SEX PANIC AND THE PUNITVE STATE 10

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

RL – with a becoming honesty, given his genuinely and decently liberal stance – examines the phenomenon of “feminism and the state”. (p.209)

He notes that there is “a surprising amnesia” when it comes to “the history of women’s reform movements”, as one (female) author noted in her own book about “the rise of the carceral state”. Another (female) author speaks of “the feminist alliance with the state”. (p.209)

He takes this hugely un-discussable bull by the horns: “the dangers of viewing rape and domestic violence through a law-and-order lens should have been obvious”. This is the heart of the Victimist mutation in this country, driven by political efforts to attract voters. The Republicans started it, perhaps – I think – seeking to attract women voters without looking like they had embraced feminism in its more outré ‘liberal’ forms such as the Democrats had done. Hence Reagan’s law-and-order approach, a solid red-meat and red-blooded Republican option.

So, I think, once a political Party embraced the option as a way of garnering votes (and, worse, of playing-to the voters) then the more awful and horrendous and terrible the Problem, the more electorally profitable for the pols as they rode to the rescue.

This was on top of the advocacies’ own selling-strategy: the more awful and horrendous and terrible the Problem, the more pressure could be exerted on pols to accede to the advocacies’ agendas and demands.

The media, of course, would lap it all up like catnip – and thus the more awful and horrendous and terrible the Problem, the more competent, relevant, concerned, and ‘serious’ they would look as they published the various stories and visuals that had already been slyly crafted on the model of old Hollywood silent-film Innocent Victim/Evil Perp scripts.

Like examining a monster killer tornado or hurricane, you can watch this Thing taking shape as multiple smaller dynamics begin to get sucked into its vortex.

And all of this takes place in a dynamic Theodore Lowi** analyzed years and decades ago: Congress, for its own reasons, had come to quietly abdicate its oversight responsibilities, “delegating” its powers to “interest-groups” – which were Business, Labor, and Agriculture in the immediate postwar era, and then about 1970 or so those “interest groups” came to include the assorted Identity-Group advocacies (based on race or gender or what-have-you).

To all of those “interest groups” – assisted by the now ubiquitous “experts” (paid by Congress or by the “interest groups”) – Congress allowed its legislative power to “drain out” (Lowi’s phrase for it): those “interest groups” would be allowed to pretty much write the laws and regulations and policies, which Congress would simply rubber-stamp with its Constitutional authority and power (having yet retreated from its Constitutional responsibilities to soberly deliberate and examine such proposed laws before passing them).

And this, I think, explains three things, among others: first, the Findings that preface the SO Mania Regime laws which were so highly dubious when they were first published and are now demonstrably so obscenely inaccurate and yet the Congress displays utterly no desire to go back and reconsider its legislation in light of the research that has now been done; Congress didn’t pass these laws and adopt these Findings for the country – it did so for the advocacies that wrote them and the demographics those advocacies allegedly represent. And while the Consequences for the country may not be good, yet the advocacies still hold to their agenda … and it is the advocacies who have been allowed by Congress to control the whole thing.

Second, and this is especially so in the case of the SO Mania Regime laws, Members – many of whom are themselves attorneys – are sufficiently worried about the consequences and quality of these laws that they so very often resort to various legislative-rules ploys to prevent their vote for the laws from being publicly connected to them; thus there are suspensions of the rules and voice-votes and any other diversions by which a Bill can be passed into law without the names of those Members who voted for it being made public (and the Member later held responsible for his/her vote).

And of course the ultimate sop to the pols’ consciences is the LBJ approach to legislation: “pass the damned thing – we can always go back and amend it later”. Thus, even as the Mania Regime laws demonstrate both their fundamentally unsound basis in fact and their lethal (and expensive) consequences on so many levels, the laws remain and are followed by further laws: the pols are trying to “amend” what doesn’t work, although really they almost invariably wind up simply intensifying the originally rotten dynamics they had allowed to be set in motion with the original law.

Third, the habit of naming laws after the most PR-attractive victims or their cases, rather than after the essential purpose of the law itself. This is the demographic dynamic compressed into a very small place: you as a Citizen and voter and taxpayer are to be distracted and manipulated by the ‘story’ and not by the actual dynamics (and the consequences) that the law is going to set in motion. This is the carnival midway magician’s old scam: distracting you from the real movement by flapping some bright and shiny diversion. OZ and the citizens of OZ – that’s what Congress and We have become.

In saying all this am I seeking to ‘disrespect’ or ‘re-victimize’ the ‘victims’? No – I am simply saying that in the grave and sober matters of erecting useful and workable legislation, no distractions can be allowed to override the vital responsibilities that both legislators and Citizens bear to ensure the integrity and efficacy of the laws.

RL goes on quickly to note that there were other ways of addressing rape and domestic violence: “in other developed democracies relationships among victims’ rights, women’s rights, and judiciary procedures took less toxic forms, and women’s movements internationally have tended to maintain a critical distance from the power of the state”. (p.209) And “generally, they have not made harsh criminal penalties a central demand”. (p.209)

But I would point out here that it is not simply the formally criminal penalties but rather the “administrative” consequences built-into the assorted Registration schemes that tag and track a Citizen for decades or for a lifetime. In that regard, I think that the developed democracies of Europe still retain personal and institutional memories of the era of Nazi and Soviet ‘classifying’ and ‘tracking’ of citizens by the police organs of the state … and they are not about to go down that road again. No such memories were strong enough here, alas, and Congress has allowed such dynamics to start up here. (And – as I have often pointed out – those dynamics have both mutated and migrated to other areas of national life and government practice.)

And – of course – there remains the general judicial refusal to forthrightly term most of the Registration schemes’ consequences as “criminal” rather than “administrative”.

RL notes that much of the funding for the early rape-crisis-centers was drawn from the old Law Enforcement Assistance Administration (LEAA) budget pot, which began to draw those movements into the orbit of the police-authority. True enough.

But you only have to read radical-feminist law professor Catharine MacKinnon’s 1989 summa, Toward a Feminist Theory of the State, to see that criminalization was a key element of feminist advocacy efforts and so was built-into the radical feminist demands from the get-go, as part of their war not only on “patriarchy” but on the “patriarchal” Constitution and on the “patriarchal” Rule of Law. And in 1989 MacKinnon is talking, as she herself says, about an agenda that has been in play since the very early 1970s (and in the Clinton 1990s era of “governance feminism” would go supernova). (And those agendas have also mutated and migrated into all areas of government practice, as can now – alas – be seen.)

RL notes that “the early domestic violence shelters and rape crisis centers aimed to bolster women’s liberation against the power or the state and the power of the police”. (p.209) Rape-crisis counselors began to cooperate with police and prosecutors, setting an ominous dynamic in motion.

And then and thus, with the eager help of the Beltway pols, these advocacy efforts were “co-opted” into an alliance with the police power of the state that has proven (tactically) hugely beneficial to both the advocacies and the pols, although also to the police power of the state and to the great and perhaps permanent and certainly lethal detriment of the Rule of Law and the very first principles and foundations of this country as a democratic republic.

Indeed, before long, even the early advocates themselves were engaging in a type of “vigilantism” (often spun nicely as merely ‘women’s defense’ and public ‘consciousness-raising’, I would add), and some rape-crisis centers “published the names and photographs of alleged sexual assailants; other radicals threatened to submit rapists to various forms of public humiliation”. (p.209) [italics mine]

So you can see that the SO Mania Regime’s Registration schemes were evident from the get-go, and the pols simply accepted them as part of the agenda to be rubber-stamped when the pols decided to enter upon their collusive embrace with the (thus hugely strengthened) advocacies. The various whacky and grossly inaccurate Findings gave the pols their fig-leaf while the courts – alas – so very often bent themselves and the law into pretzels in order to justify the whole shebang as being Constitutional and so very democratic and – of course – vital and helpful.

(RL goes into a fascinating exploration as to how the early 1970s feminists – white and middle class – were much more hospitable to the ‘crime/police’ approach since they did not share the experience of police that non-white females largely experienced. Nor did those white feminist activists care to consider the experience of non-white communities at the hands of unbounded police authority; discussion with Jim Crow-era black females, for example, might have provided sound warning of what happens when a police authority is both un-boundaried and put in the service of a Bad Idea.)

RL rightly mentions “the growing significance of personal horror stories”. (p.210) This element started out as part of the ‘sharing’ experience at rape-crisis centers, and then became part of a corpus of stories routinely (or doctrinally) deployed to raise the consciousness of aspiring activists.

But it then found an entirely new second career when the media (increasingly anxious for ‘customers’, increasingly eager to please any new customer-demographic, just like the pols were eager to please any new voting-demographic) began to run such stories as ‘news’. And then along came the daytime women-focused talk shows that did not resemble Sunday-morning talking-heads, but rather seemed a misch of old-time revival meetings, consciousness-raising sessions, women’s ‘chat’, and – buried deeper down – a highly emotional and manipulative dynamic that I have always felt would have been a frightful tool in the hands of Goebbels or the early Soviets, had the technology been available in their day.

It should be familiar now, how “personal horror stories” then developed a third career as ‘evidence’, both for legislative Findings and, following numerous feminist and victimist inspired deforms (used as a noun; pronounced like ‘reforms’) to the judicial system, for both civil and criminal law (as well as in the far less-noticed military law).

Two of the most significantly-fraught aspects of all this are that a) the ‘story’ itself is almost never interrogated or assessed for credibility (to do so would, of course, be insensitive and ‘re-victimize’ the teller; and b) the deployment of such a ‘story’ on one’s own behalf almost immediately conferred ‘victim’ status on the teller in any forum where s/he chose to play the card. At which point, in any setting, a certain Script pretty much had to be followed: the expression of an appropriate (and Correct) ‘sensitivity’ and emotional response (some mix of sympathy for the teller and outrage at the ‘victimizer’) on the part of all those who heard the story.

Unsurprisingly, such a Script made for great (and useful) entertainment in any PR venue: as ‘news’, as ‘testimony’, and – but of course – as made-for-TV movie scripts.

RL’s assessment is that “In the end, feminism contributed to the development of a specific sort of victims’ rights movement in the United States”. (p.210) By which he means that “mainstream feminists made common cause with law-and-order conservatives, and some in the women’s movement assisted in the promulgation of unmistakable punitive laws”. (p.210) I would add: laws that were not only “unmistakably punitive” but that were also primitive and regressive by any Western and American Constitutional standards (had not those standards already been kicked to the curb by pols eager – treacherously eager – to pander).

Nicely, he notes the Midwestern (and rightist) Women’s Crusade Against Crime (which for a while outranked the lefty National Organization for Women in the then-conservative Midwestern cities): the Crusade’s primary goal was “to support, assist, and augment the criminal justice system in doing its job”. And it was in Washington State (so curiously a blend of coastal urban-suburban liberals and inland rural conservatives) that “women’s groups spun a rape reform law as a crime-control bill” as early as 1975. Further, that “nationwide, new laws made it easier to convict men accused of rape or wife battery”. (All quotes in this paragraph, p.210)

To anybody concerned for the Framing Vision and the Constitution, the entire concept of making it ‘easier to convict the accused’ should have set vital alarm bells ringing. So-called “rape-shield” laws made it possible to lodge formal accusations without having one’s name published, and with a level of anonymity not granted to the accused – which should never have been permitted: if you want to take an issue to the very public forum of the civil or criminal law (rather than the therapeutic or perhaps even media forum) then you are demanding the public deployment of the Sovereign coercive authority of the government, and you must be willing to become public when entering the public arena. Otherwise the case against the accused is tainted from the get-go (you are accused of committing a crime so heinous that the accuser is granted the public protection of anonymity – so you must have done something really really bad).

The whole dynamic, as RL says, “set judicial practices on a slippery slope”. (p.210) How vividly and lethally true. And, of course, so many of these repellent and dangerous deforms did not long remain confined to the ‘unique’ realm of sex-cases, but instead migrated to other realms of criminal and civil jurisprudence and then to government practices, mutating even more virulently as they went.

By the time of the passage of the Violence Against Women Act (1994), enfolded into the Violent Crime Control and Law Enforcement Act of that year, RL notes that it seemed “natural” that feminist advocacies would be strong and active proponents of the whole thing. (p.210)

He reflects ruefully that liberals should have worried – as few did – when “local police began sponsoring Take Back The Night rallies”. (p.211)

And by the time Bush 2 invoked “women’s suffering” under the Taliban and Saddam as justifications for those invasions, “the legacies of state-sponsored feminism were glaringly apparent”. (p.211)

I still don’t think all that was apparent enough to enough people, but here’s hoping more folks make the connection.

And his usage of “state-sponsored feminism” is surely an eye-catching but not inaccurate formulation.

The profound monstrosity of the SO Mania has been for so long and for far too long encloaked in the comfortable and comforting wrappings of just plain old nice liberal ‘concern’ and homey conservative law-and-order … when really it was from Day One a lethally insidious anti-Constitutional fabrication, a virulently mutating and actively migrating infection that endangers the integrity and deep-political health of the entire American polity, and has spread even beyond Our borders on the wings of warcraft. Nor does the future – without vital public intervention – promise anything but more of the same, and worse.

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.

**See either of his two books: 1969’s The End of Liberalism or 1995’s The End of the Republican Era.