against women was ignored by the public and prosecutors”.

I would add here that I think Henderson is far too generous referring to all the changes as simply and purely “reforms”; I think it is clear that to a far larger and deeper degree than is acknowledged they were derangements, and lethal ones, and insidiously injected into the American legal and cultural Universe.

She continues (p.69): “Yet massive law reforms, accomplished by feminists in alliance with crime control conservatives, have in no way been dependent on whether victims have [V-R type] rights”.

She has noticed the alliance between Left and Right even back in 1999.

And again, I am going to say that many of those ‘reforms’, and many of the consequences of those ‘reforms’, have been precisely hostile to the primary responsibilities of the criminal-justice system.

 And she continues (p.70) that “rape survivors and prosecutors may frequently be at odds with one another about whether to prosecute”.

I point out again that “survivor” – a term once used only in regard to people who walked away from a plane crash – gained massive (and legitimate) credence in this country in the late 1960s as a term referring to those who escaped alive from the Holocaust. It was quickly taken over by feminist and victimist advocacies both to describe the recipients of this or that targeted experience and also as a sly framing of the targeted experience itself: thus, for example, a woman is (an innocent and helpless) ‘survivor’ of rape because rape (or all heterosexual activity) is a Holocaust and men are the Nazis who create and sustain it. Neat.

But toooooo neat.

And as the ‘trauma-recovery’ business has expanded, there are now untold numbers who derive some satisfaction from describing themselves as “survivors” (of this or that) while the term also automatically does the heavy (and dirty) lifting of shrieking that the ‘perps’ (so often males) are the Nazis bent upon wiping them off the face of the earth (who, being Nazis for all practical purposes, deserve to be eradicated forthwith and who, being Nazis, have no rights that the government need recognize or honor).

You can’t seriously conduct the grave and vital business of a great commonwealth and Republic while governed by such melodramatic and manipulative scripts. It is wrecking the legislative and judicial and law-enforcement systems, deforming the very political dynamics that are the life-energy of the Republic, and – as it has migrated into foreign policy – has led to massive military misadventures.

Henderson also observes (p.70, Note 135) that there is a distinction to be made between “rape by strangers – real rape – and rape by acquaintances”. This distinction is precisely what the date-rape advocates have been trying to eliminate, yet it is precisely the boundary between the relatively solid-ground  legally-workable territory of adjudicating a crime perpetrated by a stranger upon a thoroughly uninvolved victim and – on the far side of the boundary – the swampy jungles of he said-she said, where for centuries any sober and serious and responsible agent of law would be hesitant to tread with the dread Sovereign power, for fear of misapplying it and further engorging Leviathan while simultaneously undermining the credibility of its legitimacy.

So, she determines (p.71), you can’t take V-R and “simply graft it onto” prosecutorial responsibilities. Nor can you take V-R and simply inject it into the criminal-trial system.

But that is precisely what the radical-feminist and victimist agenda has been working to accomplish. (See Note ** below.) And the SO Mania Regime is a Frankensteinian product of those efforts.

Henderson also shares that she prefers the term ‘relationship violence’ to ‘domestic violence’ since nowadays so many of the cases involve incidents that take place outside of marriage.

Henderson notes (p.71) a then-recent article that demanded the mandatory prosecution of batterers. (I note that the legal qualification for being a “batterer” now can include simply maintaining silence in a phone conversation, even a long-distance one. When speaking of “battering” now, one must include those quotation marks I use here not to ‘scare’ readers but simply to remind them – like yellow flashing barriers around road hazards – that the term is not necessarily what it would appear to be on first glance; the actual legal working definition has expanded far beyond any dictionary’s power to describe. So too, of course, in so many SO terms, from ‘abuse’ and ‘molesting’ all the way up to ‘rape’.)

But the author (herself a female former prosecutor) of that article is pushing for mandatory prosecution because in her own experience so many victims of ‘battering’ do not want to prosecute (and not simply because they are ‘afraid’).

This reveals, I would say, a deep abyss that is obstructing the feminist-victimist agenda: too many of the alleged (and apparently the actual, too) victims do not want to prosecute, yet it is in the advocacy’s agenda to ensure as many prosecutions (and guilty verdicts) as possible in order to achieve their purpose of ‘changing society’; a purpose for which they seek to dragoon the criminal justice and judicial systems, come hell or high water.

This abyss was potentially there in the 1980s, but at that time the Right saw – accurately – no equally organized political pressure groups on the Left who might develop an agenda of their own and actually pull the entire legal (and legislative) system into territory that not even the law-and-order Right dared to envision.

And, indeed, it would have to be said that in light of subsequent developments, up to and including the SO Mania Regime, no genuine and conscientious law-and-order advocate would dare to create such a profoundly deranging pressure on law-and-order as have the Domestic Violence and SO Mania Regimes.

But, I would also have to add: what conscientious and Constitutionally-grounded law-and-order advocate would have really plumped for the Victim-vs-Accused gambit in the first place? After all, the most essential thrust of this whole gambit has been to derange the Framing Vision’s and Constitution’s guarantees to any accused Citizen. This whole thing was profoundly anti-Constitutional from the get-go 30 years ago.

The Correct justifications for mandatory prosecution, rehearsed by the article’s author (p.72), are that the female-victim must think of financial considerations since she is dependent on the accused male for economic independence; and because – perhaps being a more sensitive creature than the lumpish and brutish male – she would not want to “feel responsible” for his punishment; and she may be “subject to the controlling behavior” of the accused and even the subject of “threats” from him (however defined or interpreted); or she might fear his retaliation.

But if this is all true – and how on earth to determine it in many cases? – then the accused will be subjected to a court process already greatly deformed against the rights of the accused. And that doesn’t include a secondary deformation: judges who have been appointed (perhaps to a ‘special’ court) precisely because they are committed ‘revolutionaries’ (my term) who come to each case committed thoroughly to the presumption that all males are presumable perps in matters of sex and violence.

This is no way to conduct fair and impartial justice. This is also no way for a government to assault one-half of its Citizenry with its Sovereign authority. And it cannot end well.

Henderson also observes (p.73) – and sensibly enough – that at the heart of these cases is a relationship of actual love and care that governs the attitudes and actions of both complainant and accused.

She quickly points out the Correct comeback to this possibility: that the victim is herself deluded by “false consciousness”, i.e. that she ‘just doesn’t get it’ because she is not completely governed by the advocacy presumptions about the inherent violence of all men and most sex.

So you wind up with the advocacy itself turning upon the purported victim. Funny how the Mania night moves.

Henderson also notes (p.73, Note 144) the advocacy claims that women are more ‘relational’ and thus “fear abandonment and isolation”. But if this is true – and we are now veering close to making rather general judgment statements about all women, as the advocacy thinking itself is doing here – then a profound question is exposed, which is relevant to both Domestic Violence and SO matters: if women generally are possessed of such characteristics, rendering them greatly liable to initiating relational and even sexual encounters, then from the get-go, decades ago, legislators should have been hugely careful in trying to figure how – and to what extent – government authority, especially the Sovereign police power, could be deployed in regard to such matters.

Because clearly the Framework and the Framing Vision of the Constitution presumed the maturity and general life-competence of each Citizen (and thereby focused on preserving the independence of those Citizens from the arbitrary and excessive intrusions created by deploying the Sovereign police power against them).

And ‘rape’ and wife-beating have been crimes in Western civilization for as far back as the records go.

The argument that the former prosecutor’s article puts forth (p.74) is that “aggressive prosecution” would serve as a ‘signal’ (would ‘send a message’, you might say) that the ‘offense’ is ‘serious’ and this would lead to “deterrence and proper punishment”.

But the first and foremost Framing concern (and this should also constitute a compelling State interest) is not to be sending messages in the service of this or that advocacy agenda, but rather primarily to ensure the careful deployment of the Sovereign police power so that Leviathan doesn’t consume the lives of its own Citizens.

To declare that “quaint” or to insist that the Framers ‘just didn’t get it’ is a profoundly dangerous gambit, since it opens the door – a watertight protective door, I would add – to all sorts of pressure groups and agendas getting control of the Sovereign police power for their own purposes. (And in that regard I envision the government nowadays as looking very much like the government of Chicago in the 1920s, where the pressure brought by the organized mobsters dragooned or bought the entire apparatus – legislative, executive, and judicial – of the City and County so that all would function in the service of the mobsters’ interests.)

The former prosecutor then makes the assertion (p.74) that “failure to prosecute leads the State back to being a silent partner in condoning” all of the relational and sexual violence. 

That assertion doesn’t work, I would say.  

The key reality is that the State can only do so much before it deforms itself and betrays its Framing role and mandate, thereby deranging the entire Constitutionally-envisioned machinery and dynamics that allow the Republic to operate.

But it gets worse (p.74). “Allowing battered women [however defined] to refuse to participate in prosecutions undermines the State’s important interests in prosecuting violent criminals, preventing revictimization of women and any children involved, and ending the cycle of violence that may occur in these relationships”.

So as you see, the advocacies here wants to refuse a batter-ee (however defined, and the thresh-hold has become remarkably low) her choice not to be involved.

This dragoons batter-ees into the advocacy Scheme, whether they want to participate or not. Some liberation.

The element of coercion in so much of advocacy Theory becomes clear here. And of course the Sovereign police power will be the agent of that coercion (against both complainants and accused).

Indeed, this author will (p.75) assert that prosecutors should force (mostly female) battering victims to participate in the prosecution, even if it means jailing them if they refuse to do so.

The claim is that the State has an “interest” in requiring participation in order to prevent the battering (however defined). There is most surely a sound logic to this position. Although this logic quickly leads to the State having an “interest” in prosecuting just about any evil or unhappiness that may arise in relationship and sexual-relationship issues. Which rather profoundly undermines the Framing Vision’s determination to boundary the scope and intensity of the government’s intrusion – especially with its police power – into the lives of Citizens.

And taken in the context of the widespread and deep deconstruction of any cultural Shape to relationships – in the service of ‘total freedom and autonomy’ for women to do whatever they like in initiating or entering into relationships of any kind – you can imagine that the horizon for such a dynamic becomes almost infinite, with no boundaries to it at all.

Against which – as I have been saying – one must ideally balance the compelling State interest in adhering to the Framing Vision or otherwise risk profoundly deranging the whole Vision (leading to some type of America that is hell-and-gone from any faithfulness to the legitimacy of the Framing Vision). But this is the type of common-sense and deeply vital consideration and analysis that the radical-feminist and victimist advocacies in this country have always sought to short-circuit, stampeding the public into simply recoiling in horror and outrage at the (relatively rare) actual horrific incidences of genuine battering.

And by opening the most intimate relationships to criminal law, there is thus absolutely no realm of Citizens’ lives that is immune to the intrusion of the State and the Sovereign police power.

So there is a vital calculus and balancing here, and one that must be governed by a) the Framing Vision and b) a wide public deliberative political consideration of the core Question: how far should the government be allowed to go in rectifying (or preventing) crime and the evils of human life before some vital balance and dynamic is hopelessly deranged?

Ideally, Citizens would be presumed to be mature and responsible in their life-choices, though the criminal law would always be available for dealing with individual cases.

But this is not what ‘revolutionary’ praxis seeks, and thus the almost literal ‘construction’ of this or that Mania is required to generate the unthinking public emotion that will lubricate the slide into some Alien Universe.

“Police will not investigate carefully or take relationship violence seriously if prosecutors will not pursue these cases” (p.74). But in the context of the necessary Mania, such ‘investigation’ becomes skewed from the get-go against the accused, and such ‘trials’ become heavily weighted against the accused, even to the extent of deranging vital Constitutional protections for any accused Citizen.

And thus such trials also come perilously close to Stalinist ‘show-trials’, where the purpose is not to discover Truth and adjudge the guilt or innocence of the accused in the particular case. Rather, the trial is designed to ‘show’ all the Citizens the power of the State, and that they will not be able to ‘hide’ from the State behind any ‘abstract’ rights. This is a recipe for Constitutional disaster and for a slide into some Alien type of America.

For all Branches of the government to collude in this and enable it … this is one of the most vividly lethal developments of the Age of Advocacy. And the Domestic Violence and SO Mania Regimes are the result and the clear example of this.

Further, as Henderson quotes (p.75) this former female prosecutor, the purpose of all this is not to put the Victim at the center of events (which is a departure from most Victimist thinking) but rather “to punish the batterer [however defined] in order to protect potential victims via deterrence and incapacitation”.   

So whatever Constitutional rights the accused might have, whatever prosecutorial discretion the State might have, whatever deformity such an agenda might produce and whatever consequences might flow from such deformity, the Constitutional rights of the accused and the Framing Vision itself … must run a distant second to the demands of the advocacies’ agenda.

This is the result of pressure-politics and ‘deal politics’. (I will have something more substantial to say about this in the Addendum to this Post; see below.)

Henderson makes the professional observation (p.76) that “overidentification with victims can result in a loss of perspective and judgment” on the part of prosecutors (and judges and juries, I would add).

But it is precisely “perspective” that the radical feminist and victimist gameplan seeks to prevent. To ask if the ‘cure’ is more dangerous than the illness is to somehow demonstrate that you ‘support’ the violence and the ‘criminal’. This is a vital element in stirring up a Mania: you foreclose the opportunities for Citizens to exercise their deliberative and analytic capabilities, and instead substitute a manipulative whipping-up of ‘public opinion’ to lubricate whatever demands your agenda makes.

Henderson quickly balances that by noting (p.76) that prosecutorial and judicial “biases against victims can lead to unequal representation of their interests”. And I agree.

But I would say that a) you have to clearly and precisely define (i) their “interests” and (ii) what distinguishes such “unequal representation” from simply exercising legitimate and necessary prosecutorial, judicial and police discretion in conducting criminal process.

And surely some legitimate ‘consciousness-raising’ or training sessions in dealing properly with claimant-victims is apropos. But that excludes the type of cadre-brainwashing that is far too prevalent nowadays and has been for some time, whereby personnel are simply forced to accept all of the Theory and demands of the Agenda and are told that they must operate on those assumptions totally and in all cases, regardless of any reservations about a particular case or – the horror! – any Larger concerns about the Constitutional and Framing Vision’s integrity and the subsequent integrity and legitimacy of the criminal justice system as it conforms itself to the Demands of the Agenda (and of the Mania).

It’s perfectly legitimate for advocacies to conduct such dogmatic ‘consciousness-raising’ among themselves, but to then seek – with the collusion and collaboration of the Branches – to impose it on the criminal-justice system’s personnel and through media-assisted manipulation on potential jurors … this is not legitimate, at least not in the American Universe. And it cannot and will not end well for the Republic.

Henderson, again speaking from a professional experience, says (p.77) that “Even well-trained prosecutors can do more harm than good if they become overidentified with the victim … The rescuer impulse can lead to a sacrifice of critical judgment and loss of perspective, and therefore such sympathy is not necessarily good for the victim … To see oneself as a champion of victims is dangerously self-righteous and can lead to promises that cannot be fulfilled … By taking over for the victim prosecutors can console themselves as heroes, but in the process deprive the victim of autonomy and choice”.

That’s a mouthful.

I would add that this is precisely the reason why one must be extremely careful in accepting the creds of prosecutors or attorneys who flaunt a large experience in domestic violence or ‘sex crime’ trials. There is no small chance that that ‘experience’ includes the assumption of the ‘rescuer’ and ‘hero’ and ‘champion of victims’ mindset that necessarily must degrade any professional concern for the Constitutional rights of the accused.

And, of course, such a mindset – so psychologically and emotionally rewarding for the prosecutor or attorney (or judge or jury-member) – would lubricate a blithe and callow (even self-righteous) ignoring of the profound ill-consequences that are the truly portentous down-side of all this.

And I support Henderson fully when she notes (p.78) that one quite possible result of such pressure is to incite a counter dynamic: “an unthinking identification with the perpetrator” (I would say ‘the accused’).

My hope is for a criminal-justice system rooted in the search for Truth and Justice, and not skewed and deeply deranged by some pre-existing dogma in favor of either the complainant or the accused. Anything less will unleash uncontrollably anti-Constitutional dynamics which may create so much damage to the integrity of the system and the Citizenry’s deliberative capacities that, if allowed to go on for long, will create irreversible damage to the integrity and legitimacy of not only the criminal-justice system and its various agents but of the Citizenry’s basic capacities to govern the government.

Henderson then goes on (p.80) to observe that some attorneys have now (1999) specialized in representing alleged crime victims. There is very little reliable information on how they go about this specialization. “Financial rewards, however, appear to be gained in any civil action that exists”.**

Henderson concludes her article with a personal reminiscence section that I won’t discuss in this Post.

But I think it is clear that any analysis of the radical-feminist influenced Victimist Agenda – which is still very very much alive even though the actual V-R Amendment failed – demonstrates the stunning range of complications and vital derangements that are required to impose the Agenda.

And that huge and deep Questions are raised by all such agitation and ‘pressure’: How far can an American government go in deploying its Sovereign police power without essentially becoming an Alien government operating on an Alien Vision that is hell-and-gone from and antithetical to the country’s Constitution and Framing Vision?

And surely the Methods used by now highly-organized and professional advocacy organizations in and of themselves lethally undermine the civic competence of the Citizenry, while in the process also derange (to the point of delegitimizing?) not only judicial process in the civil and criminal forums, but also utterly undermine the legislative responsibility to a deliberative democratic politics in which The People (regardless of whether they ‘just don’t get it’ or not) must be accorded their proper role in the Framing Vision as governors of the government and as having an indispensable authority to weigh in on matters of wide and deep concern to the common-weal.

In that regard I invite your attention to the Addendum below, following the Notes.

NOTES

*To access this article (and it’s free and well worth the look): follow this link; it will take you to an abstract of the article. Then at the top of that abstract page click on the option for One-Click Download; that will take you to several options depending on what part of the country you are in and you can simply click on one of them and the article will come up.

**Probably the most vivid example of this is the attorneys who represent alleged victims and complainants in the seemingly sempiternal sex-abuse claims against the Catholic Church.

In that regard, I note here one very recent listing of the complexities facing an attorney seeking to defend against such charges or – far far more often – lawsuits made in this arena: the alleged abuse took place more than half a century ago; the alleged offender is dead; the accuser never reported the offense to the authorities; the accuser never contacted the alleged offender’s ecclesiastical superiors; the school where this allegedly happened no longer exists; the accuser says he never remembered the alleged abuse until he watched a TV show about molestation in the late ‘00s; the accuser says that the Penn State case has added to his pain; the accuser says he doesn’t trust people; the accuser has been married seven times; the accuser has had by his own count 82 jobs.

I do not say that this list pretty much demolishes the plaintiff’s lawsuit.

Rather I say that the defense attorney’s task – especially in a time of Mania (which is still burning strongly in the arena of lawsuits against the Catholic Church) – is rendered almost ludicrously complex. Which is a situation no attorney for an alleged victim would want to see changed.

ADDENDUM

I am putting this material in the Addendum because it deals with political theory and dynamics which, although they underlie the derangements caused by the Mania Regimes, are not specifically involved with them.

As Henderson herself notes, there is some deep connection between Victimism and radical-feminism.

I am not at all opposed to improvements in the status of women in American society.

But I am deeply concerned not primarily for the Content of some of the demands of that political agenda, but first and foremost for the Method by which those demands and that Agenda have been introduced into American culture, society, and all aspects of government.

It is the Method even more than the Content that has, I believe, profoundly damaged the health and vitality of the Framing Vision and the Constitution that was meant to embody that Vision.

This is, I believe, the elephant in the middle of the room that all current commentary – and legislative Findings and so very many judicial Decisions and Opinions – seek to ignore.

This is, I would say, blatantly obvious in, for example, the 1995 Poritz case in New Jersey and the 2003 Smith v. Doe Opinion by the US Supreme Court (both cases which I have discussed in Posts on this site).

In what is almost a magician’s trick of distracting attention from the ‘real action’, the thinking sought to restrict itself to surface elements without going near the ‘elephant Issue’: how far can this Sex Offense legislation go before it becomes an entity from an Alien and anti-Constitutional and anti-American Universe?

I offer this  entry from the Stanford Encyclopedia of Philosophy in regard to feminist political theory to indicate just to what extent most feminist philosophical thinking is opposed to “deliberative democratic process” in way or another, for one reason or another.

Whether that thinking embraces a “Maternal” approach (modeled on Carol Gilligan’s idea of Mommy At the Breakfast Table, with government being the Mommy and the Citizenry being the squalling kiddies) or an oppositional approach of one kind or another (that doesn’t trust deliberative democracy to provide the desired outcomes for feminist theory), the point is that the dynamics of deliberative democratic process are not and have not ever been well-received by the feminist agenda which – as I have said in the essay – was embraced by the Dems after 1972 and by the Republicans later in the decade for their own purposes.

I also offer this link from Wiki in regard to Antonio Gramsci, the early-20^th century Italian Communist thinker who took aspects of Marx’s and Lenin’s thought to develop his theory of “cultural hegemony”. Gramsci called for the undermining of a culture’s established traditions and institutions by means of the working class (changed to ‘women’ for feminist purposes) first developing its own culture and then forming a “historic bloc” by making whatever (temporary) alliances and compromises (again temporary) in order to take over the core institutions of a targeted culture and then subverting it to Marxism-Leninism (or feminism, as it were) from within.

For those interested, I go into these matters at more length in an essay on the legacy of Supreme Court Justice William Brennan on my other site.

As one of the most vulnerable ‘weaknesses’ of male ‘hegemonic culture’, sexual activity (and the apparently Evolutionary tendency of males to seek to propagate – which I am not here proposing as a justification for genuine sexual imposition on anybody), sexual activity no doubt provided logically a ready-made vital target for the Gramscian-Leninist strategy of attacking and weakening and subverting the male ‘hegemonic culture’.

And given the delectable political prospect of catering to (or pandering to) a ‘new and really big demographic’, the Beltway put its full faith, credit, and authority behind this – can there be any lesser word for it? – assault.

And the media, eager to increase viewership by running the easy melodramatic script of Innocent and Pure Good ruthlessly attacked (and ‘oppressed’) by Pure and Incorrigible Evil, went with the ‘if it bleeds, it leads’ gambit.

Nobody – including those who have a sworn responsibility to look into these things – cared to consider what would be the consequences of introducing and actually injecting by imposition Leninist political praxis into the American political bloodstream, and thereby deranging the entire government into the embrace of political dynamics that are not only from an Alien political Universe but are literally from an avowedly and deliberate anti-democratic (and anti-Constitutional and anti-American) Universe.

This is what lubricated the construction of the Mania Regimes.

And it is what is even now and still now continuously eroding the genuine American dynamics that are the ‘genius’ of the great American Experiment that constituted this nation’s most enduring and valuable gift to human history and to humanity.

So much remains to be done.

ADDENDUM 2

I just came across this quote that seems too relevant to pass up.

David Frum, former Bush 2 staffer and speech-writer, has come to realize that things have gotten verrrrrry bad and gone verrrrrry wrong with American politics.

Although he is writing here about the economy, his thought on how Beltway pols seem to be dealing with things is also of relevance to the SO community, as an example of a new variable and new force pushing pols away from facing up to their mistakes.

Speaking of economic problems that require a serious and effective response, Frum observes that the all he can see coming from the Beltway is basically to promise more of what they have already been doing “followed by who-knows-what and who-the-hell-cares”.

I can’t help but thinking that this is precisely the attitude taken by pols when they allowed themselves to be seduced or dragooned into supporting the SO Mania Regime. If, as Frum says in his article, they really didn’t care too much for the commonweal or the general Citizenry, but only about their own short-term political advantage, then, I wonder, how much concern could they be expected to show toward SOs, even though potentially the Mania would assault the entire male half of the Citizenry.

It apparently goes without saying that none of them cared to give a thought about the integrity of the Framing Vision or the compelling government interest in preserving it.

And, at this point, as I have said before on this site, the attitude that Frum observes in them is precisely the attitude of the Soviet nomenklatura as their long-running scam began to unravel in the later 1970s: let’s just stick around long enough to qualify for the pension and scoop up as much as we can, then get out of town – and after that it’s not our problem.

Let’s hope things haven’t reached that point in the Beltway.

But even if it has, and if the Republic of the Framing Vision goes, the Mania Regime may well remain. Because it is based in an anti-democratic and anti-Constitutional scheme of government that has now been instituted here; a scheme of government precisely designed to impose its will on a Citizenry that ‘just doesn’t get it’.

So let’s not be under any illusions about what urgent work remains to be done.

And more than perhaps any other group of Americans, the SO community has seen the awful shape of things that may come.

Let us work while the daylight lasts, as the Apostle saith.

1         http://nymag.com/print/?/news/politics/conservatives-david-frum-2011-11/

REVISITING VICTIM RIGHTS 3

As promised, I am going to continue looking at Lynne M. Henderson’s 1999 Victim-Rights (V-R) article, which follows up on the 1985 article which I looked at two Posts ago. Instructions for accessing the text of the article are in Note* below.

Henderson has identified six rationales advanced by V-R advocates in the service of their demands and agenda. She considers each of them in turn.

I had covered the first three in the immediately previous Post and now consider her final three rationales.

Her fourth point (p.32) is what she calls the “Avoiding Trauma to Victims” argument.

This, she says, “assumes that all crime victims suffer from trauma”.

And while she notes that the current versions of that proposed Victim-Rights (V-R) Amendment includes only victims of “violent” crimes, which seems on its face to mean only victims who have suffered “extreme trauma”, yet she notes accurately enough (p.33) that “the degree of trauma even violent crime produces is quite variable”.

To that I would add that the ‘extreme’, as well as the ‘violent’, are both hugely elastic terms. Whether a crime can be so characterized is completely dependent upon what one means by ‘extreme’ and ‘violent’.

And in that regard, A) we have recently seen, as I have mentioned in previous Posts, advocacy efforts – although by feminist more than victimist advocates – to have all sexually-related offenses characterized for reporting purposes as ‘rape’; which follows a slightly less recent gambit to stop referring to ‘sex offenses’ and to start using the term ‘sexual violence’ (which I consider a sly effort to ‘keep up the numbers’ and stoke the dying fires of public concern).

And B) there remains the abiding problem of subjective-reporting and what I often call the ‘spectral evidence’ problem seen as far back as the era of witchcraft trials: the ‘evidence’ consists of completely interior experiences, inaccessible to any observer, which are reported or at least claimed by the afflicted victim.

This is a problem that was resurrected all over again in the legal forum when the feminist-victimist advocacies in this country insisted that the ‘stories’ told by the victim, even if uncorroborated by any observable evidence, had to be considered of probative value. (And, worse, even the mere recitation of those ‘stories’ in the presence of a jury or trier-of-fact would have inevitable emotional consequences that would color attitudes against the accused, regardless of the absence of corroborative evidence or the presence of factual evidence in the accused’s favor.) This was a built-in plus for prosecutors and the government police power, overcoming any ‘traditional’ American concerns for a ‘fair trial’ and the classic presumption-of-innocence (the accused is now considered presumably guilty and therefore doesn’t deserve one).

The insinuation of all this into the justice system, especially in SO matters and trials, was a major tactical boon for prosecutors, It was fuelled by the radical-feminist presumption – imported improperly from civil and regulatory law into criminal law, including as well as the background assertion that all (heterosexual) sex is an act of violence by the male against the female ... which is an assertion that is grossly dubious on its face  – that the hegemonic ‘male’ can legitimately be presumed to be involved in sex-crimes against any by-definition presumably-‘oppressed’ female; this assertion utterly undermines the principles of the American legal Universe. (And pretty much dooms the entire human project to, among other things, a declining birth-rate and accelerated progress toward self-extinction.)

And that consequently the emotional balance of the trial is reversed – against the accused from the get-go.

And also, this ‘traumatization’ or ‘re-traumatization’ gambit reflects the feminist-victimists’ lethal insinuation of the dynamics of therapy into the dynamics of law, the dynamics of the therapy-office into the courtroom.

It is sound therapeutic praxis to allow the patient to tell his/her ‘story’ to the therapist. As an initial step in the process of therapy. From there, in the therapeutic process, the competent therapist’s job is to discern for him/herself the mix of factual-accuracy and the patient’s interior processing that have been blended together to form the initial presenting ‘story’, the patient’s view of what has happened to him/her. And while that is going on, the therapist will help the patient understand his/her own processing and functioning, with an eye to ultimately supporting the patient’s capacities for resilience and understanding so that the patient can work-through the problematic experience with enhanced internal capacities and thus move forward in much better shape than when s/he first came into the office.

In the process the competent therapist must be careful to ‘hear’ the deep interior dynamics of the patient without necessarily being co-opted into affirming the patient’s initial presenting-version of the ‘story’. You don’t want to instantly challenge the ‘story’, but you don’t necessarily allow yourself to believe it whole-hog right off the bat.

This is hell-and-gone from the pandemonium of ad-hoc ‘therapy’ that blossomed after the ignition of the advocacy-recovery movement, where the ‘therapist’ (not necessarily well experienced or educated) comes to the patient already presuming certain dogmatic axioms – for example, that any sexual experience must by definition be hugely traumatizing and that any female must indubitably have experienced sex-trauma because ‘all sex is rape’.

This is going to seriously derange any possibility of genuine therapy and will not bode well for a substantive improvement in the patient’s coping abilities or the enhancement of resilience.

I support all competent therapists in this demanding therapeutic endeavor, though you can imagine how many ‘therapists’ (especially at the lower and more informal levels of the therapist-spectrum) are really nothing more than cadres-in-disguise, stoking the fires of some particular advocacy agenda even if they believe they are ‘helping’.

BUT then to transfer either the legitimate therapeutic principles or the corrupted ‘advocacy-therapy’ dynamics to the courtroom is hugely destabilizing. Because where the purpose of therapy (ideally) is to help the patient achieve a higher level of life-functioning by working-through issues that may, at least in the beginning, have distorted the patient’s ‘story’ or self-narrative, and so you don’t immediately make a major point of judging the veracity of all elements of the presenting ‘story’, YET the dynamics of the courtroom precisely require the most purposeful and intensive focus on the  incisive and acute determination of the demonstrable truth of the ‘story’ that constitutes the basis of the Complaint against the accused. In the courtroom you have to follow the bouncing-ball no matter where it leads, and not keep trying to tilt the field to make sure it always hits the accused in the face.

So whereas, to use a trendy mantra, you don’t want to be ‘judgmental’ as a therapist, you most certainly need to exercise some robust and competent judgment as a judge (or jury-member).

Otherwise, why have judges and juries and courts in the first place?

(Of course, the Correct Mania and advocacy come-back to that Question is: to bring ‘closure’ (and a satisfying jolt of vengeance) to the alleged victim without too much time wasted or embarrassment inflicted on the alleged victim in the process of trying to find out the ‘facts’ of what actually happened. In other words, the victim’s ‘story’ should be more than enough to trigger the deployment of the Sovereign police-power against the accused.

I tremble when I think of how many generations of law-school students and law-enforcement personnel have been raised, now, in this sort of matrix of assumptions. Yet this is not only ‘not your grandfather’s’ legal Universe, it is also not the American legal Universe. It is, indeed, precisely an anti-Universe to the American legal Universe, no matter how much you try to put lipstick on the monster by calling it mere ‘reform’ or – treacherously or witlessly – ‘re-balancing’.

I also note that this ‘traumatization’ gambit is no doubt receiving much support from those irrepressible cottage-industry entrepreneurs recently thrown off the gravy-train through the general abandonment of ‘repressed memory’, and who have now re-badged themselves as ‘traumatologists’. To use a dated image, a Yugo is a Yugo even if you put a Cadillac crest on the hood and weld a pair of classic Caddy fins on the back.

If you only have a hammer, then every challenge can only be viewed as a nail. Just as this hasn’t worked well in trying to resolve foreign-policy problems by sending in the boots-on-the-ground and the drones, so it hasn’t worked out well – and has created equally frightening amounts of damage – in attempting to deal with criminal law and especially SO matters.

As Henderson notes (p.32), there is very little research that actually validates the presumptions that all victims inevitably suffer extreme trauma in every case. Or that all victims possess almost no resources of resilience and mastery and merely remain helpless and wrecked as human beings. Some, she notes, “recover quite rapidly”. (And by saying this neither she, nor I, are trying to subtly insinuate that ‘crime is OK because it really doesn’t hurt people much’.)

Even more acutely, she observes (p.32) that there is no single emotion has been demonstrated to predominate in all victims. And that in the short term at least, emotions can oscillate widely along a spectrum.

And thus even more acutely, that certain elements of being on the receiving end of a crime – regardless of the ‘traumatization’ – tend to skew the recipient’s emotional and psychological predisposition, at least in the short term.

Thus (pp.32-3): “In turn the effects of trauma can render victims, particularly when close to the time of trauma, exquisitely sensitive to the reactions and actions of others, including police, prosecutors, defense lawyers, and judges. Perceptions of danger and betrayal are magnified, so that even the best-intentioned actions or statements of others can be perceived as betrayals or assaults; anything less than sensitive to the individual’s experience can be perceived as a major problem with ‘the system’”.

This should hardly be news to anyone. Even a child who has fallen off a bike or been thrown off a horse or a driver who has had even a minor accident will find him/herself a little unpleasantly sensitive at the mere sight of a bike or a horse or at the prospect of getting back behind the wheel.

(Of course, competent therapy will accept that sensitivity and seek to help him/her to ‘get back on’ or get back behind the wheel. This might be characterized as a Daddy’s-approach, whereas the Nanny-state approach is to wallow (used as a transitive verb here) the patient in the ‘trauma’ – which is neither a competent approach to genuine therapy nor a workable basis for a system of jurisprudence and law enforcement or – for that matter – for a system of government.)

Alternatively, Henderson continues (p.33), the victim may simply want to “speed things up – to get it over with – in the hopes that the anguish will go away”. Thus some victims may demand that they not be ‘rushed’, while others may demand that things be moved along quickly and without delay … it is impossible to construct a legal system that can accommodate all of this emotional turmoil. Let alone, as Lawrence Tribe demands as quoted in the prior Post, to institute a legal system that centers itself on the mollification of such turmoil.**

And, Henderson then adds, addressing that ‘turmoil’ is properly and most efficaciously the job of competent therapy, not the role of the legal system (which in the American legal Universe is tasked with profound responsibilities of its own).

And furthermore (p.34), there is the fact that many frustrated victims and families of victims take out their rage on the accused’s defense attorney. But does that mean that the defense counsel should be removed in deference to their ‘feelings’? Henderson says “surely the rage at defense lawyers ought not to be the basis of depriving defendants of effective assistance of counsel, even if it [i.e. the rage] is entirely understandable”.

I would add that such understandable passions, oscillating perhaps widely to generate great internal turmoil, cannot be allowed to trump the compelling state interest in providing fair trials for the accused by undermining evidentiary requirements or Statutes of Limitation or – as we have recently seen in the military justice system – even by formally reversing the presumption of innocence in SO cases so that it is against the accused and in favor of the alleged victim. (A stunning and profoundly alarming reality for which Congress is to be blamed even more than the military-justice lawyers.)

And, as Henderson goes on to say, victims of non-criminally-induced trauma, such as natural disasters, receive no such system-deforming ‘consideration’ and yet such persons manage to pick up and move on. What, really, is so special about the trauma – such as it may be – experienced by crime victims? (And I note here again that already by 1999 the definition and common-usage has been slyly expanded by the dropping of the 1980s-era qualifier ‘violent’.)

Her fifth point is what she calls the “Therapeutic Rationale for Victim’s Rights” (p.35).

I have discussed many therapeutic aspects already in the Post, but she makes several very useful points.

She notes (p.36) that while some States, such as California, have taken rather significant steps – such as notice of hearings, the right to be involved with any plea-bargaining, restitution from the perpetrator (this is in addition to any State compensation to the victim), as well as harsher sentences and an ominously increased post-arrest detention praxis (the alleged victim did not feel ‘safe’ if the accused was released on bail) – yet that after 15 years of such a regime “the victims are no ‘happier’ for it”.

“Perhaps”, she thinks, “because it cannot take away the trauma” (p.36). This is a hugely significant point. The ‘therapeutic rationale’ of dragooning courts into providing ‘closure’ cannot demonstrably be shown to provide such ‘closure’.

And I would say that that reality flows directly from several facts.

In the first place, we don’t know just how much ‘trauma’ requires such ‘closure’. It depends on the individual victim’s personal capacities for resilience.

In the second place, the base of the fire – to use an image – is not the alleged criminal act itself but rather the ‘experience’ of the crime. Which varies among individuals: some will move forward and perhaps quickly, and others will not do so or will take more time. The emotions of some individuals will be deeply engaged, and for others such is not the case. This is vastly too much uncertainty for any court system to formally handle, and for any legislation to effectively address in mandating ‘changes’ and ‘reforms’ to court process and – even more ominously – to law itself.

In the third place, it remains a huge Question just how much a court-finding can do to assuage a primarily interior emotional condition. Emotional wounds require emotional healing.

And, I would say,  in the fourth place, connected to the third, no competent therapy will settle for the victim becoming fixated in so corrosive an emotional ‘solution’ as vengeance. Vengeance is not the stuff out of which to create the basis of a healthy and constructive Stance toward life. (And I recall even as far back as Timothy McVeigh’s execution for his utterly indefensible blowing-up of the Federal Building in Oklahoma, that some relatives of those killed who were outside the prison on the night he was executed, said that his death was not really going to make them feel better for their loss – they received almost no coverage from the media. And I expect that there may be numerous legitimate victims of crime who feel that way.)

Additionally, even if a legitimate victim is immersed in a desire for vengeance for some time after the crime, there may well come a time when the vengeance subsides and the person is then afflicted – retraumatized, if you will – by a type of ‘buyer’s remorse’: as the acid heat of vengeance washes away, they may suddenly feel remorse at whatever damage – especially if it was excessive – that their role in the court process helped inflict on the convicted defendant. You don’t hear much about them, but human nature and dynamics would predict their existence, and perhaps in substantial numbers.

Furthermore, she asks (p.36), who is to be accorded the status of ‘victim’ such that s/he would enjoy the rights demanded by the proposed V-R Amendment?

If it is only the victims of “violent crime”, then there will be great pressure on legislatures to expand the definition of “violent” (akin, I note again, to the current efforts to re-define ‘sex offenses’ as ‘sexual violence’and that all sex-offenses be reported as 'rape' and considered as serious as rape).

And this raises instantly the matter I have mentioned in several prior Posts: how do you go about formally defining the ‘harm’ caused by the alleged ‘violence’? If you are going to limit the definition only to observable and demonstrable harm, then what criteria shall a law set forth or a court employ? And there will surely be great pressure by numerous elements to have the parameters of that observable harm made as broad and vague as possible.

If on the other hand you allow ‘harm’ to be defined as internal, such that only the sufferer can actually know it, then you have effectively removed any possible limits to harm from the get-go. And, of course, you have opened another frightful can of worms insofar as actual victims might in their agitation exaggerate their claims or duplicitous claimants might speciously describe their internal harm secure in the knowledge that nobody can ever contradict them and a ‘victim-friendly’ court would not or could not even try to ascertain the truth of their claims.

And what of ancillary persons? What of relatives or friends of a victim? (Or, in the case of a death, the ‘survivors’ – however defined.) How much weight should be given to their ‘stories’? Especially, again, when on the other side of the balance are the Constitutional guarantees in favor of the accused, including the presumption of innocence? Should, for example, the ‘stories’ of relatives be allowed to trump profound and vital Constitutional guarantees? Neighbors? Acquaintances? If relatives, to what degree of relationship should such trumping authority be provided? Or – if it can be imagined – ‘potential victims’, which could widen the field almost to infinity.

This stunning complexity is only intensified with the introduction of the concept of ‘co-victimization’ (p.37), whereby an individual who is not the actual victim of a crime is yet endowed with a formal status as a ‘victim’ because of the consequences (however defined) of the crime against the actual victim. Is, for example, an employer a ‘victim’ because of the loss of the services of an employee?

And what of victims who are also offenders (p.37)? Do they have any status as victims at all?

In most 1970s and 1980s State victim-compensation laws, this powerful conundrum is resolved simplistically and by government fiat: if you are or perhaps have at any time been a perpetrator (and it doesn’t necessarily have to have been proved in court) then you cannot ever claim compensation from the State as a victim. The ridiculous (in my opinion) assumption being that once you are a Perp then you can never be a Victim; a goat can never be a sheep – which is an ominously shocking example not only of legislative incoherence or cynicism, but also establishes the government as dividing the Citizenry into permanent status-classes. This, I would say, was a direct antecedent of the 1990s legislative erection of the Sex-Offender as a permanent and legally recognized (albeit for negative purposes) ‘class’ among the Citizenry. One cannot but think of the ‘Kulaks’ of Lenin’s and Stalin’s era, or the Nazi era’s ‘Eternal Jew’ – which is not something you would expect in the American legal (or civic) Universe, but that’s where things have gone.

I would also add that whereas in the victim-compensation laws, where authorized victims receive State monies in compensation, there is a government interest in reducing the number of potential payees, yet there was no such restraint in the SO Mania era, when it would (up until very recently anyway) ‘cost the government nothing’ to widen the SO definition as much as it pleased. As in the Prohibition Craze or Mania, it may take a Great Depression for the government to sober up (sorry – couldn’t pass up the image) and consider just how much its ill-considered legislation was going to cost.

But it all gets even more complicated.

“When does victim status attach?” asks Henderson rightly (p.38). At the moment of accusation made to the police? At the moment of arrest? What happens to that status if officials determine that prosecution won’t proceed? (The advocacy solution here has been to push for laws that remove police and even prosecutorial rights of discretion – mandating arrest and prosecution simply on the basis of the type of charge the alleged victim makes.)

Ditto in the specific matter of rape victims (p.39) where “Rape cases remain very difficult to prosecute even in the best of circumstances. Given the skepticism that exists about rape charges – and the mixed evidence as to whether the false reporting of rape is higher than other offenses – a woman who is a rape victim may not be able to persuade authorities that she is indeed a victim, much less see her case reach the point where a constitutional right attaches”.

I think that the radical-feminist and victimist efforts to somehow overcome the inherent legal opacity – impossible for any eye but that of God to actually pierce – of any sexual encounter except the most clear and classic stranger-rape has done more to derange the American legal system (and the American conception of ‘truth’ and ‘reality’ and the ability to perceive them) than any other legal complexity in our history, including slavery in the antebellum era.

That “skepticism” – so loudly limned in the beginning as merely self-serving patriarchal insensitivity and obstruction – has turned out to be what jurists and elders around the world and throughout history have always deemed it to be: the only conceivably workable response of any humanly-administered justice to a hugely fraught and almost impossible-to-adjudge encounter.

An encounter that could only lead justice-authorities into an impassable swamp should they try to tame it; in fact, pretty much a sort of conceptual Vietnam where outside forces, no matter how numerous or greatly equipped, and no matter how much they deployed almost unlimited  ‘violence’ to compensate for lack of any more effective action, were doomed to wreck themselves.

Which, especially as we have seen in the SO Mania Regime, is precisely what has happened: not only the legitimacy and integrity of language and rational thought processes, but also the  legitimacy and integrity of law-making and legislating, and of law-enforcement and the judicial process, and even the authority and integrity of the Framing Vision and the Constitutional guarantees themselves, have all been grossly weakened and deformed in the apparently endless attempt to develop and carry out ‘the’ strategy that would conquer the quagmire-world of assertion and counter-assertion.

And, as in Vietnam, the amount of almost unlimited conceptual ‘violence’ that has been ‘authorized’ against the Problem has simply hastened the wreck of the forces assigned to carry it out. The integrity and authority and legitimacy of just about all the above-mentioned ‘forces’ of the government have continually served only to deform those forces, perhaps to a point now beyond any hope of recovery.

And when I say that, I no more mean to approve actual rape than I would mean to approve of Communism simply because I might note that stamping it out in Vietnam proved an impossible task for US forces.

Nor can it thus be asserted (as Henderson observes through the series of footnotes on p.39) that such very real and persistent skepticism constitutes ‘discrimination’ against the rape-reporting party. Such skepticism is rather a reflection of the abiding human awareness that this claim poses a literally impossible challenge to any eye but that of the Divine (or perhaps the recording instruments of a Federation starship of the Galaxy-class, permanently stationed in low orbit above Earth and constantly scanning for incidents of rape – but even then …).

It is also, by the way, in one of those footnotes (No. 73 on p.39) that she quotes one of the V-R authors who acknowledges that in the German legal system, given the existence of such skepticism, sexual assault-claimants “tend to see the trial as their trial and want to participate in the trial through counsel”.

In other words, in the German system the solution would be to make the trial a three-way affair, with a defendant represented by counsel, a State prosecutor, and a complainant who would also have her own counsel lest (I imagine) she inadvertently incriminate herself in the process of cross-examination.

The path as it has developed in this country is different: rather than introduce the complainant as a formal third-party with counsel (such a radical departure would seem too unfamiliar to be mindlessly accepted by the public and would give overt warning of both the depth of the changes required in the American legal system and the clear possibility that the complainant might be caught out publicly in a lie or perjurious statement), the strategy here has been to simply undermine the Constitutional guarantees and principles protecting the accused while either spinning them as mere ‘reforms and re-balancing’ or generating enough public passion through selective and inflammatory victim ‘stories’ (and a melodrama-seeking media’s reporting of them) so that the public would accept the new derangements without giving them serious thought.

And that has led necessarily to the legislative and judicial Branches betraying themselves, and to the necessary malformation of law-school students, who had also to be formed to see the deformations as ‘progress’ and ‘reform’ with no ill-consequences worth worrying about.

Somewhere in this country are the legislative, judicial and law-school equivalents of those Vietnam commanders and their ‘experts’ who figured that they could pull the whole thing off simply by managing public perceptions and sending more forces into or over the jungles.

But as the ancient Korean maxim so bluntly yet wisely puts it: Kono itta, san itta – beyond the mountains there are … mountains. And the same is true for the swamp-jungle mountainous terrain that confronts any would-be human adjudicators of all but the most obvious and demonstrable sex cases.

And again, in this country it has been the strategy to overcome this perennial reality by insinuating the presumption that in all sex cases, the male (almost always) can simply and reliably be presumed to be the incorrigibly aggressive perpetrator; so that if there is a sex complaint, and there is a male, then one can simply presume the male’s guilt and thus ‘fly over’ the Problem and get on to the highly-touted, closure-bringing vengeance bits.

Additionally, Henderson notes (p.40) that what is called ‘fairness’ really boils down to the specific victim’s “perceptions of fairness” – which opens up yet another sempiternal can of worms since no systemic ‘reforms’ can be guaranteed to work for every victim, and yet any victim feeling herself unfairly-treated can easily and simply throw the entire matter into some form of further adjudication, perhaps ad infinitum.

(And again, this gambit echoes clearly the regulatory policies demanded by many government agencies in workplace sexual harassment law, whereby it is the complainant’s perception of harassment – and not any substantive and specified list of actions or words – that triggers and ‘justifies’ a complaint. To which I also add as an aside that it seems hardly surprising that in the same decades that all this sort of stuff was being enacted, major employers quietly yet vigorously sought to off-shore jobs away from a set of governmental regulations that could so easily derail actual Production.)

And in that regard, as a simple matter of housekeeping, how many times and at how many stages of the process, must a complainant be allowed to tell her ‘story’? (p.41) And if that question sounds ‘insensitive’ then you get a clear grasp of a ruinous dynamic operating in this whole thing: the more you try to work out the details, thus revealing the unworkable nature of the demands, the more ‘insensitive’ you putatively prove yourself to be. This is a hall of mirrors, and one deliberately set up to confuse or intimidate or otherwise derail and prevent any competent analysis of the demands.

Yet some scholars do argue that telling-the-story is “cathartic and healing” for a complainant-victim (p.42). Yet, those same scholars note, in countries such as Germany that allow this sort of thing, the privilege is rarely exercised “except, interestingly, in sexual assault cases”.

Interestingly indeed – and precisely why that should be is worth very careful study in itself.

Yet the same scholars assert (p.43) – as did Lawrence Tribe here – that “a primary goal of a criminal trial might be to provide a cathartic and beneficial effect for victims”. Which is interesting, but hell-and-gone from the American legal Universe.

Which Henderson works toward, noting (p.43) that however more victim-friendly the German system might be (and its efficaciousness for victims has yet to be established by research), the German system is very different from the American system: it combines the tort (civil) action with the criminal action, it is non-adversarial, has no juries, and relies on the judge to be investigator as well as trier-of-fact.

And it is precisely this concentration of the decision-making power that holds back or unleashes the Sovereign police power that the American legal Universe was designed to distribute among several different ‘branches’ (i.e. defense, prosecution, judge, and a jury of peers). Concentration of power is not something the Framers very much trusted. Advocacies, on the other hand, seem to like concentration-of-power very much: it’s a lot easier to get your demands met if you can get one centralized power to go along with you, even if the majority of the public would not if they had all the facts about what you wanted to do.

Thus ‘advocacy’ and ‘genuine democratic process’ are not easily reconciled. And they most surely are not two words for the same thing. Not hardly.

Nor is there any actual demonstrable proof that “testimony therapy” actually works (p.44).

In fact, she quotes one author (p.44) – Judith Herman, of all people – who notes that many victims do tend to see the telling of their story as sort of a therapy or even, in a more “magical” way, an “exorcism”. But that author notes, performing such exorcisms is hardly the function of a court of law, and furthermore even the purpose of genuine therapy is not “exorcism” but is rather “integration” of the difficult experience through the power of one’s adaptive resilience.

Henderson also notes (p.45)  – vitally relevant in a movie-educated nation such as this – that the Hollywood myth of the One Great Cathartic Moment that resolves all the hero’s problems is almost pure fantasy. And thus the final scenes from Good Will Hunting (where the eponymous hero, after a single recitation of his horrible abuse as a child, rides out into the sunset totally nonviolent and ‘healed’ to go find his girl) is right up there as a dangerously mis-informative fantasy along with the equally manipulative bit in the film Mystic River that a single instance of (non-specified) sexual abuse as a child instantly and permanently turned what would have been a good kid into a life-wrecked murderous monster.

There may be – from time to time – an occasional ‘breakthrough moment’ in genuine therapy, where a particular blockage is resolved and one can proceed to the next step. But there are no Great Single Instantaneous Healing Events in genuine therapy; indeed, if a patient claims to have had one, the first task of the genuine therapist at that point is to apply the brakes gently to take the vehicle out of the skid.

If Americans had more of a sense of just how much their unexamined structuring of time and events has been formulated according to the requirements of the shooting-script for a Hollywood film, then a whole lotta things like Vietnam and the SO Mania might not have so easily happened. Real life isn’t so quick to develop through its stages, events take longer to unfold and don’t always stay on track, and there isn’t always a completely happy ending. Not hardly.

Furthermore – and it’s almost embarrassing that Henderson has to say this but that’s how far American culture has been deranged – she notes (p.46) that “the essence of law includes judgment” and (I would add) being a bit judgmental.

Thus what elements of a story may seem of vital emotional importance to a claimant-victim may not actually have any relevance for establishing the legal facts necessary to a case. The Judge is neither Therapist nor Mommy at the Breakfast Table and (again, it’s embarrassing that she has to remind folks) people should sorta realize that.

And (pp.45-7) most surely, “the fear and rage the victim may feel toward the defendant does not mean that the defendant’s rights should be denied”. And again, if it seems a bit odd to hear that, then you have a rough measurement of how far things have become deranged around here in the past few decades.

More formally, she points out (p.47) that “without radical changes in the law of crime, criminal procedure, and evidence, constructing a procedure in which free-form statement, uninterrupted, may take place, is difficult. At a minimum, the proceeding must be one at which the guilt of the defendant is not at issue and the rules of evidence do not apply. Otherwise the Sixth Amendment’s Confrontation Clause should apply, as should the rules of evidence.”

Some States try to navigate this mess by allowing the victim to make a statement in the sentencing rather than the trial phase (which presumes the accused will be found guilty), but if the statement is made before the judge actually passes sentence, than the statement is not unchallengeable by the defense, since it presumably would make some difference in the length of sentence or amount of restitution. And if the victim’s statement is made after the sentence is passed, then it is so obviously anti-climactic as to be quite possibly embarrassing to the victim (sort of like trying to sing the national-anthem after the third out in the ninth inning or the game-winning run has been completed).

And (p.49) while a State legislature can indeed assign the victim some role or weight in actually determining a sentence, it is still difficult to legislate exactly what criteria must be met. California will allow such weight to a victim but only “according to the vulnerability of the victim”, which instantly implicates some form of evaluative judgment as to whether such and such a victim is or is not sufficiently ‘vulnerable’ (whatever that means under these circumstances).

And finally, Henderson’s sixth point is what she calls “The Right to Corrective Justice Argument” (p.50).

By that she means the victim has been harmed by the action of an accused, and the accused should now have to pay for the harm caused. All well and good.

BUT, she quickly points out, that is precisely what the tort system is for (the ‘lawsuit’ path, through civil rather than criminal law). Thus that the role of the criminal court is to adjudicate according to the larger interests of the State and the commonweal, and the role of the civil court is to adjudicate as to the specific harms done to the complainant-victim.

A rather reasonable and effective arrangement.  

Amazingly, this is pretty much the way it has been all along – until that 1980s ‘conservative’ push to somehow strengthen the government’s hand against the accused, then ominously reinforced from the Left by the radical-feminist advocacies’ realization of how useful such (anti-Constitutional) engorgement of the prosecutorial position and the police power could serve their own sempiternal war on men, sex, and other things. (OK, admittedly, you could almost get a movie script out of this – but be warned in this spoiler alert: it will not have a happy ending.)

This was not sufficient for the purposes. Henderson thinks (p.51) that it was considered insufficient because even though the civil case is indeed focused on the complainant’s allegations, it takes money to bring a lawsuit and on top of that so many defendants are “judgment proof”, meaning that even if the civil court finds for the complainant and awards monetary ‘damages’ (civil courts cannot imprison or find a defendant ‘guilty’), most defendants do not have and perhaps never will have the money to pay the mandated sum to the plaintiff-complainant-victim.

And that’s true enough. But I would go much further and assert that the whole purpose of the Right’s ‘valorizing’ the victim in the first place was precisely to overcome the Constitutional roadblocks to the prosecutorial position and the Sovereign police power that apply only in criminal cases. And that the whole purpose of the Left’s buying into the strategy was to demonize and seriously take a bite outta men, males, sex, and other things in order to open more space, in its way, for the larger radical-feminist agenda of re-shaping society and culture according to its own vision of sex and gender roles.

Thus the SO Mania Regime.

Nor is ‘harm’ the basis for punishment in the criminal system the way it is in the civil system (p.52). You can be found guilty and punished even if your proven crime caused little or no harm to anybody in particular, because there are other, even Larger reasons why law-breaking must be punished. For example, you can be found guilty of attempted murder; even if nobody was actually murdered (or perhaps even knew that they had been targeted for murder), you must be punished for that attempt.

Nor might a robbery victim be physically harmed nor seriously emotionally damaged, but that does not therefore make the robbery a ‘trivial’ crime.

But all that meant was that the V-R strategy had to somehow bring ‘harm’ into the criminal-system’s operations and objectives, where it simply becomes impossibly complicated to factor in (even before you get into matters sexual).

Henderson has a seventh section that does not seem so much a further Argument as it does a general assessment of the entire V-R Amendment gambit and in a larger perspective of the legal strategy and validity of entire V-R movement itself.

There are two give-away aspects of the V-R gambit that seem to clearly indicate – contrary to the impression that its supporters would like the public to form – that the whole thing is indeed precisely aimed at somehow weakening the Constitutional protections afforded the accused.

First (p.54), there is the insistence that in order to override the putative rights of the victim a ‘compelling state interest’ must be demonstrated. In other words, if the Amendment were to be passed, any State that did not want to make the necessary changes to its criminal law and procedure would have the burden of demonstrating some compelling interest. (You would think that respecting the Framing Vision as embodied in Constitutional protections would rather clearly and easily qualify as a ‘compelling state interest’, but not in the eyes of V-R advocates and supporters … which is a huge indictment of the whole thing in the first place, I would say.)

Second, Henderson points out (p.54) that up to that point when she wrote the article in 1999, supporters had staunchly refused to add to their proposed Amendment any language to the effect that “the Amendment does not detract from a defendant’s constitutional rights”. Which, she rightly infers, demonstrates that the Amendment is indeed precisely intended to detract from a defendant’s Constitutional rights.

She notes further (p.55) that many of the V-R supporters have voiced dismay at the Warren and Burger Courts’ decisions in regard to the Fifth and Sixth Amendments (in support of the rights of the accused), and particularly the exclusionary rules (excluding evidence improperly obtained or otherwise unreliable … and it is in this regard that we still see today in the SO Mania regime so many calls for ‘extending the Statute of Limitations’, which excludes evidence after a certain period of time has passed since time corrodes both physical evidence and the testimonial reliability of witnesses).

And as noted above in this Post, some supporters even oppose the American adversarial system generally, preferring – Ach! – the German system.

Henderson specifically singles out (p.57) Sen. Dianne Feinstein as among those Amendment supporters who often recited a list of Constitutional rights of an accused as if they were some sort of clear and indisputable proof that ‘criminals were being coddled and the government obstructed and the victims re-traumatized’.

Using what for her is uncharacteristically vivid language, Henderson says (p.57) that “the injustice of granting rights to scum – criminals who do great harm – and not to victims, is rhetorically and visually powerful”. (It would be visually powerful only if a suitably telegenic victim or photographs or ‘survivors’ were put before the cameras, perhaps alongside the politician – that’s the way it’s done in these things.)

But as she paraphrases (p.57) one witness in the Amendment’s congressional hearings, “the Constitution’s purpose was to limit federal government, not necessarily to protect criminals”.

And as I would add, it was to provide protections available to all Citizens against the improper deployment of the Sovereign police authority; any accused deserves a fair trial, therefore, because we all deserve a fair trial. (And given the combined voracity of the Nanny State and the Security State, and the willingness of legislators to defer to those interests, a whole lot of us may wind up being defendants in our lifetime, and most certainly by this point just about every one of us is already in one way or another guilty of a Federal if not also a State crime – perhaps a malum prohibitum rather than a malum in se, but a felony level offense nonetheless. Let alone all the registered SO’s and those who – whether they are aware of it or not – technically became Federal fugitives when Bush signed AWA into law in 2006.)

Further, she notes (p.59) that V-R claims that they merely wish to effect a re-balancing of victim ‘rights’ vis-à-vis a defendant’s rights are specious; what the criminal court is designed to balance is the rights of the defendant and the rights of the State, and, she adds nicely, even then the criminal courts often balance them “to the State’s benefit”.

“Hatred of the Warren Court’s criminal procedure jurisprudence (or the adversary system) masked as support for victim rights is cynical in the extreme”, she forthrightly pronounces.

And to that I would add that hatred for ‘men’ or ‘sex’ or whipping up such hatred through manipulative demonization of the straw-man construction called the Incorrigible Monster Stranger Sex Offender is and always has been not only cynical but treacherously lethal to not only the American legal Universe but the entire American civic polity and its commonweal.

She then allows herself the (accurate) observation (pp.60-1) that in the matter of these classic types of V-R arguments “empiricism plays no role” because such evidence about the necessity and validity of such protective walls as exclusionary rules (widely attacked through both the Domestic Violence and SO Mania Regimes) or the claim that tampering with them has “minimal effect” on the outcome of a trial (if so, then why the heck implement such tampering in the first place?) and "does not fit with the belief system that criminals are regularly turned loose on technicalities”.

And this is even more corrosively intensified in SO Mania praxis, both in its publicity and actual criminal-process aspects. It serves the interests of both Right and Left in this Thing that SO’s (so often males) are perceved to be getting away with awful things; what neither side would like you to consider is What do these strident advocates think of the Constitution/Bill of Rights itself? They would rather not have to answer truthfully: it is “quaint” at best and outmoded at least. And as I have often said, they were thinking that long before Alfredo Gonzales let the cat out of the bag talking about the Patriot Act in 2006.***

And she asserts (p.63), again rightly, that it is a myth that victims cannot ‘heal’ until the criminal case against ‘their’ offender is successfully concluded. There is no evidence for this and it is conceptually repugnant to sound therapeutic principles.

Thus (p.64) the ancillary claim that victims have a ‘right’ to “final resolution” of their cases. What about further appeals beyond the trial phase? What if a trial-court conviction is overturned on appeal? What then?

Such are the stunningly complex – some of them even nonsensical – burdens placed on the criminal justice system and the American legal Universe by the V-R demands.

In a final analytic section Henderson discusses rape and domestic violence laws particularly.

I will consider them in my next and final Post on Henderson’s article.

NOTES

*To access this article (and it’s free and well worth the look): follow this link ; it will take you to an abstract of the article. Then at the top of that abstract page click on the option for One-Click Download; that will take you to several options depending on what part of the country you are in and you can simply click on one of them and the article will come up.

**It goes without saying that this entire mishmash and the ensuing welter of ‘sensitive’ changes lie dangerously open to manipulation by anyone who cares to use them in that manner. This is what I would say is the ‘moral hazard’ of all such ‘reforms’ and it is not small.

The Correct advocacy solution to that has been to introduce from the get-go of feminist-victimist agitation a Manichean and melodramatic presumption that the Victim is always Pure and Innocent and thus not only deserves much consideration but must be presumed incapable of lying or manipulating; while the Perpetrator is to be presumptively considered as not only incorrigible and Evil but also as the font of all lying and deceit – against which any Constitutional cautions in favor of the accused can only be considered a pandering alliance with Hell.

***This is a link to a recent Post on my other site about Justice Brennan’s role in sidestepping genuine democratic process in the imposition of purportedly ‘liberal’ agendas and how that legacy has damaged the Constitutional ethos. It will provide, for those interested in such matters, a deep-background look at how the Supreme Court was brought to the place where it could consider, among other things, the SO Mania Regime to be a Good and Constitutional idea.

ADDENDUM

I don't want to bring overtly political matters into the text of a Post on this site, so I am putting this here thought down here:

I think it very possible that the post-9/11 tropes about both 'protecting Americans from becoming the victims' of Evil terrorists and also of making the eradication of Evil and tyranny a major objective of national defense strategy and policy were a direct echo of the claims of V-R and Mania Regime supporters' assertions a decade or two before, that by the laws they were enacting they hoped to do the same thing in regard to sex offenses.

These things have a way of 'migrating' in the hothouse of the Beltway, and gambits that seem to have succeeded in one arena are often taken up in other arenas later on in the hopes that they will also 'work' there.