MILITARY SEX OFFENDER REGISTRY

A petition is now circulating online urging the Secretary of Defense (SECDEF) to create by fiat a national military sex-offender registry. It has, as of July 11, about 89,000 supporters.

This is not a new idea. Late last year Rep. Jackie Speier (D-CA) submitted a short and quickie Bill (H.3435, see my Post )  – based, but of course, on amazingly huge ‘numbers’ of rapes and sex-assaults – demanding, among other things, a military sex-offense registry. That Bill has been referred to a military-affairs subcommittee.

In the 2012 military budget, which includes some very extensive (and apparently incoherent) definition-changes to ‘rape’ and ‘sexual assault’, there is no mention of a military sex offender registry.

Speier’s Bill calls for the military to retain an SO database of those convicted of (its increasingly engorging) sex-offenses, although this database would be available only to military investigators.

But then it also calls for the Department of Defense (DOD) to forward all information about military-convictees to the Department of Justice (DOJ) for inclusion in the National Sex Offender Registry.

Now this is a ticking timebomb of no small proportions.

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

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

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

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

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

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

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

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

Given the functional failure of the Adam Walsh Act of 2006* - which overnight would have hugely increased the number of technically-defined SOs in their jurisdiction – States are not going to want to add to their already costly and burdensome SO registration-notification problems (and they are legion) by now taking on the hugely dubious and complex challenges of adjudicating the ‘eligibility’ of those ‘convicted’ by courts-martial under the queasy aegis of the military justice system.

But it’s a tough election year and pandering must be intensified and extended to any and all of the ‘bases’. Rep. Speier’s Congressional District – 12^th CA – comprises, by the most amazing coincidence, parts of Santa Clara County, which was most recently the site of the jury-nullification verdict for an A&B against an alleged SO about which I have Posted several times in the past couple of weeks, including a Post just yesterday. Her District is just south of Nancy Pelosi’s San Francisco District.

What better way to do some quickie and useful pandering than to get an online Petition going about demanding a military SO Registry that might well also open up a back-door to active federal administration of Registries that the States now realize are not only of hugely doubtful and oversold value to the public but are also very very costly in terms of time and money?

Neatly, on the site sponsoring the Petition, the whole thing is classified as a “women’s rights petition’. In case anybody was wondering if there is a connection.

As I have often said, given the fundamental organizational objectives of any and all military undertakings, you can get yourself court-martialed and ‘convicted’ for just about anything the brass has a mind to Charge you with. And if you then factor in the SO Mania Regime as it has run rampant in the military-justice system (where Constitutional protections were already weak, before the Regime’s effects are factored in) … you can see the possibilities for lethal mischief.

But all that would be thinking-too-much for politics in an election year, especially among youthy or emotionally-reactive internet generations that aren’t widely noted for circumspection and careful analysis of dynamics and consequences and all that stuff. It just feels so good to be part of a Good Cause.

If Justice Douglas was right when he reflected that liberties are lost slowly – like the sun going down and dusk descending gradually from almost-daylight to total darkness – then I would also add that to the unreflective and unobservant, darkness appears to suddenly arrive ‘out of nowhere’. When you aren’t paying careful attention, all sorts of stuff  ‘just happens’, and ‘suddenly’ too.

On the Petition site, internet participants are invited to say something. But not to ‘comment’; rather: to share their ‘reasons’ for supporting the Petition. A review of the many entries indicate very very few actual reasons and thoughts, and a whole lotta ‘stories’. Which – but of course – cannot be verified and – their writers probably know full well – will never be examined closely, if at all.

As I have said before on this site, the advantage of the military and clerical sex-offense cases is that they allow for a more focused example and consideration of the dynamics and consequences of the sprawling SO Mania Regime; they are the SO Mania Regime ‘writ small’. And by ‘small’ I mean manageable in terms of observing and analyzing how this Thing works.

One comment-maker claims that when she asked about a military SO Registry, “some” of the responses she was given were that it would take too much paperwork and too much time. But a) how does anybody really know that and b) what other responses was she given that perhaps to her required too much (confusing or inconvenient) thinking?

Perhaps some acute responder told her that there were significant potential or probable Constitutional problems. Or that the military would rather not create a program that would have to allow for the type of contested-Hearings by those under threat of registration that might well expose huge shortcomings in the military justice system. Or that if this scheme were to be made retroactive – as the civilian schemes are, because they are ‘merely administrative and not punitive’ – then military convictions might be open to formal Ex Post Facto court challenges that, again, invite unpleasant public and even judicial scrutiny and also invite judicial-review into the military system. Or that the whole thing is going to cost an awful lot of money that the military needs for stuff like – not to put too fine a point on it – recovering its war-fighting and war-winning capabilities.

Or perhaps nobody did and she hasn’t even thought to consider such ‘abstract’ stuff herself and she just has to imagine that since her cherished Registration idea is ‘totally Good’ then the only reason there is any doubt about it is because there is a ‘conspiracy’ to continue to ‘oppress’ victims (and, of course, ‘women’). Such cartoon-thought is widespread nowadays, especially since ‘abstract thinking’ was kicked-to-the-curb as being ‘macho’ and ‘patriarchal’ and so on and so forth.

The whole bit becomes – for far too many – merely a soap-opera chance to ‘be involved’ without having to do much serious thinking. Which – to some minds – is totally OK because what they are trying to ‘change’ is so totally Evil in the first place that anything they want to see done is totally Good.

It’s anybody’s guess how all this is going to turn out.

But if for no other reason than money and turf, the military might yet decide it’s not a Good Thing at all.

And yet, if it’s going to be a tough election, then the Beltway pols might be in no mood to do any thinking themselves.

NOTES

*As of July 12, 2012 it has been just two weeks short of a year since the DOJ’s SMART office (assigned to implement all Registration and Notification schemes, including the AWA scheme) has posted any press-releases. Prior to July 28, 2011 the SMART folks had been regularly and frequently posting burbly and cheerible press-releases about the latest jurisdictions to sign-on for the AWA-compliant certification. Not anymore.

ADDENDUM

But like so much of the SO Mania Regime, there is always a curious element ‘coincidence’ about this Thing – ‘coincidence’ that belies the desired unthinking take-away assumption that its advocates would like you to stumble away with: that all the brouhaha is just the honest concatenation of a whole lotta real and honest victimization suddenly rising to an innocent critical-mass.

When actually, there appear to be a hefty dynamic of wheels-within-wheels and the queasy sense of ‘strategizing’.

So, in this case, it can actually be no coincidence whatsoever that on June 22 an independent documentary film, entitled “The Invisible War” was released, one which had received top-billing at the annual Human Rights Watch Film Festival (the primary themes of which for 2012 are “women’s rights, personal testimony, LGBT rights, and reporting in crises”.

That last quote is taken from a review by the usually serious, astute and insightful Stuart Klawans in the July 2/9, 2012 issue of The New Republic  (pp.44-5 of the print edition; the link brings you to a subscription-only firewall).

That “personal testimony” is – but of course – a vital and lethal hallmark and fundamental operating principle of Victimist strategy and jurisprudence: echoing the early 1980s exhortation to “believe the children” first deployed widely in the Satanic Ritual Day Care Child Abuse trials of that era, which actually uses ‘children’ as a pretext and crowbar to move public opinion and – ominously – jurisprudence and legislative Findings away from a reliance on rational and careful and deliberate analysis of evidence and toward an emotional, primally limbic acceptance of whatever ‘story’ (usually a ‘horrific’ one) any self-proclaimed ‘victim’ or ‘survivor’ (with its  queasy metaphorical undertone of the Holocaust).

Carefully, Klawans makes sure grammatically that all of his statements are based on the assertions and presumptions built into this documentary. But once he has covered that base, he opens up the throttle: the directors have “committed impressive resources of research, skill and moral gravity to “The Invisible War” – although the moral gravity of the Victimist agenda is verrrry highly selective, and does not extend to any general morality or truthfulness, but rather only to the ‘revolutionary morality’ that whatever is good for the revolution is Good and True and whatever isn’t, isn’t.

“To judge from statistics presented in the film”, Klawans ventures shrewdly and carefully, “some 20 percent of the women who go into the US military will be sexually assaulted by the people they most trust: the servicemen with whom they live and work.”

You see here the lethal and incoherent presumptions which this Victimist Narrative requires us to presume without actually giving it much thought: a) that despite decades of (male) sexual-violence horror-stories, huge numbers of ‘women’ are going into the military thinking that such purported sexual dynamics are not operative (thus that when they are assaulted sexually, it is truly a case of Innocence Treacherously Surprised – a nifty if ancient script hook); b) that the same military that provides us with so many “heroes” is (purportedly) at the same time one of the country’s largest pools of rampant sex-offending perps; c) that sex-assault is rampant in the military, although military-law has now been hugely deranged by deliberate ‘definition-creep’, whereby almost any sexual act or encounter is ‘rape’ and any woman who has had just one drink (or beer) is ‘incapable of giving consent’ (and thus any sexual-activity is ‘by definition’ rape).

And, Klawans immediately continues, “the real percentage must of course be much higher, given the daunting pressure on the victims to remain silent”. No doubt he got this pair of ideas from the film.

But the SO community is well-aware of the value of this queasy statistical gambit: on the basis of uncorroborated ‘stories’ gotten in ‘surveys’ of the most primitive (yet carefully focused) kind, which are then in their dozens of thousands compared to the actual formally reported numbers of allegations filed, the ‘extrapolation’ is quickly made that the ‘real’ number of incidents outnumbers the actual formally-reported number of incidents by a factor of 10 or 100 or 1000 or pick-your-favorite-exponent.

And of course, this bit of frakkery is explained by the ‘fact’ that the women who make the allegations are under “daunting pressure” not to make such allegations (or – if you wish – ‘reports’). Thus that there is a huge and evil (and patriarchal) organizational “culture of rape” (remember that old saw from the 1970s?) in the military.

That the military might advise allegators to be prudent lest they open themselves to charges of false-official-reporting (a serious offense itself in the military justice system); that the military is trying desperately not to have its resources diverted and attention distracted by the usual and required victimist-SO soap opera; that the military itself is aware of the incoherence by which male soldiers are now distracted from focusing on war-fighting competence not only by the ever-present distraction of females living cheek-by-jowl with them but also by the ominous awareness that any female at any time for any reason (getting out of an unpleasant assignment not being the least of them) can make an allegation and literally – by the latest regulations – ‘stop the music’ in an entire unit … none of these possibilities do the Advocates want you to consider.

And – even more slyly – Klawans stenographizes yet another interesting bit from the film: “this is not just a problem for women … men on active duty are raped too, at a lower rate but in higher absolute numbers than women”.  So, neatly, this is not just a ‘women’s issue’ because males are also raped in large numbers; but at the same time it is – but of course – more important to focus on the women’s stories. [And is male-male rape that prevalent in the military? How is rape being defined here? When did this start? And how can putatively patriarchal, macho males accept this without concomitant levels of self-defensive or vengeful violence against their rapists? Or are the males being ‘raped’ by the females? What is going on here?]

And you can see where this entire gambit has now taken hold among the new-generations of military males themselves. And all the usual reservations must apply to your assessment of the ‘crisis’.

But then – and here is the direct tie-in to this Petition – “many uniformed perpetrators retire into the civilian community unpunished, unidentified, and amply experienced in sexual predation”. All of which elements of this assertion are dubious and certainly unproven: that anyone allegated-against is truly a “perpetrator”; that they were thus worthy of formal legal punishment and yet “remain unpunished”; and that all of them are “amply experienced in sexual predation”.

But it’s a neat skein of illusions and rather strategic – simultaneously from an ideological and a political and also a commercial film-making point of view: this ties in the engorgement of the SO Mania in the military, the civilian SO Mania (now waning, at least in terms of media attention if not also in terms of the public acceptance of the Mania’s presumptions and Script), and thus will hopefully re-ignite the enabling attentions of legislators now sobering up at the prospect of costs and perhaps even consequences to the common-weal.

The entire film was itself enabled by a hugely selective example of ‘scholarship’ in a “report” concocted by retired feminist professor Helen Benedict (“The Private War of Women Soldiers”, published in 2007 on the online ‘women’s’ site, Salon Magazine). Perhaps the distraction of this ‘private war’ is part of the reason the military from top to bottom has not been more successfully focused on actually winning wars nowadays.

“The witnesses” – but of course – “are stunning in their pain and courage”. But of course nobody has any way of knowing if they are genuine “witnesses” or merely story-tellers (nor do I presume to judge; but it is vitally necessary that every such story of allegation be examined and confirmed, especially in light of the consequences demanded by the story-tellers and their Advocates). And given the still-unplumbed depths of ‘victim-friendly’ ‘reforms’ in Mania matters – whether in the civilian or military forum – what ‘courage’, really, is required? No more than is required to pull a fire alarm hook (perhaps anonymously), knowing that your action can and will never be seriously examined or questioned.

The film, Klawans reports, is (artfully) constructed and woven of “extended conversations and contextual scenes” (merely a story-spun, reinforced for dramatic effect by what are known in the trade as “dramatizations” – filmed horror-stories and nightmares, none the less limbically and emotionally seductive for their being – for all anybody knows – more ‘drama’ than ‘report’). And all of this by “survivors”, a manipulatively dishonest moniker given that nobody’s story or comments has been analyzed let alone proven.

The skein is then embroidered with a rapid sequence of  filmed “comments” by whomever the film director carefully selected for whatever telegenic reasons.

“You get an appalling sense of outrage piled upon outrage, even as the film moves along calmly and logically”, intones Klawans in a tone of hushed awe.

But of course it is “calm” because no shadow of being held-to-account darkens the brow or the conscience of the film-maker, and the “logic” is that of Goebbels: once you have accepted the grossly illogical and untruthful premises of the artfully-constructed presentation, then all secondary logic is utterly tainted and deranged, not to say perverted.

(I can’t avoid mentioning here Dietrich Bonhoeffer’s awesomely sober and rueful admonition to those among his circle and beyond it who hoped that they could somehow ‘improve’ Hitler’s and Goebbels’s Third Reich: “Once you have gotten on the wrong train, walking backwards through the cars isn’t going to help”.)

Thus, and apparently to Klawans’s satisfaction, the film demonstrates clearly and completely “how a culture of rape flourishes in the military”, based on “a twenty-year history of sexual assault scandals”. Such as the Tailhook scandal, now – twenty years or so later – revealed to be a put-up job from the get-go, and its primary ‘victims’ demonstrated to be untruthful and – let it be clearly noted – unpunished.

So you see how it works. And how even otherwise sober and acute and reliable experts in their field can be hoodwinked, or at least seduced into composing an approving encomium.

And the band plays on.