SEX PANIC AND THE PUNITIVE STATE 8

I continue looking at Roger Lancaster’s (RL) book.*

RL then considers how the government set out “institutionalizing victimhood”. (p.200)

All of the States and the District of Columbia now have adopted some form of a victims’ bill of rights and thirty-three have actually amended their State Constitutions to do so.

He rightly observes that “these newly minted rights tilt law enforcement practices away from a constitutional emphasis on rights of the accused while embedding a punitive pre-emptive orientation even more deeply in institutional practices everywhere”. (p.200) I would add that this dynamic has been carried on even more lethally in the courts, where the zero-sum of ‘rights’ between accused and accuser has resulted in a subtraction from the Constitutional rights accorded the accused and an addition to these “newly minted” victims’ rights. There’s no way to put a happy-face on that, or to wish it away. From the get-go, victims’ rights had to be taken from slices made into the corpus of rights accorded to the accused in Western law and the Constitution.

He mentions the ‘right’ of the victim to be protected from the accused, and rightly traces its origin to feminist and womens’-services advocates who saw such a demand as a neat way to prejudge the accused in domestic violence case: i.e., the accused is soooo dangerous, that the accuser has to be protected by the government and the police. Once that thought is planted (by a helpful media) in the public mind, then any accused is effectively pre-judged before anybody gets to the court-room and the legal process.

The presumption of innocence, RL rightly notes, is gone – even reversed.

I have always thought that the reversal of such a profoundly basic and essential principle of Western law should have raised a red-flag from Day One. And many legislators were themselves law-school graduates (although as Joe Biden cheeribly admitted, law school “bored” him – no wonder he was just the Senator to steer the Violence Against Women Act and its add-ons through the political process).

And once this dynamic is in play, the assumption of guilt “favors pre-trial detention and thus gives prosecutors a powerful weapon to wield against the accused” since isolated and incarcerated defendants “are more likely to seek a plea bargain or enter a guilty plea than are those who remain at home awaiting trial”. (p.200) It is anybody’s guess how many guilty-pleas and plea-bargains were made under such duress, deliberately fabricated by the pols and administered by the prosecutors, the whole shebang eagerly amplified by the media.

Victimism is lethal to a democracy as well as to Constitutional jurisprudence. It requires – if you think about it – that the common-bond of the Citizenry and of The People be fractured, bluntly and forcefully sliced-up into Victims and Perps (or potential Perps). Somebody should work out a pie-chart of the population: each Victim group, its claimed ‘oppressor perps’ (and potential perps) … and draw lines through the pie for each pairing from each Victim group: by the time you get through, most of the Citizenry is somehow a sheep or a goat or perhaps both simultaneously.

But the sex-based Victim groups (shading so complexly into the Domestic Violence groups) enjoy – at the moment – the greatest cachet, reflecting the pols’ eagerness to placate the radical-feminist Advocacies and their hanger-on pandemonium who get a cut of the sizable government monies allocated for the Problem generally.

RL notes the claim that participation – and influencing outcomes – by Victims in various phases of the legal processes is “therapeutic”. And so it may well be; in the same way that road-rage against somebody you feel has cut you off at a traffic light is – for a moment – “therapeutic”: you feel a really neat surge of power and – not to put too fine a point on it – vengeance. Until, anyway, you realize what you’ve done, especially if – say – you cause an accident or injury to somebody while in the process of getting your “therapeutic high”.

It is anybody’s guess how many such persons are now trudging around the country, their initial ‘high’ gone, an awareness of damage caused (especially if it was disproportionate to the allegated offense or if the initial report they made was a false one). But then would an addiction dynamic kick in? Since the first high has worn off, might you need to somehow get another dose? Surely psychological ‘addiction’ experts are flexible enough to consider that type of addiction, on top of all the other types said to be rampant in the country.

But – and RL discusses this (p.201) – how genuinely and lastingly ‘therapeutic’ can such vengeance be? While ‘getting back at’ somebody for some hurt real or imagined has always had its seductive charms, hasn’t the more mature and enriching course been to first master your own responses to your experiences and then, once those are mastered, to consider what retributional options might be available?

And – as RL also considers – what, really, are the reliably-known dynamics of “trauma”? Why is it that some people are not ‘traumatized’ by substantial events that they experience, while others are ‘traumatized’ by much less substantial events? (All of this presumes that sufferers honestly report their internal experiences, which is a verrry big presumption – especially when the government has gone and guaranteed that if are ‘traumatized’ you can collect some free money.)

Worse “the prevailing rhetoric of the victim’s movement is that no punishment is ever severe enough”. (p.200) That’s true. Although to no small extent this demand is slyly masked: no punishment is ever severe enough because we are always ‘discovering’ how utterly horrific even the most minor ‘victimization’ can be. It’s not, then, that the victimists are trafficking in state-abetted vengeance; it’s just that they are honestly reflecting the ever-increasing ‘knowledge’ that is constantly being ‘discovered’ to the effect that even the most minor instances of victimization can have ‘soul-killing’ consequences.

This is especially true in the sex-and-violence arenas, where things have now reached the point that it is difficult to draw distinctions and gradations for the purposes of sentencing those convicted: it’s no longer the guilt for the Charged Crime that drives matters, it’s the presumed horrificness of the victim’s (claimed) internal experiences. There might as well be just the one crime of Victimizing, which would carry a minimum twenty-to-life sentence.

RL discusses “emotional pre-sentencing testimony” by victims (or their kin or friends) – as if the judge were not able to make his/her own assessments from all the trial material. And once again, it injects a queasy soap-opera or melodrama note into what should be more serious proceedings (people’s liberty, property, futures, or even lives are at stake here).

But I would also add – as we have seen in the recent Santa Clara trial where a man assaulted an old man he claimed to have sexually molested him 40 years before – the hardly unpredictable gambit of introducing emotional ‘testimony’ about the alleged molestation (which had itself never been examined or proven) at the beginning of the trial as a justification for the A&B he admitted he committed. And the jury bought it and refused to convict him of A&B even though he admitted he had done it.

RL notes legal experts who have pointed out how lethally all of this undermines the necessary impartiality of judges and jurors. (p.201) But I point out that it was precisely a demand made by radical feminism** that, ‘impartiality’ and ‘abstraction’ are nothing but patriarchal and macho refusals to enter into the pain of the story and that the justice system therefore needed to be ‘reformed’ to make it more ‘sensitive’ to – as radical-feminists put it – women’s very special and non-macho way of processing and constructing experience: by feeling – the theory goes – rather than by thinking or ‘abstracting’. Also you shouldn’t be so insensitive and macho as to ask questions about deeply felt stuff (such as the truth or accuracy of stories told in police reports or under oath) … Radical-Feminism gave Victimism a philosophical ‘justification’ for gutting the American justice system of some of the most primary principles and practices of Western and Constitutional law. And that’s what happened to the Rule of Law, in case you were wondering.

Nicely, RL quotes attorney and author Wendy Kaminer that “the prosecutor and defense are not engaged in a ‘duel about punishment’; they’re engaged in a duel about guilt”. That’s the way it should work and did work. But now in victim-friendly law you can’t really ‘duel’ about guilt because the victim’s story cannot really be questioned … so what’s left to do?

Further, Kaminer rightly asserts that defendants should be the center of attention at trials because they are the ones being tried. And because it is their liberty or property or even life that hangs in the balance. It is therefore a gross and fundamentally grotesque deformation and derangement of the trial-process to make anybody else the center of concern. Trials are not primarily spectacles; they are workaday processes to handle the vital but lethal deployment of the government’s sovereign coercive power against an accused Citizen.***

RL neatly gives Kaminer’s neatly-put conclusion: “It’s hard to argue with the desire to reform trials in order to help victims heal – unless you consider the consequences. Because the victims’ rights amendment decreases the rights of defendants. It’s not simply a grant of rights to the crime victims; it’s a grant of power to the state.” (p.202) And – I would only add – it’s a grant of rights to the victims that are taken from the accused. (And while the formal Victims’ Rights Amendment to the Constitution has failed, the government has continued to keep the ball rolling in lesser venues, especially courts and law-enforcement policies.)

All of which “naturalizes vindictiveness”, as RL nicely puts it. (p.202) And such a naturalization of one of the more primitive human emotions is nothing less than a deliberately-induced regression in the nation’s civic and cultural life. If this or that genuinely guilty perpetrator may often said to be ‘primitive’ (and in need of some growing-up as a Citizen and an adult), the entire Citizenry is seduced into such regressive primitiveness by participating – even if only as a spectator from a distance – in the staged state-administered vengeance-sessions that so many trials have now become.

Nor does RL mince around the more delicate of the lethal ‘reforms’: “If vindictiveness seems natural, even honorable, today, it is thanks in no small part to the careful placement of white, infantilized crime victims at center stage in the national political drama”. (p.203) In a sly but viscerally powerful PR move, the Victimists, themselves fronting for the government police-power (either from the Left or the Right), hold children up to the cameras like  – I’ll say it – baby harp seals. Despite the fact that the alleged myriads of missing and exploited children are mostly fictional.

Yes – there are instances of genuine outrages against children, but are they enough to derange the Constitutional walls that protect Americans from the power of a government gone wild? (And still going wild – as the National Defense Authorization Act **** clearly indicates.)

And “during the 1980s and 1990s, victimization emerged as a durable new source of identity”. I can’t begin to calculate how vulnerable so many people are in modern-day America to the seductive lure of an easily-acquired sense of ‘identity’ and of ‘social status’ and of ‘belonging’ and of ‘achievement’ (how easily now the term ‘hero’ is tossed around). On some of the websites where victim-interested types tend to comment, you can almost feel the strong pull.

 And “as a quasi-religious movement, the new victimology extended an evangelical invitation to every corner of society”. (p.204) Here I’d only note that aside from ‘men’ generally, the most sustained assault target of the Victimist-nourished SO Mania Regime has been a church – namely, one of the largest and most established.

And, in that regard, recall that the ‘invitation’ was then sweetened by the lure of easy money, as legislators made it even easier to present a story from the long-ago, claim ineffable trauma, and collect a hefty settlement. The possibilities for mischief here are not small.

And such victim status also brings with it “privileges”. In that role, one can “enjoy the empathy and indulgence of otherwise unreceptive authorities” (especially once the Beltway let it be known that federal money would be available to receptive authorities, and federal hostility would be visited upon unreceptive ones). (p.205)

And – as RL rightly continues the catalogue – “victimhood too comes as a relief, a disclaimer of personal responsibility” and the victim becomes “the undisputed hero of his or her story”. (p.205) Although this is a heroism too-easily acquired: rather than achieving anything by dint of sustained personal effort, one simply declares oneself a victim and perhaps preside over a spot of vengeance courtesy of the government and perhaps even a few moments in some form of media attention.

But that was the scam the government itself lured so many into.

It was Janet Reno, when she was Attorney-General in the Clinton years, who really opened up new vistas for Victimism in a 1997 speech at a victim-rights conference: she “sanctified” it as the core of American identity by asserting to the crowd and the cameras that “I draw the most strength from the victims, for they represent America to me: people who will not be put down, people who will not be defeated, people who will rise again and stand again for what is right … You are my heroes and my heroines. You are but little lower than the angels”. (p.205) [italics mine]

There are two tropes woven into this astounding bit.

First, that being a Victim is now a credible – indeed valuable – social role and identity. Is this a good message to be sending to the young? Is this really a life-project or life-role that can sustain a productive society and a common-weal? And, of course, every ‘victim’ requires a victimizing perp – so for that huge chunk of society that embraces its victimhood, an equally hefty chunk of society has to be cast in the role of victimizer. And the presumption will have to be continued: this country and culture and society runs and works mostly through victimization. And how develop a robust respect for and loyalty to the Framing Vision if that is your basic take on what makes this country work and run?

Second – and this is truly a sly pre-emptive gambit – Reno tries to make the ‘victim’ into some modern version of frontier settlers: hardy, scrappy, resilient, no-nonsense, refusing to take No for an answer, and – so familiar now – courageous and ‘heroic’. And yet this is hardly the presentation mainstream Victimists proffer to the public in the endless horrific ‘stories’ and the claims of ‘soul-killing’ ‘traumatization’, especially in sex-matters where you are supposed to believe that the merest incident of the lowest-grade ‘abuse’ can derange and derail personal competence and development.

But Reno’s spin lets you get to have your cake and eat it too: hugely fragile and damaged and yet at the same time possessed of a sturdy and robust and mature life-competence.  

But this is all spin. It’s political pandering to a useful demographic. And yet that’s a demographic that demands the most lethal and profound derangements of American law and jurisprudence and – ultimately – civic competence that would support a commitment to the common-weal.

And can it seriously be accepted that what has become victim-friendly jurisprudence and the general manipulation of the public Stance toward an accused is accurately describable as “right”?

And lastly, I note that queasy, childishly sentimental faux-theological flourish about “the angels”. For a secular-Left government, Victimhood is somehow now a quasi-religious substitute for any genuine religious life. As if you could nurture yourself spiritually merely on the governing dynamics of Victimhood as it has mutated in this country.

But her speech served shrewdly to provide a talking-points memo for ‘the faithful’ and you can see echoes of her spin still surfacing 15 years later in various comments on various sites.

As I have often said, the government – from both Left and Right – has embraced Victimhood and helped mutate it into the monstrosity that it is today.

And the Rule of Law, and the boundaries of truth and honesty that are vital to any genuine civic competence and integrity, are much the worse because of it.

NOTES

*Lancaster, Roger. Sex Panic and the Punitive State. Berkeley: U/Cal Press (2011). ISBN: 978-0-520-26206-5 (pb). 246pp plus Appendices, Notes, and Index.

**The radical-feminist law professor and activist Catherine MacKinnon goes into this at length in her 1989 book Toward a Feminist Theory of the State.

***And have you noticed that this tendency has migrated to other equally lethal arenas? So, for example, the killing of ‘insurgents’ or ‘terrorists’ or whomever happens to get hit by gunfire or drone-fire in this or that of Our military misadventures becomes merely a spectacle to be played on the evening news (if footage is available)? Victimism has made vengeance – albeit mostly through a deformed legal process – a ‘spectacle’; and those who watch it start to resemble Roman crowds at the gladiatorial arena. (If you watch the Starz satellite channel, their series “Spartacus” plays on this reality, I think: when the gladiators are in the Roman arena, the camera spends much of the time on the crowds, leering, cheering, jeering, and generally giving in to their most primitive instincts. It is not a pretty sight – but I think it is very revealing and deserves much thought.)

****You can see here  an article by Morris Berman, author of the recently-published book ominously entitled Why America Failed. He discusses the National Defense Authorization Act signed by Obama in December, 2011.

As Berman puts it, this is the “indefinite detention bill”: and “it has no temporal geographic limitations, and can be used by Obama or any future president to militarily detain U.S. citizens” so that “as in pre-Magna Carta days, you can simply be swept up and put away forever with no explanation of why, no right to call or lawyer or anybody else, and no right to a trial.” It is, he opines, “probably the greatest rollback of civil liberties in the history of the United States”.

Definitions are elastic: “literally anyone can be described as a “belligerent”, or as they are now called, “covered person”. And “the universe of potential ‘covered persons’ includes every citizen of the United States of America … who could one day find himself or herself branded a “belligerent” and thus subject to complete confiscation of his or her constitutional civil liberties and nearly never-ending incarceration in a military prison”.

Recalling that America now has “more people under ‘correctional supervision’ that there were in the Russian gulag under Stalin at its height”, he observes ruefully that “the distinctive characteristic of American democracy, from 1776, was the protection of the individual and the preservation of individual rights” but now “that no longer exists”. I would say that the SO Mania, driven by Victimism and also by the Radical-Feminist dismissal of the Constitution and all its protections as mere props for ‘patriarchy’, worked powerfully to undermine the integrity not only of the legal system and of the government itself, but of any official respect for the Rule of Law.

So I can’t help but think that all of this was clearly waiting in the wings when the curtain first went up on the SO Mania two decades and more ago: the dynamics that render so many vulnerable to the classification as “belligerent” or “covered person” are pretty much the same that opened so many Americans up to the classification as “sex offender”. And to read some of the Radical-Feminist and Victimist tracts, all men were almost by definition rapists and ‘sexual terrorists’. Half the population, ‘classified’ in a single sweep.

Berman also notes that even before the passage of this law, the president had the ‘legal’ power to declare anybody on the planet a “terrorist” and have him/her assassinated. There need be no trial since guilt was presumed.

I think you can see here where Victimism as it has mutated in this country in the past decades has actually weakened the Constitutional protections for Americans. But worse: it has gotten too many Americans used to the idea that Evil can easily and quickly and with certainty determined, and that such Evil has no rights and that if you just know somebody is Evil then it’s only a matter of carrying out the punishment.

And it clearly has gotten the government into some very dark habits. Before Dick Cheney suggested that this country would have to take a walk on path to the Dark Side, I think Victimism as it has mutated here was already paving that path.

And yet, judging from how the SO Mania Regime was given so much unthinking and well-intentioned public support or at least acquiescence, so many will find themselves with nothing to say except “It seemed like a good idea at the time”. But that won’t repair the damage.