Sense Offenses

H.R. 3796

2012-01-23T10:48:00.000-08:00

As reported on the very useful site ‘Congress-Courts-Legislation’, Rep. Sensenbrenner (R-WI), ace enabler of SO Mania legislation, has just introduced H.R. 3796, entitled ‘The Adam Walsh Reauthorization Act of 2012’. The text of the Bill is here .

This is an interesting Bill if for no other reason than it is only one page in length.

But let that not deceive.

In Sec. 2 the Bill calls for 20 million tax-dollars per year for each year 2013-2017 for ‘Sex Offender Management Assistance’ program (Sec. 126 of the original AWA) which helps States offset the costs of complying with AWA’s requirements and for the Jessica Lunsford (et al) Grant program that helps States monitor SO’s electronically (Sec. 621 of the original AWA). The text of the original AWA is here.

In Sec. 3 the Bill calls for 46,200,000 tax-dollars per year for each year 2013-2017 for federal assistance to States and Tribes (and other jurisdictions) in helping States and jurisdictions deal with violations of AWA’s registration requirements (AWA Sec 142 (b)).

This is what used to be called in the bad old days of Cold War weaponry a MIRV’ed Bill: it has multiple warheads that are independently targeted (to satisfy multiple independent constituencies, client groups, and god-knows what parasitical cottage-industries and secretly-remunerated groups have managed to get their names on Sensenbrenner’s master list) and solve various problems with prior Mania legislation.

In my estimation, this would include first: the problem of States’ objections to the cost of maintaining AWA, let alone tracking down all of those instant ‘fugitives’ created overnight by AWA’s sweeping simplification of the classification system (AWA Sec. 111) and the declaration that any AWA-eligible person who “travels in interstate commerce” must also register or face hefty fines and up to ten years imprisonment (AWA Sec. 141).*

States that comply with AWA (and almost a year after the last ultimate final deadline date to do so, only 18 States – and a larger number of Tribes and US Possessions – have done so) don’t lose 10 percent of their Byrne law-enforcement assistance grant monies and they get to divvy up the 10 percent that non-compliant States forfeit.

No doubt the States did their own math and realized that it was going to cost a bundle (of money they don’t really have any more) to administer AWA and deal with the very probable court-challenges and so on. And they also figured that a measly 10 percent of monies forfeited by other States wasn’t going to come near covering the costs either. So now Sensenbrenner is fattening and sweetening the pot. Whether it turns out to be enough of a sweetener is an interesting question.

Second, there are all sorts of non-governmental organizations - termed “private entities” – that are slyly included in AWA as eligible for funding (AWA Sec. 519). Among these are various organizations, named after this or that victim and often headed up by relatives of the deceased (upon whom be peace), that now – and as a result of their own deliberate and strategically calculated actions – constitute part of the underlying web of groups hooked on government tax money to continue pushing their concerns and – far more lethally – their ill-considered agenda and legislative and policy demands.

Third, there are all manner of persons who have been hired to carry out the AWA vision. From persons who will go out and annually verify SO address information to highly-paid attorneys and assorted ‘experts’, this is an employment angle – and in an election year.

Fourth, there are the advanced-level established ‘advocacies’ themselves, which now constitute a network of connections with the assorted gender and victim ‘bases’ – nobody knows how big (or small) they really are – which automatically count for a great deal in a difficult election year.

As the Congress-Courts site observes, there are no reports or evidence that any of this machinery works at all. Indeed, there is a new Study – not by a government agency – that indicates almost none of this stuff works at all.

I would add that AWA (Secs. 631, 634, 636, 637, and 638) specifically mandated Reports by the Attorney-General’s office as to the effectiveness of the AWA program and the whole SORNA scheme. One of them – Sec 634 – required in 2006 a major AG Report by 2011 at the latest that was not only to be made to Congress but was to be made “through the Internet available to the public”.

Granted that the entire Beltway apparatus is now so soused and indentured to political ‘bases’ that it would be hard to accept pro-Mania findings at face value without further analysis, yet it would still be something to see such a Report. I can’t find it – although I am no computer genius – and yet the deadline was “not later than” 5 years after the passage of the AWA, which would have been July of 2011.

Curiously, too, Sensenbrenner’s Bill here makes no effort to ‘justify’ itself with ‘Findings’ or with information from any of those Reports made either to the Congress or to the public or both.

The Bill has been referred to the House Judiciary Committee for consideration. By amazing coincidence, Sensenbrenner sits on that Committee. An associate who also should be familiar to the SO anti-Mania community is Rep. Peter King (R-NY) who chairs the Homeland Security Committee (which got last year’s Sensenbrenner funding Bill). King had in earlier years before his Chairmanship been trying to get public money for NY/NJ-based advocacy groups and get them access to the NCIC as well.

All in all, I’d say that what’s going on here is – predictably – the effort to both pander to bases in an election year and also reassure those bases that you, the indentured politician, are going to keep ‘producing’ according to the terms of the deal you struck with them.

It is for this reason, I think it can now be said with great confidence, that the SO Mania was never interested in actual realities about the problem it sought to address and the problematic-group it pretty much created (The Sex-Offender) to help justify the deals made.

Thus too, even if the amount of funds requested are ultimately reduced (I doubt they will be denied altogether) the pol can go to his/her clients and say that he/she did his/her best and is still very much committed to the original deal.

The SO Mania police state as pork – but when ever was it not?

NOTES

*This Congressional use of the Commerce Clause (Article 1, Sec. 8, Clause 3) of the Constitution to justify all manner of interference in interstate activity (it also covers commerce “with the Indian tribes”) has been used over the years as a Congressional pretext or excuse for regulating all sorts of State and private and Citizen activities: the key is how you define ‘commerce’, which in Congress’s view is as expandable a term as ‘sex offense’, ‘harm’ and so on and so forth.

Apparently, SO’s or putative SO’s who travel across State lines for any reason whatsoever will ‘discourage’ potential victims (women and children, mostly) from conducting their own interstate ‘commerce’ and thus the AWA is, they would like you to agree, justified ‘in the Constitution’.

You can see here for a short but professional discussion of the overall Commerce Clause problem.

Interestingly, in light of points I have been making on my other site but also on this site, this increasing use of the Clause was the grounding of the major civil-rights legislation of the early 1960s. But, I would say, you can thus quickly see how the expansion of that first Phase of the Civil Rights movement to include – after 1970 or so – all manner of victimization of all manner of persons not on the basis of Race but rather Gender or ‘victimhood’ has wound up not so much ‘extending civil rights’ but rather creating the precedent for police-state type regimes (the SO Mania Regime being the first major effort along these lines) and also for getting the feds into the baaad habit of imposing themselves very deeply, especially with the Sovereign police power, in numerous ways.

Which, by the by, is a mirror image of the government’s approach to foreign policy, where it has also become rather ‘invasive’ and ‘impositional’ on the most slender and dubious grounds, including later-proved-nonexistent ‘outrages’ and ‘crimes’ (think of Saddam’s nonexistent WMD and ‘child-molesting’ and Libya’s nonexistent Viagra-crazed troops raping numberless opponents of Quadaffi’s government as a matter of policy).

ADDENDUM

I can see two other points relevant here.

First – and I’ve mentioned it many times before – is that there are now large numbers of people in a matrix of assorted advanced-level advocacy groups and cottage industries that are hooked on this Mania for either cash or status or a sense of some ‘meaning’ and ‘purpose’ (and this last is a good thing, if wisely and intelligently sought). None of these types are going to want to ‘let go’ and all of them may well be concerned that the Mania – and the government cash that fuels it – is starting to fade in the national attention.

Second, and more ominous: once the ‘aura’ of this Mania fades then all sorts of things are going to start coming to light. Specifically, things that were done – ‘in a good cause’ – that were not legitimate or were dishonestly spun and done. Neither the ‘advocates’ nor their political enablers want this to happen, and thus the ‘press’ has to be kept up so that there is much less chance of this Tire being Kicked. One thinks of that member of the Central Committee who blurted out in Lenin’s day: What happens if the masses find out what we’ve really done?

Given the nature of human dynamics, and especially given the fact that it has become axiomatic in the Advocacy Age that either a) untruth in a good cause is Good or b) there is no truth anyway … then you can presume some skullduggery. And given the large amounts of cash involved, you can presume a whole lot of skullduggery. Perhaps even rising to the level of criminal actions.

So Sensenbrenner may well now be trapped into continuing to feed this thing with tax money or else the lid will come off a whole lot of stuff neither he nor his colleagues would like to have exposed.

NATIONAL CATHOLIC REPORTER AND S.N.A.P.

2012-01-18T23:11:00.000-08:00

For those who follow these things, there have been some interesting developments just recently in the American Catholic priest-abuse matter.

The premier American organization claiming to work on behalf of all the victims – or allegants – came under the legal knife itself in December when (it had appealed all the way up to the Missouri Supreme Court and been turned down) it was considered by the cognizant Court to have possibly violated or caused to be violated that Court’s Order to seal all the materials in a pending case against a Catholic bishop for allegedly having ‘covered up’ the matter of an allegedly sex-abusive priest in his Diocese.

The head of SNAP, one Mr. Clohessy, was required to submit to deposition. In the course of which he asserted in his defense that he has always considered his organization, fighting an “evil pedophile Church” to be held to a lesser standard of truthfulness and ‘transparency’ than the Church itself. Something along the lines of If you’re doing it in a Good cause, then you are Good and by definition cannot do Evil; whereas the Evil cannot do Good but must be held to account for that.

If that sounds remarkably similar to George Bush’s summary thoughts on the morality and justice of invading Iraq and any other place that seemed to him ‘the thing to do at the time’, then you could hardly be considered irrational or obsessive.

As if to demonstrate that History (or perhaps Divine Providence) has a sense of Irony, if not also Humor, shortly after that, on the first weekend of January of this year, SNAP hosted a victory-lap world Conference marking the 10^th anniversary of the opening of Phase 3 (by my count) of the ‘crisis’. On January 2, 2002, you may recall, the ‘Boston Globe’ inaugurated the new Phase with a series of long ‘reports’ (basically stenographizing the ‘stories’ of allegants (many of whom were made available by SNAP).

The dynamics of Phase 3 were rather ingeniously sly. Whereas Phase 1 (the mid-1980s) and Phase 2 (the early 1990s) both concentrated on the offending priest, Phase 3 sought to ‘bundle’ large numbers of Plaintiffs and myriad specific charges against numerous priests (living and dead, most cases being decades in the past) into one huge lawsuit. Further, it was the Bishop or Diocese that was the named Party-Defendant; which, by amazing coincidence and in contrast to the often poor-as-churchmice individual priests, had deep-pockets Insurers.

The outcome, hardly unpredictable to those familiar with the dynamics of tort cases in modern America, was that the Bishop – under the advice of both legal counsel and the Insurers – chose to settle out of court for huge sums rather than face the massive task and expense of defending against each individual charge.

Much much money was made through this type of legal piñata arrangement. None of the ‘stories’ that formed the gravamen of the specific charges were ever put to the test of proven veracity; an outcome that no doubt made an impression on numerous other persons who then ‘came forth’, either with a ‘recovered memory’ or – when that particular bit was discredited as a usable theory – simply because it had taken this long to work up the ‘courage’ to sign up on the piñata list.

The media, of course, got an ongoing melodrama of classic proportions, with a powerful organizational villain, employing numerous leering, sexually perverse underlings who carried out their depredations, against purely good and utterly innocent persons in their hundreds and thousands (with additional hundreds of thousands, it was claimed, still ‘out there’, not yet having worked up the courage to ‘come forward’ and sign up).

Within the Church, the indirect beneficiaries of all this were the assorted ‘liberals’ seeking Democracy (meaning election of bishops and perhaps even priests), Diversity (code for ‘women priests and bishops’), and Regime Change (meaning the Pope and the Vatican had to go, preferably by being criminally indicted and convicted).

Anyhoo, only 75 people from around the world (or perhaps a lot closer to home) showed up in Boston for the Conference, a third of whom were officials and speakers. Most visibly not in attendance or leaping before the attending ‘Globe’ photographers and stenographers were any of the hugely enriched tort attorneys who had put the lawsuits together and conducted the horse-trading with the Insurers, for a hefty cut of the resulting Big Check.

A few days ago, the ‘National Catholic Reporter’ – a major American press organization specializing in things Catholic from somewhere in left infield (or outfield) – published an editorial which, to nobody’s general surprise, supported SNAP in general, even if – the editors piously sniffed – they didn’t always agree with SNAP’s tactics.

That editorial may be read here. If you take a moment to read it, then the following thoughts should fall into place clearly enough.

The Polish suicide case: Had it been proven by police investigation to be suicide or is it a cover-up for murder, and if murder then by whom and for what purpose? Has the allegation made in the purported suicide note been determined to be true? I don’t have the answers, but unless the editors have information they haven’t seen fit to share, then who does know the answers?

No investigator could rule out the possibility that either a) a shrewd murderer might well take advantage of a thoroughly-predictable public ‘spin’ (i.e. clerical sex abuse) to kill, and perhaps add a note to direct the ‘response’ neatly away from the actual perpetrator. Or, psychologically, has some unbalanced person found it impossible to go on and finds the monster-du-jour as a handy psychological scapegoat?

I don’t have the answers, but they are all quite real possibilities that would occur to investigators if not to bloggers. Nor do I deny the possibility that the suicide is precisely what it appears to be. But that’s only one possibility out of several to be checked out.

I don’t know why the priest involved in the case does not wish to testify in court. Is he being asked matters that are under the seal of the confessional? Is he simply an observant adult who can see just what happens to accused priests in a time of Mania? At any rate, if the Polish courts wanted him to testify (except in matters of the confessional), then why have they not compelled him? Absent some provision in Polish law that does not permit non-canonical courts from compelling a priest’s testimony, then there is some missing element or elements in the report.

Did the editors not notice any of this?

In a world as full of ‘horrors’ as this present one (upon all of whose victims be peace), I find it a bit too much of a muchness that the editors of a putatively world-class press organization have confessed themselves ‘groping’ for a response.

Despite all of the reforms and strictures (which probably place the Church in the front ranks of protective organizations on the planet, and certainly in the Western world), yet the editors report as if in amazement that “the clergy abuse scandal continues”. Is it not a hardly improbable possibility that the ‘crisis’ goes on precisely because the editors and organizations like SNAP need it to do so? By all extant measurements the crisis – such as it has ever been – is subsiding.

The public uproar is still being stoked, but that is a different matter altogether.

The work of SNAP – and SNAP alone – is “under threat” because a cognizant Court – supported by all relevant levels of superior appeals courts – has considered that there is reasonable cause to suspect that SNAP has violated the Court’s Order placing materials in a lawsuit under seal. If SNAP’s own actions have per se constituted a breach of law by violating that Order or causing it to be violated, then SNAP has brought its present legal travails upon itself and, I would add, upon the credibility of all similar organizations.

Whence do the editors derive their assertion that communications and records of SNAP are confidential? That SNAP “believes itself to be” a legally protected organization? Surely it had access to sufficient legal talent to determine that as definitively Yes or No long ago; numerous highly-rewarded tort attorneys have benefitted from SNAP and could hardly have been unavailable over the past many years to offer Advice of Counsel on that matter.

If SNAP is indeed so protected, then it will be easy enough to legally turn back the requests for information. If SNAP is not so protected, then it and it alone will be required to turn over records (for which individual names and identifying information can easily be kept confidential by the cognizant Court). So this editorial claim is a tissue of words camouflaging a non-issue.

The fact that SNAP has been turned back at all levels of appeal, presuming that it made this utterly vital assertion of its purported legal privilege to those various courts, indicates that those higher levels agree that it is not so privileged in that State’s law. How could the editorial overlook this rather basic point in making its analysis?

And to try to tie in SNAP’s predicament not only to all victim-counseling organizations that actually do enjoy such legal privilege, and then beyond those organizations to any whistleblower anywhere in regard to any matter about any organization whatsoever … is a reach that can only be characterizable as either hysterical or histrionic. Neither of which possibilities contributes to confidence in the competence and/or integrity of those who try to make the connection.

The “breadth” of the demanded documents is too wide. For what? To make that determination one would have to know the gravamen of the issue at hand.

SNAP is under a legal cloud not through the action of the original lawsuit (to which it was not a Party) but rather because it somehow broke or caused to be broken a Court Order putting a seal on the proceedings. If SNAP is a press organization – which to the best of my knowledge it is not and has never claimed to be – then its travails would justify the concern of press organizations. If SNAP is under the impression that in that State it is a protected organization, then its travails would pose a threat to all such privileged organizations, but in the eyes – apparently – of all the cognizant courts in the system it is not so privileged. (Although whether it has represented itself as being thus privileged to persons approaching it is another question entirely – and not a small one.)

So why the local Press Organization felt inclined to – or had the relevant need to – file an Amicus Brief is a mystery that no doubt harbors some interesting answers.

Ditto the assorted victim’s advocacy groups (presuming that they are themselves legally privileged – although if the signatory Amicus groups are not so privileged, then most certainly Yes, they have a great deal at stake in the outcome of SNAP’s travails).

The public may very well and hardly unreasonably harbor the impression that a significant element in SNAP’s organizational plan is to be a collection-point and conduit between potential tort clients and assorted tort-attorneys. The editorial says this is not at all so … on the basis of Mr. Clohessy’s assertion that it is not so. Passing over without remark the fact that this is mighty thin gruel to constitute conclusive evidence by a putatively world-class press organization, there is the fact that Mr. Clohessy recently claimed that he has always operated on the assumption that the levels of truthfulness and honesty that apply to the Church do not apply to him or his organization. How then believe a man who sincerely believes in dishonesty?

Nor has his organization demonstrated transparency in the matter of making public the records of where it gets its money – to refute clearly the abiding suspicion that SNAP received kickbacks from the tort attorneys for whom the victim-stories and cases have been (you should pardon the expression) manna from heaven.

I am not sure why the various attorneys are interested in ‘repressed memory’, that always-dubious and now discredited theory that fueled so much of the victim movement’s agitations since at least the early 1980s.

The idea that a memory a) was like a snapshot and b) was like a computer file and thus c) could be suddenly returned to consciousness with all the clarity of a photo or a pristine computer file suddenly recalled from ‘Documents’ was always hugely dubious. There is no neural architecture to provide pathways for such processes; the memory does not function like a camera but is far more dynamic and complex in what it selects; the emotional pressures present in a traumatic situation would act to further confuse what is an already fluid dynamic; and it flies in the face of everything we know about evolution that human beings would be prompted and equipped to ‘forget’ grave dangers – rather, those are precisely the experiences it is most necessary to recall if the species is to survive.

And all of that presumes the sincerity and integrity of the person claiming to have such a ‘memory’.

Do the editors know none of this?

But at any rate, it is well within the Court’s purview to maintain the confidentiality of the individuals who did claim repressed memory to SNAP staff. (Although if there should prove to be discrepancies between communications with SNAP and later claims, say for example, made in a court case under pains and penalties of perjury … well, yes, that would create some problems in the perjury department. But are the editors intent on preventing the righting of such perjurious miscarriages of justice? Or are such miscarriages merely ‘acceptable losses’ and ‘forgivable exaggerations’ in the Great and Good Cause?)

If a number of attorneys for various priests (or Dioceses) were granted the Standing to participate actively in Mr. Clohessy’s deposition, then they were granted that authority by the cognizant Court or applicable law. The Church could not – as some seem to believe – simply order a pig-pile (to use a childhood phrase). Given the rather significant numbers of Dioceses and priests Mr. Clohessy and his organization have brought under their attentions, it would hardly be surprising if perhaps some common practice(s) engaged in by Mr. Clohessy and/or his organization were found to have somehow tainted a large number of past and present legal cases and lawsuits and such.

And in that regard there is his own recent assertion of a double-standard by which he and his organization should not be held strictly. And his assistant Ms. Dorritt’s that accused priests have no legal rights anyone is bound to respect. It would hardly be surprising if attorneys for a large number of accused individuals and sued Dioceses weren’t interested – they would be remiss in their responsibilities if they didn’t take a most serious interest.

But how do the editors assert that in the course of the deposition Mr. Clohessy was largely questioned on irrelevant matters? Did the interrogating attorneys confess that to them? Were their own attorneys present as observers or did they have access to the deposition transcript? Or did they merely take the word of Mr. Clohessy and/or his counsel? And if the latter, then what sort of confidence can be placed now in their thoughts?

The editors piously intone that “we don’t agree with all of SNAP’s tactics”. Aside from what I have discussed above, I have no idea just how much they know that they are now trying to distance themselves from, but the statement certainly raises more questions than it answers or tries to preclude.

Yet they then go on to make the assertion – for all practical purposes – that whatever its dishonesties, SNAP is just too good and too “unique” to fail. I haven’t been keeping a strict tally of the number of Impossible Things to be Believed Before Breakfast, but they must by this point in the editorial have gotten beyond the Red Queen’s Six.

Apparently dishonesty in a good cause is OK. And if you trying to take the Church down several or a dozen notches then that qualifies as ‘good’. And if you are a) a legally privileged organization that actually isn’t one; and b) an organization crusading for justice that doesn’t consider itself bound by truth or law; and c) a press organization that actually isn’t one; and d) a therapeutic aid organization that offers a verrrry speshull type of therapy-by-lawyer with (up until the recent developments) almost no risk of being challenged as to the veracity of your ‘memories’ or your ‘stories’ … well, yes, I would agree with the editors that SNAP is unique.

But then, “unique” is rather too mild a term indeed, and the editors do not do the real SNAP justice.

The editors point out that SNAP is not a Party to the original lawsuit, but that is irrelevant to its problem in this matter. The editors characterize the presence of so many attorneys across the table from SNAP as signs of a “fishing expedition”. But surely, if SNAP has been engaged in widespread and long-sustained skullduggery, then it is hardly unusual in such a case for attorneys from the long-ago or the far-away to want to find out if anything had been done which prejudiced their own clients’ cases or – more ominously – constituted or contributed to a Fraud Upon the Court in one or a number of cases.

The editors then point to the value of “well-informed media”. Although, as I said above, the point has no relevance to SNAP … unless, of course, the case is to be made that SNAP did indeed violate a Court Order in disseminating sealed information but only because it was privileged as a ‘whistleblower’ or as a rape-crisis and counseling center or as a press organization itself. Or all of the above – one gets the idea that SNAP is trying to throw anything up in the air to see if it flies, and the editors are doing their best to assist.

At any rate, the 2002 ‘Boston Globe’ reference is very interesting. First, it marked Phase 3 of a sustained campaign that – like a tornado controlled by forces unknown – blew through, turned around, blew through again, turned around, and then came back for a third trip down Main Street. Phase 1 came and went in the mid-80s, Phase 2 in the early 1990s, and both of them focused on individual accused priests.

But in 2002 a far more complex and hydra-headed strategy was developed: a) it was the Bishop or Diocese named as Party-Defendant; b) numerous allegations were ‘bundled’ into a single civil lawsuit (so few of any of these cases ever went to criminal trial); thus c) the Party-Defendant (and the deep-pockets Insurer) had to decide whether to contest or simply ‘settle’ – which, given the huge number of allegations and stories (almost all of which have never had to or have been corroborated or verified formally) would have been a hugely expensive proposition.

The Insurers, who would have had great say in the matter, would almost as a matter of sound financial practice insist upon a settlement (and it would have been the same in a train wreck or a plane crash or any other type of large and multiple-Plaintiff lawsuit).

This served many interests: tort-attorneys, persons with stories who saw (or were shown, perhaps by SNAP or perhaps by attorneys to whom it referred ‘victims’) the possibility of closure and/or cash; SNAP itself which fed off the intensifying dynamic as a hurricane feeds off ocean water; and a media that was economically interested in any good scandal story, especially if it could be guaranteed to have ‘legs’ and go on and on.

(I leave out the possibility of ideological motivations such as, say, a generally acknowledge ‘liberal’ paper or a secularist and anti-religious agenda. And I also leave out the possibilities useful to persons within the Church seeking Democracy, Diversity, and/or Regime Change in one form or another.)

But what has this to do with “a well informed press”? The ‘Globe’ essentially merely pasted together a whole lotta unsupported allegations and accusatory ‘stories’. Very little investigative reporting went into it. But THEN it comes to me: the unspoken middle in the editorial is that SNAP not only fed its victims to tort attorneys (for a kickback?) but also fed their ‘stories’ to the ‘Boston Globe’ (which, alas, garnered a Pulitzer for its ‘reporting’). So SNAP has been doing a whole lot more than counseling anybody who came to it. It has - “uniquely” is indeed accurate here – set itself up as a very active and not overly principled middleman between victims, tort attorneys, and media – and all have made out rather well.

So much so that you wonder if they’d really rather not see it all end. And thus have some perhaps subsurface desire (or strategy) to ‘keep the ball rolling’ and to that end, to do ‘whatever it takes’.

Anyway, at least a third of the seventy-five people who showed up for SNAP’s 10^th anniversary world conference in Boston were officials and speakers. And not a single one of the tort attorneys who made so much off these cases even wanted his/her name mentioned in conjunction with so world-historical an event. What are we to make of that? What did the editors think of it? They must have known. Did they send of their reporters to this event? If not, why not?

The editorial then asserts that “it has been the partnership of advocates and media that has moved responses to sexual abuse out of backrooms and into courtrooms”. But such a ‘partnership’ should not exist in the first place: the press is supposed to be ‘independent’ precisely so that it can conduct its own analysis independent of alliance or partnership with any interested party. Otherwise, the press becomes – to use the military term – ‘embedded’ with the advocacy and that creates lethal problems in credibility and integrity. Surely the editors were not unaware of all that.

The editorial then asserts – versus “opponents” who claim that the same standard of organizational transparency applies to both the Church and to SNAP – that SNAP and the Church are not “equivalent structures” – which is a rather novel bit of philosophy and law. As an assertion of morality it is insupportable, and as an assertion of legal principle it is positively lethal: if all persons and entities are not equally responsible for being truthful, then on what basis does the accuracy and legitimacy of legal process and Law stand?

SNAP’s only “uniqueness” in this regard (clearly the editors have already forgotten about or ignored SNAP’s purported already-existing legal privilege) is that it even dares to make such a claim. Of what use is a whistleblower who is not truthful in his/her revelations; or a press agency that is not truthful with the public; or a therapeutic organization that is not truthful with its clients or patients?

SNAP, the editors say, is “unusual” because it is an organization that arose in response to a crisis “that nobody could have foreseen”. What is the point? What is the relevance of this assertion? This is a duplicitous way, as far as I can see, of making Clohessy’s own claim that when you are trying to do good in fighting “an evil pedophile Church” then you shouldn’t have to be required to tell the truth … but the evil pedophile Church should be.

This principle makes any and all advocacy suspect. How much advocacy in regard to anything in the past 40-plus years of Identity-Advocacy Politics has considered this to be a valid operational philosophy? How many press agencies that engage in so-called ‘advocacy journalism’ have been engaging in ‘partnership’ with such philosophy?

The editorial then quotes an Amicus Brief that makes the creative argument that if SNAP has to deliver all these documents, then all sorts of folks who communicated with SNAP will be put in danger of death or retaliation like members of the NAACP in the Jim Crow South in the 1950s if their names were made public to the Klan.

All of the courts in this SNAP matter rejected that argument and how could they not? The cognizant court could keep the personal identifying information confidential (unless a case might be made that this or that individual allegant could be reasonably demonstrated to have committed Perjury or a Fraud Upon the Court in some case – but that is not the Church getting an allegant in trouble; that is the allegant committing Perjury or a Fraud Upon the Court, which – not to put too fine a point on it – constitute crimes in just about every State).

If anybody, it is the accused that stand to suffer precisely from such dangers – “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility”, to use the list the Amicus Brief uses – through the Mania that SNAP has committed itself – with self-admittedly no responsibility to truthfulness as it is commonly understood – to fostering and continuing. As in any other aspect of the Sex Offense Mania, the dangers to any accused in terms of permanently losing reputation, livelihood, the ability to raise a family, maintain a residence, or even to live in physical safety are multiple, interlocking, substantial, and almost inevitable.

And if Mr. Clohessy’s remarks – which are a certainty – and SNAP’s organizational methods and operation strategies – which are far more than merely ‘possible’ – are any gauge, then if “survivors and witnesses of sexual abuse will no longer feel comfortable in approaching SNAP with confidence” that perhaps may not be such a bad thing for them in any event.

I can’t imagine on what grounds any experienced attorney – let alone law professor – can claim, as does the editors’ chosen source on this matter – that these subpoenas are somehow the most “ugly” tactics she has ever seen.

An illegal act reasonably suspected by a cognizant Court to have been committed by SNAP – an organization that has been deliberately involved for years in numerous acts of supporting legal action against many individuals and entities – suddenly gives reasonable cause to suspect that SNAP may well have engaged in untruthfulness in any number of ways during some of those prior or present cases. Attorneys of all the persons and entities involved as Parties-Defendant in those cases or otherwise indirectly were harmed by any such dishonesty AND any other Courts that might have reason to suspect that a Fraud was committed upon them … well, if you have committed untruthfulness to the point where so many lives may have been harmed and so many formal legal proceedings fundamentally and fatally tainted by Perjury or Fraud, then Yes, you are on the cusp of a whole lotta trouble.

And really, so few of these abuse cases have ever reached “the courtroom”, contrary to the editors’ pithy but ultimately empty characterization. Most of these were civil cases, and most were ‘settled’. Rarely did ‘Perry Mason’ enter into it. And even in the cases where trials were held, the taint of impropriety, especially now that the emotions of the moment have faded and with them their protecting aura of ‘rightness’, becomes more clearly palpable.

Thus I don’t see how the depth and breadth and width of the subpoenas are disproportionate to the depth and breadth and width of the possible perpetrations effected by SNAP over the almost quarter-century of its very busy organizational existence. Rather, I think there are strong grounds to suspect that SNAP and its ‘partners’ – press and tort attorneys and others in on the game – have every reason to fear that even a single glimpse of what has really been going on is going to subject them to serious legal problems that will indeed be proportional to what they have done and what they have been doing for all these years.

How can the editors characterize this as “hardball” as if SNAP hasn’t been playing “hardball”? Careers wrecked, professional lives destroyed, and no extant evidence demonstrates that all or even most cases were demonstrably true.

And if Frauds were committed upon Courts, then it is not the Church that SNAP has to fear but a whole lotta verrrry angry Courts. And that, I think, is why all the ‘partner’ tort attorneys who made a mint off this Phase and have always been so camera-ready, suddenly disappeared off the radar two weeks ago in Boston and ever since. They know in their professional bones that Courts that realize they have been en-Frauded are verrrrry dangerous creatures, besides which a Vatican ruminating or a bishop scratching his embroidered cone-cap is child’s-play.

Lastly, the editors mention that SNAP is only “modestly funded”. And yet they neglect to consider that SNAP has been partnered with some of the slyest (and now rather wealthy) tort attorneys in the country. Where are all these folks with checkbook or lawbook when their erstwhile “unique” ‘partner’ stands on the cusp of a genuine legal (if not also moral) abyss? And why have they allowed their ‘unique partner’ to languish in this unjust and unwarranted hell?

The editors apparently don’t think to ask.

It appears, at the most charitable, a habitual failing of theirs.

Thus the significance of all this for the SO community is substantial: the SO Mania itself was one of the government’s first efforts at using the advanced techniques of manipulating public opinion – already reduced to cartoonish caricaturing and emotion-laden posturing instead of deliberative and tire-kicking analysis – and then combining that with the vastly enhanced technological ability to ‘track’ any targeted Citizens (the Nazis had to rely on file cards and constantly updated book-sized master-lists in a society riddled with ‘checkpoints’), in order to construct an ‘outrage’ of putative horrific proportions, that thus generated an ‘emergency’, to which the government could then respond by (what was in the early 1990s) draconian legislation.

A baaaaad thing even at its inception, this gambit was quickly adapted after 9/11 to go after just about anybody as a ‘terrorist’ or ‘terrorist-enabler’ without regard to civil rights or liberties (since, as the odious Lindsey Graham has recently said, ‘we are at war’ – just as the government was at with Sex Offenders 20-plus years ago).

The Catholic priest abuse ‘crisis’ was a subset of the SO Mania, specifically designed to weaken the authority of the Catholic Church (no other organizations have been subjected to such sustained attention in the matter of sexual-abuse for a quarter-century and counting) to impede the secularist agendas of the Nanny State Left and the war-making and rights-reducing agenda of the Security State Right. The Church had in the 1980s made powerful oppositional statements to major dampdreams of both Left and Right; and both extremes saw a handy way of making sure that wasn’t ever repeated again.

Within the Church, Lefty ‘liberals’ also sought Democracy (election of bishops and priests by the Faithful), Diversity (women priests and bishops), and Regime-Change (breaking up the American Church’s bond with the Vatican) in order to make the American Catholic polity more like a ‘liberal’ Protestant American church polity (which has led that gaggle into a massive irrelevance and a profound metaphysical aimlessness).

Neatly, the civilian-public aspect of the SO Mania begins to wane: one indicator is that the SMART office, charged with administering AWA after that whackulent Thing was erected into law in 2006, no longer dates its press releases; the last time I checked a week or so ago, the second most recent press release was advertising funding opportunities for Fiscal Year 2011 – which makes it over a year old since we are now almost halfway through FY 2012 (the federal Fiscal Year begins on October 1^st of the year before).

So too the Catholic abuse-mania begins to wane, although still dangerous in its dying throes.

But I hope the SO Community remains aware that a) all those noxious Mania Regime laws are still on the books; b) their guiding principles are migrating now into the military law, but may well use that last refuge as a springboard to try a comeback into civilian law; and c) the entire mindset of the Beltway is now infected with police-state conceptions that have been given increasing play since 9/11 but that were originally embraced in the run-up to the Sex Offense Mania Regime two decades and more ago.

So much remains to be done.*

NOTES

*So, for example, this article clearly recognizes the police-state and totalitarian consequences of the National Defense Authorization Act. But it urges ‘progressive’ action against it. Yet not only does it make any reference to the clear steps taken toward this police-state with the construction of the SO Mania Regime, but how can it not be clear that at the time of its inception the SO Mania Regime was itself considered to be ‘progressive’?

ADVOCACY

2012-01-04T15:05:00.000-08:00

I have always recommended that if you read an SO/SA/SV article online, you also pay attention to the comments as well. The comments, I have said, give you an idea of how people (at least those who make comments online) are thinking as well as what they are thinking, and what the general themes and threads are and what the general level of discourse is.

What I have been doing in the past week is actually paying more attention to the comments than to the articles (and even making a few comments of my own where it looks like they might do some bit of good).

Thus I came across this article just yesterday.

I am not going to review the article here as is my usual habit. It’s a good one by a good author (a doctor who once worked in a prison in the UK) and you can read it for yourself if you wish.

Instead I am going to look at the comments. As you can see if you scroll down, I made several under the name of Pertinax.

I was responding on a thread where one commenter, good-hearted and concerned, couldn’t see the problem with intensifying State laws (in this case in New Jersey, originator and home of Megan’s Law and the infamous 1995 Poritz decision that moved Bill Clinton to erect a ‘national Megan’s Law’ in 1996) seeking to curb the specific type of ‘abuse’ that goes under the term ‘bullying’ (although who knows what the legal definition is, or what it will be tomorrow or next month?).

I was reminded that there are sincere and decent people who support all of the Mania laws, as they expand and intensify and expand some more.

It seems to me that there are two basic types of folks who support these things. Type G (for Goodie) is sincerely concerned, wants to see something done, and is closely focused on the problem itself – without any larger frame of reference, such as questions like: What sort of consequences will there be? What possible unintended consequences that might be foreseen with some forethought? What sort of impact will such a law have on the government that has to enforce it? What sort of effect beyond the best-case scenario of simply achieving what its supporters hope it will achieve might or will this law have?

Then there is Type O (for Opportunity). This Type sees some advantage to be gained for him/herself. Perhaps there is an ‘angle’ to it in terms of making some money. Perhaps there is some status or just celebrity to be acquired. Perhaps, if one is a professional or paraprofessional, there are business or funding possibilities.

As I just discovered today, for example, the (in-)famous S.N.A.P. organization (which has kept the decades-long and seemingly sempiternal Catholic priest-abuse-victim ball rolling on and on, reputedly funded by kickbacks from the very tort attorneys who have made millions in fees representing the allegants – or allegators, I suppose ) is now in a tight spot. It is apparently suspected of leaking information in a case that is under court-seal. Its boss is now claiming that – waitttt forrrrr ittttt! – there should be two standards of justice: one for evil organizations that promote “pedophilia” and another one for good organizations that are trying to stop all that (the similarities to current US government claims in foreign policy are blatantly obvious).

The bottom line being – it would seem – that ‘good’ organizations that lie or do bad things in a good cause against ‘evil’ organizations shouldn’t have to be held responsible for breaking the law. And the SO/SA/SV Community is verrrry familiar with this line of thinking, since it was deployed against the Sex Offender from Day One, although not with such outright clarity (but then, S.N.A.P. is now in a rather tight legal spot).

More on this is a separate Post. Apparently there is a gathering-conference up in Boston this weekend to celebrate – if that’s the word – the opening of Phase 3 (by my count) of the Catholic Priest Abuse crisis: the Phase initiated on January 2, 2002 (where does the time go?) when strategy shifted to bringing civil lawsuits against the bishops (and their deep-pockets insurers) rather than against the more or less poor-as-churchmice individual accused priests. Which the ‘Boston Globe’ reported as if it were all brand-new (in 2002!) and – O the times! O the customs! – got a Pulitzer Prize for.

Back to the advocacy thoughts.

Both the Type G and the Type O supporters (and these are conceptual categories, with many individuals blending elements of both within themselves) form a base for an ‘advocacy’. On that basis organizers go to some politician and make one of those ‘Godfather’ offers that a modern pol can’t refuse: if you give us the status and funding for our stuff, we will then use that status and funding to say really nice things about you with all the public access that your support has given us. On the other hand, if you don’t, we’ll hold a tearful and outraged press conference-cum-vigil outside your offices.

And thus a ‘deal’ is struck and the ball starts rolling. And who then can stop it? Who among the ‘players’ would want to?

On the basis of that rather narrow vision of what’s at stake (the advocates’ funding and the pol’s public image) any Larger Questions and Concerns are crowded out and ignored.

Blending thus with the larger advocacies and all their schemes, visions, and deals.*

So for example, in my Comments on one site I explain to one decent and concerned commenter who can’t see any problem with all these laws that you can’t use the criminal law as a substitute for a family and parents raising a child to live according to principles; you can’t deconstruct the family and parental authority and even any sense of morality and then expect that as those many many kiddies grow up with no control over their urges and desires and emotions and behaviors, that you can simply control them through the criminal law – making everything they haven’t learned not-to-do illegal and chasing all of them throughout their lives with the Sovereign police-power.

Nor can you simply use the criminal law for ‘shaming’ people who should be ashamed of themselves. A government that has the power to go after every shameful thing that individual members of a fallen humanity may perpetrate will have no bounds on it whatsoever (as we well know from the SO Mania Regime and the Registration laws).

And it would take a government exponentially more powerful and invasive than even the East German Stasi or the old Soviet NVKD and KGB to achieve this.

Which, as you probably have noticed, is precisely where this government of America is heading, both domestically (the Mania Regimes) and in foreign policy (invading Libya, for example, because that government’s troops were allegedly on Viagra and raping women with abandon).

At this point in time, the SO Mania seems to be dying down (this gathering in Boston is probably not only more of the same-old, same-old from a decade and more ago, but is also more of a Last Hurrah) in the civil world, it is migrating – as I said in prior Posts – to the military law system.

But as I also suggested, such awful inroads as the Mania is making there might – if the money holds out – make a comeback into the civilian world to further intensify the SO Mania laws.

Much remains to be done and the stakes are very very high.

As you might see in my Posts on the other site, the entire Framing Vision and Constitutional Vision have been quietly abandoned, replaced by what are essentially Marxist-Leninist principles. (Making, in the process, this country not so much the victor over Marxist-Leninist Communism but rather the heir to it.)

Indeed, it was precisely this quiet but lethal (and it still may turn out to be a fatal one) shift within the Beltway with all its deal-making pols and professional ‘advocates’ and their wagon-train of assorted cottage-industry Mania entrepreneurs and law professors who think the shift has been the cutting-edge of world-historical reform and progress, that enabled the SO Mania Regime to get started in the first place.

You had to have convinced yourself that a totalitarian state (in so ‘good’ a cause) was a good idea before you could set up such a police-state regime as the SO Mania with its laws.

This New Year is going to be very important.

Let us so bear ourselves that it will be our finest hour.

NOTES

*You are invited to look at two longish Posts up on my other site, where I examine some of the basic elements of the long term radical-feminist strategies. Here and here. And if you hadn't already seen it, you might also want to see my Post on Supreme Court Justice William Brennan, who made so much bad look like such a good thing.

These Posts trace how the radical-feminists deployed Marxist-Leninist strategies to deconstruct the ‘hegemonic’ culture of ‘white, male, oppression’. This includes attacking any elements of that culture – including the Constitutional principles, democratic process, and – but of course – ‘males’. And this is where things become SO/SA/SV-relevant, since ‘sex’ is considered to be the basis of the entire ‘male hegemony’ and any way that one can attack males through the use of sex-charges contributes greatly to the overall Plan.

And that Plan is not merely to make life unconstitutionally hell for any SO or accused SO, but in a much larger focus to get rid of the patriarchy and the Constitution which – in the cadres’ view – supports and embodies it.

In case you want to put some substance behind what you might have been suspecting for decades now, I can humbly recommend reading the Posts and perhaps following up with your own research.

In that regard, let me take this opportunity to wish much peace upon SO’s and their families. I know that my approach is somewhat different from other SO sites in that I don’t focus on the travails of individual accused or convicted SO’s or their families. Please be assured that this is not out of any lack of concern.

Rather, it stems from my desire to a) demonstrate to the SO community that we are all engaged in much more profound work than the average bear would give us credit for – work which is vitally important not only to SO’s and their families but to all Citizens; and from my desire b) to somehow help the SO community gain the confidence of a Larger vision of what the stakes are, which perhaps c) might be of some use when those SO folks who meet with those in government power are trying to make their case on behalf of the SO mission.

ADDENDUM

I am including here a pair of the Comments I made on one of the site threads.

They are sequential, the second one responding to a reply-comment to the first one.

The first:

It's not what might be changed about the law. It goes much deeper than that.

The problem is using the criminal law against children. If they haven't reached the age of reason then the criminal law is (or should be) inapplicable as a means of dealing with them. This stems from the principle that to commit a crime you must a) provably commit the proscribed act and b) provably have the fully comprehended intention of committing the proscribed act.

Certain 'progressive' elements now want the law to pooh-pooh the 'principles' approach and just deploy the criminal law, like putting an automatic weapon on 'burst' mode and simply spraying the crowd.

This stems, I think, from the 'progressive' dilemma: having deconstructed the family and marriage and parental authority and largely the entire realm of pre-existing principles, while simultaneously having 'valorized' so-called 'total autonomy' for kids, they now have to deal with cohorts of kids who have been raised with no real sense of right or wrong or the ability to master their own urges and drives, let alone Shape them constructively.

The progressive-liberals’ solution - and it's not a good one - is simply to use the criminal law to replace the missing competences that should have been instilled by family and parental authority and education into the principled-life. Thus whatever 'actions' shouldn't be done, should simply be 'criminalized'.

But this dangerously engorges the police power of the State, already invited into the hearths and bedrooms of the Citizenry by the domestic-violence advocacy and persuaded to enact the eerily Stasi-like sex offense registration laws - and those are only the most obvious examples of the engorgement of the sovereign police power at the insistence of the Left (we had always thought that only the Right's law-and-order folk would invite the dangerous return to Leviathan, but over the past 25 years it has been the Left even more so).

I think this whole issue offers the chance to reflect on the larger and deeper concerns: there is a grave risk in all this use of the criminal-law as a substitute for 'raising children in principles' and as a 'teaching' tool and 'to send a message': the careful balance of the Constitutional machinery will be deranged and the tilt toward an invasive police state will begin.

And that tilt will also be assisted by a civil society already weakened by the weakness of its core source of vitality, which is not the government at all, but rather the vital social links that start with parenting and the family and extend out horizontally to others similarly engaged.

Progressive victimism - while perhaps well-intentioned - is as great a danger to the Constitutional balance as the old law-and-order Right of yore.

And the second:

The point about shame is well-taken. The world would be a lot better place if people didn't do things they would be ashamed of.

But what I am talking about is the criminal-law and in short order that takes us right to the profound matter of Constitutional balance and first principles.

And it is there that I would say we have to insist that you can't use the criminal law as a shaming device. There is too much at stake in terms of Leviathan and the engorgement of the police-power of the government. The Framers used the Constitutional machinery to limit the government.

They did this both because a) they didn't trust an expansive police-power in human hands and b) because they realized that government is not the core of a nation's or a polity's or a society's or a culture's life: that vital primary life is carried on by the people in their daily lives.

What has happened in the past 25 or 30 years is that under the mantra of 'the personal is political' the government has been invited into the most personal areas of every Citizen's life, and precisely with its police-power.

I can think of no greater danger to the Framing Vision.

Also, it would take a government with the knowledge and wisdom formerly ascribed to God to effect this type of authority wisely and without ill-consequence. And the Framers knew that no humans and no human government could be relied upon to exercise such omniscience as well as omnipotence.

If this sounds like a whole lot of 'basic stuff' and 'old stuff' then I can only say that this is precisely the level on which so much of the past 30 years' worth of laws were NOT examined and thus it is precisely here that we must look for why there seem to be so many problems with not only the specific laws but with the entire Constitutional machinery now.

And, since baaaad ideas tend to migrate in the Beltway, you can even see the results in foreign policy now, where the government claimed the right to invade Libya because women were reportedly being raped by Viagra-crazed troops and it is the right of any government to invade to stop such pain and outrage. On that basis, any government can claim the right to invade any other country.

It's funny how the constitutional night moves, but there you have it.

THE NATIONAL INTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY

2011-12-26T17:46:00.000-08:00

There is a new Study out (such as these things are in a time of government-enabled Mania).

It is mentioned here in an article and the text of the thing is here .

I want to say a bit about the article and then take a look at the Study itself.

The article is by one David Rosen, who – by amazing coincidence – is in the plumping process for a new book that's coming out, to which he is a contributing author, entitled “Hopeless: Barrack Obama and the Politics of Illusion”. It appears on the usually respectably-handled Counterpunch site.

The book, as best can be inferred by the title, is more of a political work than an SO (more accurately: SO/SV/SA, as I mentioned in a recent Post) book. But it imparts some new twists which are good to know about.

He begins with the observation that “many sex-related stories captured popular attention in 2011”, and “most upsetting, many of the incidents involved sexual violence”. And he quickly sketches an obligatory horror story or two. Once you factor in and make subtractions for the weasel-terms like “many” and the whole definitional problem with “sexual violence”, he seems not to be making much of a point.

But he does have a ‘new’ take on matters.

Rosen seems to be writing from the Left. There is a “sexual politics” problem – again, nothing new there. Unless, I initially thought, he might be working toward an analysis of how old Marxist, Leninist, and Gramscian thought and practice had been imported into the American Universe specifically to ‘justify’ radical-feminism’s war on men (and their sex-offending natures).

But no. He’s up to something else here. “The Republican Congress and many Republican-controlled state legislatures continued their culture-wars campaign to end Roe, to restrict sex education and to cut funding for HIV/AIDS prevention and treatment”.

Which, while actual issues in national politics, don’t really connect with SO-matters, although that’s where he’s going with all of this.

Obama, he thinks, is “tilting to the right in anticipation of the 2012 campaign”.

So Rosen has written a book and here he is going to load into the blunderbuss whatever is hanging around the shop that has anything to do with sex. While the book isn’t out yet, I am going to imagine that the only “illusions” that concern him are the ones that interfere with the dampdreams and agendas of the far Left ‘bases’ who are getting worried not only about him, but about the continued pork-feeding of their numerous enterprises set up during the past decades, back in the days when the government had lotsa public monies to redistribute and when far too many people in the country couldn’t imagine an American government drinking vat-fulls of the red-tinted Kool-Aid proferred to it by the radical-feminists.

He observes that the killing of prostitutes on Long Island clearly raises questions about “law enforcement’s ability to solve horrendous sex crimes”. Because the “justice” system (scare-quotes his), he claims, must be “either clueless ... or complicit (like so many police and prosecutor [sic] per DNA exonerations)”.

I’m not sure just what thoughts are compressed in that rather too-compressed statement. But let it be for now.

He also then tosses in a mention of the Penn State sex-abuse scandal, tying it into the institutional cover-ups there.

But that’s all prelude. For him, what is really “more troubling” are “the findings of a recently released report from the Centers of Disease Control and Prevention (CDC), documenting the alarmingly high level of sexual violence against intimate partners, violence most often perpetrated by men against women” which, according to a CDC honchette, estimates as “almost one in five women have been raped in their lifetime”. A ‘fact’ which, Rosen blurbily blurbs, she considers to be “very striking and, I think, will be surprising to a lot of people”.

You will notice that this is a Study put out by a government agency – most of which can reliably counted upon to put the Correct ‘facts’ out there.

Also that this is about “sexual violence” so you wonder just how far from the path of Correctness this thing could conceivably dare to veer.

Also that the doughty and helpful Center for Disease Control has somehow morphed into the far more ominous Center for Disease Control and Prevention (italics mine). The SO community is well and long familiar with the dangers of a government that has suddenly decided to go into the ‘prevention’ business, to ‘go preventive’ in matters foreign and domestic.

Also that the honchette seems to be a phantasm materialized from some long-distant earlier age, a revenant still shrieking out a (highly dubious and fraught) assertion from decades ago – that almost a fifth of women are raped (however defined) – as if the public hasn’t already been sweating along in the addled scrum of that particular stampede for 20 or 30 years now.

Such are the scripting dynamics of government or government-funded ‘Studies’ that need to justify their own existence as well as blast a ‘factual’ path for the follow-on wagon train of ‘experts’, advocates, ‘scholars’, ‘thinkers, ‘therapists’, bureaucrats, and assorted remora-like entrepreneurs who are trekking along in a hardy professional quest to stake some claims in the last remaining gold-fields.

And such are the dynamics of authors who are trying to whomp up some interest in a new book they’ve got coming out.

But he then immediately goes on to cut the rug out from under the honchette’s assertion by blurbing that “this is an invaluable study that confirms what many have known for years”, which is perhaps more true than he cares to imagine. “America”, he does declare, “is a terrain of widespread sexual conflict”.

Considering that the radical-feminist and victimist advocacies have been busily helping to resurrect Leviathan (Leviatha … ?) in order to assault and deconstruct the ‘hegemonic white male culture’ in all of its oppressive manifestations (mostly having to do with sweeping into the dustbin of history all the perpetrations, presumptions, and attitudes of the entire male sex), there has indeed been – I would put it – widespread “conflict about sex”. To the great political benefit of the sitting political class and the return of Leviathan (which had been banished through the Framing Vision and the Constitutional machinery designed to sustain that Vision through the ages).

But Rosen is not simply a mindless supporter. Indeed, he sniffs about the Study that “as a government document, it reflects a disturbing lack of intellectual boldness”. Marvelous. He is multi-axially and bipolar-ly alarmed and upset.

And he himself clearly does not understand that beneath the occasional and tactical focus on ‘outrages’, the Gramscian cadres are dedicated to a long and quiet war of infiltrating government and its bureaucracies with ‘respectable’ scholars and their deceptively-phrased and constructed bland ‘Studies’. Rosen is a man who would have missed the true (if evil) genius of Hitler, who decided in the late 1920s that the only path to real power was by taking over the government through seemingly legitimate processes (the late Fuhrer was legitimately appointed Chancellor by the doddering President von Hindenburg, whose inevitable and imminent death then cleared the last constitutional obstruction to Hitler’s declaring himself head of state and head of government).

So, for example, the deceptively bland assertion the honchette then makes that “collective action is needed to implement prevention approaches, ensure appropriate responses, and support these efforts based on strong data and research”. Within those poly-syllabic and vague abstractions are existing or potential programs, laws, policies, and assorted sly deceptions that – with a few minutes’ thought – you might list for yourself. Hint: “collective action” doesn’t mean commonly-agreed upon action by members of the public, but rather actions quietly (and increasingly secretly) decided upon by the assorted advocacy interests and their political panderers, to be imposed slyly but forthwith.

Rosen himself wants to see more attention paid to the effects on sexual-violence intensified by the declining economic situation – he calls it “the Great Recession” – and feels the Study pulled punches when it did not “ask respondents if violence has increased over the last 4 to 5 years, due to financial hardship”.

That timeframe seems odd, given the decades-long agitations and excitements of the Mania Regime(s), but I imagine he’s looking to tie it all into a charge against the Republicans, who of course are the sole perpetrators of the economic catastrophe (since Democrats only screwed with the economy with the best of intentions, while the Republicans did it out of pure oppressive greed). Which strikes me as a pretty good example of an illusion itself.

He wants to make the case that “the study is a testament to one of the hidden costs associated with the mounting economic, social and political crisis”. When you’re looking to sell a book or flog an idea and agenda, it’s always wise to make as many topical connections as you can. The “political’ crisis he sees is merely a tactical and topical one; the profound corrosions to the Framing Vision and the Constitution wrought over the past decades don’t appear to engage him at all. The “crisis” he sees is merely the increasing difficulty created by the ship’s engines having stopped and the inconveniences of water all over the place; the fact that Titanic has been run into a berg, ripped open like a tuna-can below the waterline, and is in great danger of sinking outright is not his concern here.

His article goes on for a while longer, picking the most useful stuff out of the Study, but I’ll proceed now directly to the text of the Study itself.

As with almost all Adobe-formatted documents, there are two systems of numbering pages: the page number assigned by the Adobe system, and the page number assigned in the original text. Thus I will use a dual system: page 1/11, for example, will refer to the same page: page 1 in the Adobe numbering and page 11 in the original document’s numbering.

This is the “National Intimate Partner and Sexual Violence Survey” of 2010 (they’re hoping for a long series of them).

It was conducted by “The National Center for Injury Prevention and Control of the Centers for Disease Control and Prevention”. I had mentioned above that this is a government agency and that the wise Citizen (borrowing from the mental stance of those truly oppressed citizens of the old USSR) will presume a certain government Thumb of Correctness to have weighed heavily on the material presented. It’s just good mental prophylaxis (preventive procedure) when you’re wading into one of these things.

The most essential point to make right off the bat is that this is a survey, and the Study is studying the results of the survey that it itself conducted.

The survey gambit has played a huge role in SO matters as also in many many other agendas over the past 40 years. As such, from the get-go and at its very core, it is a highly dubious method of getting actual facts.*

You train your interviewers to ask certain questions (while also gently reminding them that they are being hired to help a certain cause and further ‘knowledge’ that will enable a certain objective). And, by the by, the bosses and bossettes of the Survey decided, for reasons purported to be insightfully psychological, that only females would be hired to do the actual interviewing.

Then you select a group to be interviewed. Then you ask them the questions, either in person or by mail or (as in this case) by telephone. (And don’t be distracted by the solemn and scientific distinctions that this Survey makes between cell-phones and landlines).

BUT the problem with the reliability and accuracy and veracity of the whole thing is thus undermined from the get-go: because there is utterly no way that you can corroborate the ‘stories’ told in response to whatever questions you have carefully decided to ask.

Which means that the interviewee or respondent knows pretty much that no matter what s/he says in response to the questions, there is no way of anybody ever trying to find out if the story is true or not. If you think ‘victim-friendly’ investigation procedures are kinda almost guaranteed not to provide reliable facts on their own, then the survey method increases that lethal problem exponentially. And this is probably even more so when you are doing telephone interviews where the story-teller doesn’t even have to look you in the eye.

So then no matter how many bells-and-whistles and various bits of the machinery of a genuine scientific and scholarly Study are stuffed into the document (and this one is loaded with charts, graphs, percentages and estimates and numbers and lists) the whole thing is nothing more than a precariously balanced upside-down pyramid, resting completely on the highly questionable veracity of the stories you have initially collected by just asking people to go on and on.

No effort was made to corroborate or ‘question’ the stories that were collected. (And if you put yourself through the experience of reading books from the ‘outrage’ Era of the 1970s or the self-help for victimization Era of the later 1970s and 1980s, or any of the quickie ‘advocacy’ books of any phase of the overall Advocacy Age … then you realize how much government action was based, actually, in ‘stories’ that were never checked out in depth and with care.)

(This is a stunning bit of reality that radical-feminism proved particularly sly in masking: women – as the term is used in these matters – have a different way of ‘knowing’, and it comes not from macho ‘abstractions’ and the insensitive insistence on ‘facts’, but rather on ‘experiences’, usually as remembered or discovered or shared in consciousness-raising sessions among a ‘supportive’ group of the like-minded who could reliably counted on not to be so insensitive and oppressive as to ‘doubt’ or ‘question’ your story and your pain and thus re-victimize you all over again.)

The Survey lists the National Institute of Justice as one of its main associates in compiling the facts. This is the research branch of the Department of Justice – which should also tell you something. (And you might recall that the FBI, a noted division of the Department of Justice, has just recently decided to ‘re-define ‘rape’ according – to use law professor Catherine MacKinnon’s long-held insistence – from the female point of view, in which penile penetration is merely a stodgy and self-serving ‘male’ definition. She prefers the ‘female’ point of view that just about any sexual experience can ‘feel like rape’ to a female, and the law should reflect that.)

The Survey also lists the Department of Defense Family Advocacy division as another associate in the project. (And you might recall that the DOD’s military justice system has now shifted the burden of proof in sex-cases to the accused, and is probably going to be literally enacting MacKinnon’s theory into applicable military sex-offense law.)

The Survey also lists the Research Triangle Institute International, a research company founded in 1958 that is heavily involved in, to use a general term, ‘government work’.

The DOJ and DOD are also thanked (p.vii/9) for financial support as well as collaboration.

The Survey also admits, buried deep in the text (p.8/18), that it was “deeply influenced by the National Violence Against Women Survey”, so the specter of VAWA hovers above and behind the whole thing as well.

The Executive Summary begins on p.1/11.

The opening line says much: “Sexual violence, stalking, and intimate partner violence are major public health problems in the United States”. (p.1/11) So there is a significant shift now, from crime to public-health. And, of course, to the prevention of said public health problems.

As you may well imagine, ‘sexual violence’, ‘stalking’ and ‘intimate partner violence’ are verrry broadly defined, and if you have had even one instance of being touched or name-called or importuned without violence into having sex, then your story qualifies for the Survey’s ‘factual’ base.

This definitional problem, however, is not one of continually screwing with the definitions in order to keep the ball rolling. No, rather, “our understanding of these forms of violence has grown substantially over the years”. (p.1/11) And we know this from all the stories we have been hearing and how they keep getting worse even as more and more government money is poured out, and the Mania Regime(s) continue to expand, and the integrity of the legislative and public deliberative political processes continues to be eroded and corroded or is simply sidestepped altogether.

This telephone Survey was also looking to find out about and include “types of sexual violence other than rape; expressive psychological aggression and coercive control, and control of reproductive or sexual health”. (p.1/11)

That “expressive psychological aggression” includes being called names and that “control of reproductive or sexual health” includes being asked not to require a condom.

About 16,000 adults (over 18) were interviewed, breaking down into roughly 9,000 women and 7,000 men.

Among the Key Findings (pp.1/11-3/13): “Nearly 1 in 5 women (18.3pct) and 1 in 71 men (1.4pct) have been raped at some time in their lives”. Decently, the Survey limits this definition of rape to some form of achieved or attempted penetration (actually, this may be a strategic slyness: the ‘new’ definition of rape might well provide number’s so astronomically high as to invite public ridicule).

More than half of the females (51.1pct) reported being raped by “an intimate partner” and a further 40.8pct by “an acquaintance”, for a total of over 90pct who were not raped by the classic ‘stranger’. The shift seems to be toward intensifying government intrusion into and regulation of personal (rather than ‘stranger-initiated’) sexual relationships.

It seems to me that you are going to need a police state far far surpassing the days of the Stasi and the KGB to police this realm.

It also seems to me that having a) removed all the ‘moral’ constraints from ‘liberated’ sexual habits and then b) discovering that females thus liberated were in need of awesome amounts of government police support to ‘protect’ them (let alone ‘prevent’ the ‘pain’ of all this), then the entire combined weight of Boomer sexual liberation and radical-feminist ‘women’s sexual liberation’ were almost tailor-made to undermine the Framing Vision. And turn the country into a police-state.

This is especially so because the thought comes that perhaps the experience of such a large group simultaneously being ‘liberated’ and almost immediately demonstrating so urgent and thorough a need for police protection at such intimate levels of personal and social life might indicate that the ‘old’ and ‘oppressive’ sexual morality practices of a prior age in history might not have been such a bad idea after all.

And surely, the Framing Vision and the entire American Experiment in democracy were predicated upon the presumption that Citizens were at least modestly responsible, mature, and competent adults who were capable of mastering and conducting their own personal and social lives. Indeed, that such competence thus fitted them for exercising their role as Citizens and collectively as The People as ‘governors of the government’.

Instead, what we have now seen and continue to ‘discover’ with exponentially intensifying and expanding urgency is that Citizens can neither be presumed nor expected to govern themselves and thus require the governance of the government in all aspects of their lives. (And what lies hidden just behind that is the ‘new’ presumption that such thorough dependents of the government can clearly not be fitted to govern the government … which truly is a profoundly alarming thought.)

“Stalking” stories qualify so long as the respondent “felt very fearful or believed that” s/he was the subject of a stalker or that somebody near them would be “harmed or killed” (however ‘harm’ is defined here).

“Intimate partner violence”, causing – it is asserted – PTSD symptoms, headaches, and even the “missing of at least one day of work or school” is reported by 30pct of women and 10pct of men.

And thoughtfully – especially in the run-up to a major election cycle – minorities are afflicted at even higher rates, although (as the Study will venture to assert a bit later on) this is no doubt caused by declining economic conditions.

More interesting is that “across all types of violence, the majority of both male and female victims reported experiencing violence from one perpetrator”. And that the majority of females reported that the perpetrators were male. And that males also reported predominantly male perpetrators for “unwanted sexual advances” and “stalking” (perhaps reflecting some inconvenient consequences of yet other types of recent ‘liberation’).

But also that for other types of sexual violence the males reported mostly female perpetrators. (Raising, with a surprising clarity, the female-perpetration side of all these sexual-violence and partner-violence episodes.)

Among its proposals for prevention, the CDC here recommends better training “in families”, (p.4.14) although how such an exhortation can possibly square with other advocacy interests’ declared hostility to family and parental authority is a question not dealt with here. Perhaps huge numbers of jobs might be created by a government bureaucracy assigned and authorized to make parents (however defined) take official classes in how to handle their families.

At any rate, the Survey insists that the problem requires much much more “data-driven and collective action” (p.4/14) although a Survey hardly provides reliable “data” and “collective action” is a code for something else altogether.

We learn that “psychological aggression” includes “expressive aggression” (name-calling, for example) and “may be even more harmful than physical violence” (p.9/19) So in addition to the obviously harmful physical violence, it is now asserted that non-physical violence is even more harmful, neatly boxing the compass and leaving the reader with the conclusion that the only options are clear-violence and even-worse unclear violence. This ice-cream cone was designed from the get-go to lick itself.

In many of the definitions, a spectrum is implied, ranging from obviously harmful (and criminal) violence to single-instances of such quotidian realities as name-calling and even imagining that you are the sustained object of somebody else’s attentions. Yet within any such broad spectrum, the Survey slyly neglects to say what percentages reported the most outrageous experiences and what percentages reported the quotidian experiences.

“Most victims of rape knew their perpetrators”, is one highlighted quotation from the text. (p.21/31) This at first might seem a hopeful indicator that the awful SO Mania SORNA laws might thus be justifiably abandoned, but my guess is that what they’re going for here is not an attempt to temper the Mania Regime(s) but rather to expand and intensify the public anxiety about any and all “sexual violence”.

The list of “stalking tactics” (p.29/39) includes any instance of unwanted emails or texts, or the unwanted receipt of a gift, as well as the more commonly-accepted signs of actual (and truly sad and creepy) stalking. Again, no effort is made to distinguish percentages here, along the spectrum.

However females reported only 13pct of their stalkers were strangers, and males reported 19pct were strangers (curiously, I thought).

Also males reported so low a number of ‘persons in authority’ stalking them (p.33-43) that the Survey declines to report any percentage at all (although the category would, the Survey indicates, include ‘clergy’ and ‘coaches’). While females reported for this category a number of only 2.5pct.

Oddly, 6.8pct of females’ stalkers and 5.3pct of males’ stalkers are categorized as “family members”, which almost brings a bemused furrow of the brow: given the stalking-parameters, how can a family member not stalk another family member?

Among “lifetime reports” of psychological or non-physical “aggression”, females reported that the largest incidence groups were being called names and being continually asked where you were and what you were doing. (p.47/57). Among males, the highest categories of incidence were precisely the same types. So apparently then any ‘Whatcha doing?’ or any ‘You dope!’ qualifies for the stats.

You can go on to see exhaustive break-downs by States and by this and that, but you can be assured that the numbers (estimated, of course) always rise to the many thousands and many hundreds of thousands, which probably all add up to millions if you take out your pencil or calculator and do the math.

But by the time you make subtractions for a) fuzzy definitions that are slyly arranged along a spectrum such that you cannot distinguish the (few) outrages of the higher end from the (many) downticks of the lower end and b) the ‘estimating’ or extrapolating of huge numbers from so few incidences; and c) the whole game based on anecdotal information from persons who know they will never be held to account for the truthfulness or otherwise of their ‘reports’ and ‘stories’ … well, what’s left really?

But this is a snazzy production with all the costuming proper to a major Study.

It is no doubt going to be printed up and dropped with a thump on the desk of any office whose owner might be able to further the gambit, through funding especially.

And snippets from its text will be larded thickly into sound-bites, officious agreements and statements of support, and – but of course – will spawn an echo chamber effect whereby platoons of already-implanted cadres throughout the academic establishment will churn out variations on the theme. And of course, the overly-accepting mainstream media will be blast-faxed with memos containing select snippets. And the Thing will probably be read into the Congressional Record by some eagerly pandering pol.

The whole thing is intended for the purpose of pressuring the pols (who don’t really need more than a well-printed and hefty tome like this as ‘cover’ and excuse for pandering) and hoodwinking the many people who still assume that if the government and the academy both come up with a plan then it is necessary for the common-weal, and it will work, and it will work without serious cost or consequence.

How the now-established Beltway ballet will work with the utterly indispensable cash running out is a good question.

And in regard to what I have been saying about the deliberate and intensified migration of the SO Mania and all its wagon-train of advocates, enablers, practitioners, and their own trains of assistant assistant demons into the military under the auspices of the Pentagon, the situation of the Mania’s losing steam in the civilian world has ignited a lethal if desperate strategy: the military budget will be the last to go, yes – and that plays no small role in the calculations of the assorted Maniacs.

But the country has also been sliding toward a militarization – especially since 9/11 – that is by its very nature the antithesis of the independent civil society envisioned by the Framers as the true heart and soul of their Great Experiment. Once upon a time war was an occasional state of affairs and limited in large part to the soldiery; the robustness of the Citizenry and the strength of the Constitutional machinery were considered more than adequate for preventing serious permanent derangement.

But war has now become a continuous national condition, and not simply by accident but through government intention and deliberate manipulation.

And if the National Security State slide toward military rule (as in the new military budget bill) connects deeply and extensively with the National Nanny State’s presumption that the Citizenry is merely a mindless, helplessly incapable herd of potential or probable victims – who may not even yet ‘know’ that they are victims – then I think the Framing Vision is in terrible danger.

You cannot maintain a nation based on the Framing Vision while simultaneously limning and rendering huge swaths of the Citizenry as helpless and hapless victims of another huge swath of the Citizenry.

This is the truly fatal Consequence that has always dwelt in the abyss at the heart of all radical-feminist and victimist agitation. And to lure that closer to the surface through the most surely anti-American gambit of giving it a home in an increasingly militarized law and polity is to work – however good the intentions you claim – for the utter corruption of the American political and cultural Universe.

These are the stakes here.

NOTES

*So for example, earlier this month in Holland the priest-abuse civil-tort piñata was set up by the loudly publicized issue of a ‘Report’ that insisted up to 20,000 Dutch children had been abused by priests in the period 1945-2010. While it seems that the actual text of the Report is nowhere to be found online, this much is certain: the ‘Report’ is based on a survey; 34,000 people were interviewed (unknown through what modality); from the stories they got the Report-writers simply extrapolated-estimated the number of 20,000; there is some sort of a ‘spectrum’ created by worst-case to least-case types of targeted action but no news report bothers to examine that; there are also no questions as to the definitions of such key terms as ‘unwanted sexual advances’ or (especially with the new rape-is-what-I-feel-it-is definitions now floating around) ‘rape’. And of the 800 or so priests ‘reported’ in these stories to be guilty, over 700 are dead (and conveniently cannot defend themselves).

Also, while the text appears nowhere on line, it is an 1100 page thing. Large enough to a) impress merely by its weight while b) too large to discourage any close reading by any but the most intrepid (which does not, alas, include much of the media). And the fellow who headed up the commission that put it together was a former Minister or Ministry-official in the government.

I had mentioned the possibility of this new start-up of the priest-abuse sue-for-money Phase (initiated here in January 2002 in Boston) in my recent Post on the Vatican and the International Criminal Court lawsuit brought by the queasy S.N.A.P.organization (now facing its own legal troubles, ironically).

With their own economies in such difficult shape, I doubt a European government would pass up the easy political advantages to be gained from distracting their populations with what really amounts to a lottery whereby you can soothe your financial anxieties by coming up with a workable story, putting your name on some enterprising tort attorney's list, and waiting to be notified of your share.

THE INNOCENCE PROJECT

2011-12-17T20:31:00.000-08:00

A recent, interesting one-page piece in ‘The New Republic’* comes out in favor of The Innocence Project, in the matter of DNA exonerating convicts (often only after a decade or more in prison) who had been convicted by eyewitness testimony.

Of the first 250 convicts freed by subsequent DNA testing, 190 had been convicted by eyewitness testimony or identification. In 43pct of the first 250 cases, an innocent person had been convicted and was serving time when the real perpetrator was finally identified.

The SO community (we should recall that we are really the Sex Offense, Sexual Assault, and Sexual Violence community since the Maniacs are busily trying to re-badge themselves as they desperately fiddle with ‘definitions’ and ‘frames’ in order to keep their ball and train in business; SO/SA/SV) is already familiar with the unhappy history of ‘recovered memory’ and also with the profound problems raised by human memory.

In a nutshell: human memory is a dynamic, subjective, selective process at the best of times – and is in no way a ‘mental snapshot’ of ‘exactly what happened’.

The Editorial acknowledges that while eyewitness testimony (based perhaps also on an eyewitness identification) is “a necessary and inescapable part of the justice system”, yet “the problems it creates run deep".

A major problem is that it’s difficult for defense counsel to uncover the errors in such memory on the witness stand since eyewitnesses so often so intensely believe what they are sure they saw (and who they saw).

As you may well imagine, this hellish problem cannot but be exacerbated by victimist insistence that a) the allegant’s ‘story’ must be believed or else h/she will be ‘re-victimized’ by an insensitive legal process and that b) the traumatization-victimization experience (however defined) actually does take a mental snapshot that resides in the memory like a file resides in a computer hard-drive, to be recalled pristine and fresh at whatever time in the near or distant future the allegant suddenly ‘remembers’ it.

And such eyewitness confidence tends to impress jurors far more than it should, since most jurors themselves are not familiar with the complexities (and evidentiary-level unreliability) of human memory.

As always, in the genuine therapeutic forum, a ‘memory’ and the patient’s ‘presenting story’ are always grist for the competent therapeutic mill, but are never to be presumed to be entirely accurate (and that is presuming that the patient is not simply ‘confabulating’ (mixing imagination and recall) or making the thing up for ulterior purposes).

The Editorial mentions a book out now, “Convicting the Innocent”, by Professor Brandon Garrett of U/Virginia Law School that discusses this at length.**

Garret reports that in 78pct of those cases for which he could obtain trial documents “the police had contaminated eyewitness identification with suggestive procedures – such as conducting a lineup where the real suspect obviously stood out from the others or by somehow indicating, intentionally or otherwise, which person should be selected”.

And he is not discussing SO cases here specifically, so you can imagine what it is like in a possibly high-profile SO/SA/SV case where the police are under pressure to make an arrest quickly. And where the police have perhaps been ‘trained’ in ‘the complexities of sex offense investigation’ that operates on the Correct Theory that the victim cannot (and should not be made to appear to be) wrong, and that any arrest will ‘send a message’.

Garrett makes a number of sensible suggestions that are simple enough to implement (except, I would add, for objections from the feminist-victimist advocates).

Currently half a dozen states are considering ‘eyewitness reform’ statutes and policies.

Garret is associated with The Innocence Project and you can look at some of their relevant material in this matter here and here .

Threatened with the testimony of an absolutely-sure ‘eyewitness’, it is hardly inconceivable that an accused – even though innocent – might figure or be advised by defense counsel to take a plea-bargain; thus, in effect, the accused is cowed into making a false confession.***

Testimony dubiously obtained through sub-rosa State arrangements with ‘snitches’ or testimony backed up by improperly conducted forensic testing simply adds more hellish complexity to the mess. (Although in Correct feminist-victimist Theory ‘complexities’ that afflict the accused are merely part of the punishment for a guilt already presumed.)

Says the Editorial: “Conservatives and liberals should have an equal interest in freeing the innocent and identifying the guilty”.

Bravely spoken.

But there’s wayyyyy more to it than just a great, good, and valid principle.

For radical-feminism, all sex is rape in the first place. For the more intense forms of victimism, it’s the victim’s pain (and avenging it or bringing 'closure'), not the intensely probing focus on ascertaining guilt (let alone innocence) that must take precedence. For both, taking a bite out of the culture-wide ‘oppression’ trumps the innocence or guilt of any particular accused; a rather insidious and toxic assertion that is only further contaminated by the presumption that in matters of sex all men are guilty anyway and this particular accusation is merely the pretext for taking another one off the street (reminding me of what Justice Scalia said only half-jokingly two decades ago: “he probably did something else wrong anyway”).

And for the law-and-order Right one is apparently innocent until accused, which dovetails nicely enough with the feminist-victimist presumption that all men are guilty in the first place: at the choke-point of the trial itself, both Left and Right can agree on what needs to happen to the accused.

Thus the Editors are woefully unaware (or choose to be) as to just how profoundly subverted the core great and good principles of the Framing Vision have been undermined in this country for the past 40 years, and especially in the past 20 years of the Mania Regime(s).

Under the relentless and unprincipled manipulations and agitations of feminist and victimist advocacies, and – far far worse – with the eager collusion of all three Branches of the national government and so many of the Branches of the state governments as well, and of the media for its own purposes – there are now many people in the country who not only unthinkingly or deliberately subscribe to the innocence-isn’t-the-point theory, but also can’t even begin to appreciate how the core principles of the Framing Vision, the Constitution, and of the Republic itself have been ‘emergency-reformed’ away.

Thus when the Editors conclude with an exhortation that “At this deeply divided moment in American politics, it’s hard to think of a more urgent and bipartisan cause where the problem is so well-understood and the solutions are so easily within reach” … I don’t think their conceptions really encompass the awful extent of the problem as it now stands.

Because to start implementation of these solutions is going to run right up against feminist-victimist insistence that the allegant’s (or ‘victim’s’) story cannot be doubted or tested. Can you imagine what they would say if an ‘eyewitness victim’ or a ‘victim’ reinforced by other ‘eyewitnesses’ were subjected to even the simplest testing procedures to try to clearly establish the identity of the actually guilty (let alone the validity of the victim’s ‘story’)?

I believe that there are now elements of the victimist advocacies who would agree with the objectives of The Innocence Project. But I cannot imagine that they are in the majority among their peers in the advocacy organizations who now rely on the gravy-train for jobs, status, and pay.

Nor, as I have been saying in recent Posts, do I think that the politicians are really prepared to antagonize a vital if radical ‘base’ in a difficult election year. Deal-makers, like used-car salesmen, aren’t known for their principles and courageous support of the truth, whatever betide. While they may piously agree with the scriptural exhortation to ‘let justice be done even if the heavens fall’ they aren’t really going to go along with the principle if it winds up that doing that justice is going to result in the Party’s or their own electoral fall.

And, lastly, in the overall Marxist-Leninist vision – in which far too much of the advocacy movement is soused whether they realize it or not – the only relevant ‘justice’ is not that meted out to any accused in any particular case but rather the only relevant ‘justice’ is that which serves the Cause.

Which isn’t really so far from the quiet presumption that the only important ‘justice’, in the long run, is that which serves the Party. And the regime. The Nanny State and the Security State are not only “sisters under the skin”, but are sibling-offspring of the Leninist-Maoist concept of the ‘revolution’ and the ‘revolutionary state’ and ‘revolutionary politics’ and ‘revolutionary justice’. Oy.

Contrary to what so many of the assorted advocates believe about their own Cause, it is the SO community that really is on the ‘cutting edge’ of American history, as the struggle to re-establish (or forever and meanly lose) the Framing Vision continues to intensify.

NOTES

*Under the title ‘Out of Sight’, in the print edition for December 15, 2011. It is the issue’s Editorial, appearing on the first page. The electronic link leads to a subscriber-only paywall.

**You can see a review here or you can enter ‘Convicting the Innocent Brandon Garrett’ in your search engine for reviews or where the book is available.

**Nor am I here implying that any accused who makes a false confession or takes a plea-bargain for something he did not commit ‘deserves whatever he gets’. Once you realize you are standing on ground-zero and the State is preparing to drop the Big One on you – courtesy of that eyewitness testimony – then you are faced with having to make some awful calculations (and defense counsel in a time of Mania are not out of line helping him to decide in favor of a plea-bargain rather than face an inflamed and under-informed jury on top of everything else mentioned above).

POLITICAL THOUGHTS

2011-12-12T07:39:00.000-08:00

Please let me do this just once.

I have just put up an Addendum to my previous Post, but it's possible a number of readers have already read that Post. So I am going to put that short Addendum here as well, as a free-standing Post.

These thoughts are prompted by the contemplation of the SO/SA Mania advocates and enablers now turning on the military itself.

I am putting a few somewhat more specific political thoughts down here. As best I can manage, I keep politics out of the essays on this site. That's not always easy because the SO/SA Mania Regime is nothing if not a political creation. What I want to do here is just share these thoughts, clearly marked as 'political', briefly.

Clearly the Dems are now reaping the whirlwind. At this point the sitting political class has either drunk the Kool-Aid or are now trapped – especially in a difficult election year – in a lethal embrace with their most radical ‘bases’. And those bases themselves are now making increasingly strident and perhaps desperate demands.

Radical feminism (which – alas – has become synonymous with ‘feminism’) and victimism are now themselves agitated by the increasing decline in the government pork supply which has fueled their Great Day At The Beach for decades, and consequently are both a) urgently in need of tangible re-assurance and b) eager to lock down their ‘successes’ or at least keep their gravy train going on whatever track remains available.

And for all of them, the pols must see the dual ‘solution’ of intensifying i) the SO (and now SA) Mania ii) in the military as a simple and most efficient response.

This assessment, of course, reflects the bankruptcy of ‘deal politics’ in the Age of Identity in this country: the Deal is judged not by its contribution to the commonweal nor even in relation to any integrity, coherence, or efficacy in relation to the Framing Vision, nor even in terms of how a decades-sized load of such ‘deals’ might cumulatively crush the increasing fragile structure of the pols’ own legitimacy (which is an element that’s no longer ‘off the table’, as the Beltway players like to say).

These ‘solutions’ rather quickly and virulently reveal the baaaad consequences that potentially existed within them from the get-go. Leading to yet another round of witless pandering and grossly irresponsible Legislating.

Do these people not worry about the common-weal, or at least the problem of their own legitimacy – integrity is no doubt A Bridge Too Far – at all?

This extension of the SO/SA Mania not only into the military but against the very military operation command structure itself simply spreads one very lethally bad plan into a vital area already deranged by a prior lethally bad plan; the SO/SA Mania Regime on top of the Stalinist-inspired UCMJ core dynamics of 1950.

The reader somewhat given to the history of ideas might note the eerie and ironic symmetry: the Gramscian-inspired Leninist Mania ‘advocacies’ are assaulting the Stalinist-inspired UCMJ … as the genuine elements of American law and politics embodied in the Framing Vision, and the productive elements of the American economy, all shudder and slow and fill, compartment by compartment, reflecting with intensifying vividness the profoundly lethal consequences of the Beltway pols’ eagerly importing multiaxial Maoist “cultural revolution” and the Gramscian undermining of the “hegemonic culture” forty Biblical years ago. Funny how the conceptual night moves.

And so America becomes the last stage for the whackulent, virulent hashing out of Marxism-Leninism, and – in a final and perhaps fatal indignity (courtesy of the Beltway pols, Rightist as well as Leftist) – its enablers and advocates are now scrumming each other for what little remains to be grabbed, secure in their own delusion that it has all been ‘liberation’ and ‘reform’ and that they are still major Shapers and Players on the cutting edge of History and Progress.

And this comes to resemble not so much the final self-dissolution of the USSR, which blood-soaked monster actually went out with a world-historical dignity and order in the service of a long-hoped-for Possible Future. Rather, I think that the Beltway in its declining agitations is (to borrow a trope from the shocked Dowager Queen during the British Succession Crisis of 1937), coming to resemble “Roumania”.

Forty Biblical years of the most dangerous political toying with the demons of Revolution and ‘cultural de-legitimization’ and Totalitarian Praxis will now play out as a cash-status-and-power-addled official scrum on the National Lawn of some Balkan or banana republic from the bad old days. (And allow me to suggest that you give yourself this Christmas present early: watch the Marx Brothers 1933 masterpiece “Duck Soup”.)

Please forgive the injection of my political opinions. . But so much remains to be done.

H.R. 3435 and S. 1867: MILITARY SO STRATEGY

2011-12-05T13:53:00.000-08:00

Two Sex Offense-relevant Bills have caught my attention, now somewhere in Congressional process. They both have to do with how SO matters are dealt with in the military.

I want to say right off the bat that in talking about SO matters in the military here, I am going to be looking at what I think is a large new twist in the overall Beltway-Advocacy SO strategy. Thus while you may or may not be directly interested in the military-arena of SO matters, what I am going to be talking about has relevance (it seems to me) for a new direction in national SO strategy generally, which perhaps reflects larger trends in the country.

Additionally, I think that these new military-related developments give an insight into the strategizing that seems to be going on – there are elements in the Beltway putting a lot of thought (such as it is) into these things.

It started in mid-November with a Congresswoman from the San Francisco area (Speier, Dem.) putting up a short Bill; article here. The Summary of the Bill put out by her office is here, and the text of the Bill (designated H.R.3435) is here.

This is a short Bill as these things go. But it demonstrates all the usual tropes: there is an “epidemic” of sex-crimes in the military, although – neatly – it is a “silent epidemic” (meaning you might not be able to see it but you can take advocates’ and legislative supporters’ word for it that it’s really there.

The Congresswoman’s office has been working on this for some months; a new local advocacy group, headed by a “long time human rights activist”, has been started up in her District; this long-time activist had previously served as the Congresswoman’s campaign director for a failed Lieutenant-Governor race in California in 2006. The organization calls itself ‘Protect Our Defenders’. The organization has also spawned a web site – it has a “media relations” division run by a local political operative – and that site has put up a number of videos of alleged victims who tell their stories.

The Congresswoman began making frequent speeches on the House floor outlining the huge and glaring problems of sex-assaults in the military (she has currently made at least 12 of them). She had lunch with the Secretary of Defense.

When she introduced the Bill in mid-November she quickly picked up 41 official co-sponsors, 12 of them from California and all 41 are Democrats. (Three weeks later she has 81, and all are Democrats.)

The Congresswoman says she is trying to build momentum “from the ground up”.

The problem, as she sees it, is that while there were 3158 allegations or complaints of ‘sexual assault’ (however defined, of course) in the military in 2010, only 468 were deemed worthy of some level of military-justice action or disciplinary action. One disappointed complainant reports that she was told by her command that she had had consensual sex and “then changed her mind”.

(A quick recall here of how the military-justice system works: a complainant-allegant reports her (or perhaps his) complaint to his/her immediate chain of command (at the company or battalion or ship level), and that command officer makes an assessment as to whether or not the complaint warrants either disciplinary action by that commander (referred to as Non-Judicial Punishment) or else refers the matter up to a higher-commander, who has the authority to initiate an actual military-justice investigation and can, if s/he decides, initiate a court-martial proceeding.

There are two levels of court-martial, Special and General, roughly corresponding to misdemeanor or felony-level criminal trials, although as always I strongly caution that all use of familiar civilian criminal-trial terms is verrrry iffy; the military justice system (see my recent Post and its Notes in the “Foster case” here) bears only surface resemblance to the Constitution’s required protections: it has the familiar furniture any civilian would recognize but the fundamental dynamics required in the Framing Vision’s concept of criminal justice are utterly undermined by the military need to Control Outcomes.

If the allegation goes that route to the higher-command, the Service’s military-investigation arm conducts an actual investigation, reports to the JAG (military lawyer) attached to the higher commander, and that report is examined by another officer on the higher commander’s staff who makes a final “Article 32” assessment and a recommendation to that higher commander as to whether the matter justifies the higher commander initiating a court-martial process. The “Article 32 officer” is the military equivalent of the civilian Grand Jury; clearly, the word “equivalent” is highly figurative, since s/he is hardly independent of the command authority of the higher commander on whose staff s/he serves … but then the entire concept of “independence” of the assorted players in the military-justice system is highly figurative to begin with, and that reality – as I have often said – was built into the system from the get-go in 1950.

That Article-32 officer’s recommendation may or may not be accepted by the higher commander him/herself, who has complete authority to initiate or reject the court-martial option, regardless of the Article-32 officer’s recommendation; so much for an independent and authoritative ‘Grand Jury equivalent’.)

The Congresswoman’s basic claim is that since so many of the sexual-assault claims are being turned-back at the lower levels or the higher levels of the system, then she wants to erect an entirely new bureaucracy within the military, separate for all practical purposes from the actual chain of command, for handling SO claims and allegations.

This new bureaucracy, with its own ‘czar’ and staff (can you hear the ‘jobs’ section of the orchestra swelling to a crescendo among the sex-offense advocates, bureaucrats, and ‘experts’?), will have complete, direct, and independent authority from the get-go, bypassing the command-structure of the military and actually independent of it. The actual military command structure will have almost zero discretion, since sexual-assault and SO cases will be taken almost completely out of their hands.

The closest historical analogy I can think of is the Soviet parallel command-structure of the Political Branch: there was in the Soviet military an entire second command structure, manned by ‘political officers’, that had authority to override military commanders’ orders and functions if the Political directorate decided that those purely military orders were not Correct and were not in conformity with the overall Soviet government and Party policies and philosophy. This was Lenin’s and Stalin’s way of making sure that the military remained for all practical purposes an arm of the Party-State.

Naturally, of course, one can also imagine that such ‘special sex offense’ courts (we have seen them tried here and there in American civilian criminal justice, although they are not as numerous as the special Domestic Violence courts) also function rather ominously close to the old English court of Star Chamber: a high court comprised completely of political creatures who were completely in the service of the Monarch, that would put its seal of approval on any verdict that the Monarch wanted to have happen.

The Congresswoman gives no thought or provision in her Bill to what the fiscal cost might be (or grow to become).

A few thoughts quickly come to mind.

The run-up and run-out of this Bill reflect clearly, in almost textbook fashion, the old and verrrry familiar gameplan that the SO community has seen since Day One: assorted ‘horror stories’ that are considered to be outrageous by legislative supporters, who then quickly introduce Bills to ‘solve’ the problem that they are immediately and thoroughly convinced exists.

All of the usual Questions that might arise in the mind of any prudent and reasonable dispassionate observer are side-tracked, ignored, or overrun and the matter immediately goes into the introduction-of-legislation phase.

The only thing missing is a wide media coverage, since matters military are usually more obscure to most reporters (unless they simply work off press-releases issued by – tah DAHHHH! – the advocates and the supportive and enabling legislators).

As I have always said, the simplest solution to this entire problem of ‘sexual assaults (however defined) in the military (to the extent that the problem actually exists) would be to have gender-separate units. In that single policy, the vast majority of these complaints and allegations would be avoided (with the exception – perhaps not insignificant to allied political advocacies – of same-sex sexual assault).

But this rather clear and commonsensical option is apparently not-Correct and utterly unacceptable to the radical-feminist advocacies now entrenched in the Beltway; you almost never hear this thought mentioned – let alone discussed seriously – by advocates, their legislative enablers, or the media (who may well be reading only advocacy-tainted press releases to do their ‘reporting’).

Thoughts of military efficiency and ‘operational efficiency’ have never been foremost in the minds of genderist-victimist agitators working to infiltrate the military realm. Indeed, from the get-go in the now so distant early 1990s the Correct mantra was that the USSR – that great and abiding Enemy – was gone and there were no other competitor-militaries on the planet, so ‘military efficiency’ could be sacrificed in this matter of ‘rights’.

(You can judge for yourself whether such a core presumption still holds nowadays, and whether one consequence (and not unforeseen) of all the genderist-victimist agitation and policy and legislation has been indeed a lethal contribution to undermining military operational competence. In the civilian realm, I would add, the equivalent of this presumption was that Productive-efficiency could be compromised and sacrificed in the economy in order to achieve the demands of the genderist-victimist Agenda … and again you can judge for yourself nowadays if that presumption has served the country and the economy well.)

And of course, all such agitation was spun as a matter of ‘rights’ (that trump everything) and of ‘outrages’ (ditto).

This new Bill also gives rise to the thought that if the military has now become saturated with female officers at all levels, then there must be more than a few of them who are not functioning Correctly, since this problem of un-avenged ‘sexual assaults’ in the military has grown worse instead of better even as the number and proportion of female military officers has grown.

It’s also possible that the military – which has to deal with ‘reality’ and ‘consequences’ in far more direct and immediate ways than in much of the civilian world – has simply been more robust in dismissing so much of the smoke-screen that so often hides the highly-dubious nature of so many non-stranger ‘sexual assault’ allegations generally.

The actual proposals contained in the Bill give clear evidence of what the advocacies’ Agenda is looking for.

First, the creation of a Sexual Assault Oversight and Response Office (and its necessary bureaucracy). This Office and its agents would take-over all sexual-assault allegations and complaints from the get-go. The military investigators would report to it, and not to the military chain of command.

Additionally, it would have the authority to re-assign any complainant-allegant to another unit to get him/her away from the alleged assaulter and to provide the now-customary comforts and consolations. This means that in addition to taking-over all ‘sexual assault’ (I will now use the abbreviation ‘SA’ for that term) cases from start to finish, it will also be able to interfere with manning and assignment policies.

If you think about it for a moment, it means that a unit-commander with X number of people assigned to the unit to carry out its functions will now suddenly have X-1, or if there are several simultaneous SA cases, X-2,3, or whatever number, and the other members of the unit will have to make up the increased work-load. This does not seem wise in light of current and probable military task-loads and work-loads, and it sets an awful precedent for interference in the military’s ability to conduct operations – let alone the consequences to morale among the remaining personnel who find themselves suddenly having to make up the work-load.

(All of this was obvious as early as the Gulf War in 1990-1991, when unit-commanders and ship-commanders were required to ship suddenly-pregnant females back to rear-areas or back to land; nor were they allowed to request replacements (such requests would provide demonstrable proof of the ill-consequences of mixed-gender units) and so ships and units had to go into an active war-zone minus a rather shockingly large number of assigned personnel. And all this was even before the USSR had collapsed.)

This new Czar-Office would also administer an SA ‘grievance’ hot-line for anybody in the military who chose to circumvent military structures and just cut to the chase.

It would also have the direct and immediate authority to “ensure that victims are given a place of safety and security, and a place where they can communicate their experiences”. You notice the old gambits immediately: the allegant is already a ‘victim’, and the therapeutic milieu of ‘safety and security’, and the vital old workhorse demand that the ‘victim’ can tell the vital ‘story’ without fear of doubt or contradiction or questioning. We have seen this – Lynne Henderson discussed this whole toxic mixing of the therapeutic and the criminal-investigative in her articles – in the push for a Victim Rights amendment.

Second, the Bill calls for the establishment of (yet another) Council at the Secretary-of-Defense level that would be comprised of at least two military judges and will include a Department of Justice representative who is ‘experienced’ in prosecuting SA/SO cases, another member “who has had experience advocating for the rights of those sexually assaulted in the military” and yet another member “who is experienced in working on civilian cases of sexual assault”. All to be appointed by the President.

As you can quickly see, this is basically the old genderist-vicitmist gambit, with all its dampdreams, now being run in the military setting.

It has the political benefit of enabling the President to keep a ‘base’ happy in a tough-election campaign. Ditto for the Democrats generally.

But it will be interesting how it plays out for the Republicans. Although they actually started the Victim bit in the Reagan years, they have also been leery of interfering with the military (although that has done little to stop the bipartisan political pandering to radical-feminism’s Agenda for the military).

But what this Bill is proposing is profoundly assaultive of the integrity of the military command structure. And especially at a time when the country is going to be relying on the military for a whole lot more of these ‘interventions in the (pick one or both: national or humanitarian) interest around the world that you would think this would give them pause.

Also, who knows if the Question might suddenly be given a chance for public exposure: to what extent has the admitted reduction in military competence and efficiency been the result of all this Agenda-pandering?

From a legal point of view, of course, we recently saw even the JAGs themselves expose the Congressional authorization (of hugely dubious legitimacy Constitutionally and legally) to switch the burden of proof onto the accused in military SA/SO cases (enacted as a short bit buried in the huge annual military budget bill in 2006).

Third, the Bill also calls for a Director of Military Prosecutions who would have the authority to order a court-martial regardless of what the local command decided. This creates an entirely second command structure for handling SA/SO cases in the military.

And as I mentioned in the Foster Post a couple of months ago, this now adds the frakkery of SO Mania Law to the already hugely-fraught realm of military justice.

This Directorate would also have the power to take cases out of the hands of the military and refer them to the Department of Justice. Now this is again a verrrrry significant demand because it directly breaks up the tight circularity and self-contained dynamic established in military-justice affairs with the erection of the Uniform Code of Military Justice (UCMJ) in 1950.

So while the military has in very large part gone along with the genderist Agenda foisted upon it by the government in the past 20 or so years, what is being demanded here is of an entirely different order of magnitude: the disassembling (‘deconstruction’?) of the military’s basic self-contained management of its operational affairs and its very command structure. This is a huge chunk for the SO Mania and the genderist-victimist Advocacies to try and bite off.

It reflects, I think, a certain desperation on the part of those Advocacy elements and I’ll talk more about that below.

Fourth, the Bill calls for the establishment of an SO database to be kept at the Pentagon for the purposes of the military tracking anybody who has come under SA/SO scrutiny; this demand would keep the database access limited to the military investigators and the SA/SO Czar and its assorted agents and bureaucrats.

BUT then the Bill goes on to add, fifth, that the Pentagon is to forward all the usual SO Registry information (now including biometrics and all the latest whizzbangs) to the Department of Justice “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 very much conceptually open: does Congress even have the power to authorize the military (an arm of the Executive) to conduct criminal-process and trials of accusations for violations of any of the entire civilian Criminal Code?

The military formally won this ‘authority’ 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. (See Addendum 2 below for further.)

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 of a Sex Offense would be eligible for the State registry. A convictee by courtmartial 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.)

This current Bill, H.R. 3435, piggybacks itself on a small rider stuffed into the annual military budget for 2009, sponsored by Mr. Hunter of California, at Section 563 (the current Bill, H.R.3435 has the wrong Section reference, claiming it to be Sec. 583 – which sorta says a lot about how much thought and care goes into crafting Bills nowadays). By amazing coincidence, Hunter also included the set-up of an in-house Pentagon SA/SO database (see here for the text of the 2009 military budget, and scroll down to Sec. 563).

A short, hasty, deeply-fraught and clearly ill-considered Bill this may be, but if it gets into law then it opens up vast and lethal possibilities.

But there are not only the Constitutional and fiscal problems with the Bill’s proposals.

The alliance initially entered into at the outset of the SO Mania Regime by the feminist-victimist advocacies and the military-justice command, with the approval of the usually ‘patriotic’, military-supportive law-and-order Right, is now being abrogated.

What, I ask myself, would drive the SO Mania types to make such a gambit?

My thought is that as the SO Mania is now starting to run out of steam – and its ‘aura’ is wearing off – in the civilian world, the SO Mania types are turning to the military as the marquis venue for their efforts to keep in business and keep the ball rolling.

If there is any cash left, the best chances of getting chunks of it are through things-military and through the military budget. This is also probably one of the best bets for continued employment for the many bureaucrats, attorneys, and advocates who are sensing that the States’ budgets (and even the federal monies to the States) are becoming quickly tapped out even as in the civilian world the public is beginning to ask more questions or at least entertain more doubt about the SO Mania Regime than the advocacies would prefer.

A desperate federal government in an election year is probably the best site in time and space to set up shop. And the military budget is the largest remaining cash-cow in the federal Santa-sack.

But things get worse. And it shouldn’t be too much of a surprise to anybody familiar with the schemes and strategies of the SO Regime’s Maniacs.

Now passed by the Senate (having passed quickly through secret Committee sessions) is the huge annual military budget bill, S.1867. (See here for the text of the Bill and scroll down to Sec. 551 and following)

This Bill has garnered much national attention because of its Sections 1031 and 1032 that rather largely leave the door open for the President having the authority to declare anybody anywhere, US Citizen or not, in foreign war zones or here in the ‘homeland’, as a ‘terrorist’ and hence imprisonable by the military without trial or due process (or perhaps even Habeas rights).

But buried in “Subtitle E: Military Justice and Legal Matters Generally” is Section 551: “Reform of Offenses Relating to Rape, Sexual Assault, and Other Sexual Misconduct Under the Uniform Code of Military Justice”.

And what you have in Sec. 551 is a gambit familiar to the SO community from recent efforts to have the FBI redefine its annual reporting definition of ‘rape’ to include all forms of sexual assault of any severity (or lack of it) whatsoever. You may recall the recent Post here “As the Cream Runs Out” where I discussed current efforts to have the FBI change its reporting-definitions (but not the actual elements of the law in the Criminal Code).

What you now have in S.1867 in this Sec. 551 is precisely the changing of the elements of the rape charge in the UCMJ to include any and all incidents of any and all sexual mis-activity whatsoever. Everything is now subject to a Rape charge.* And any ‘sexual act’ act or contact with any part of the alleged victim’s body qualifies. Nor, if I read the thing correctly, is the victim’s testimony or even complaint necessary – anybody can bring the complaint or charge (including, no doubt, the bureaucrats and agents of the new Sex Directorate proposed in H. 3435).

Additionally – and I am here not going through the entire list of ‘reforms’ in this Section, although they include pretty much all of Speier’s menu in her short Bill H.R. 3435 – we proceed to “Subtitle F: Sexual Assault Prevention and Response”, where Sec. 564 cloaks communications between the complainant and the Sex Czar’s agents in ‘privilege’, meaning that the defense cannot have access to them in trying to defend the accused.

The only good news is that the whole thing is not retroactive, so – if you recall the Navy’s problems as outlined in the Foster Post – all of the past 20 years’ (at least) of military convictees are not going to be retroactively dragooned into this thing.

Thus what the SO Maniacs did not apparently consider possible to achieve in civilian criminal law, they have now managed to get done in military law.

(And we still have yet to see whether the Supreme Court will actually strike down as unconstitutional that 2006 provision that transfers the burden of guilt to the accused in military SO/SA cases; presently, it stands as part of military law.)

As I have often said, the (putatively ‘liberal’) National Nanny State and the (putatively ‘conservative’) National Security State have always had similar core interests. Which is why the SO Mania Regime so closely resembles and utilizes so many hallmark elements of totalitarian and police-state tactics and jurisprudence, and why the SO and Domestic Violence Mania Regime(s) have been able to garner such bipartisan support from Leftists and Rightists.

Well, that’s what I found in these two Bills (Speier’s has been sent to committee; but the Budget has passed the Senate and awaits House action; there is a rumor that the President may veto the provisions for military-imprisonment of Citizens by Presidential fiat, but that may be posturing – and even if a veto is imposed by the White House, it can be overridden. And I doubt anybody in the Beltway has even given serious thought to the monstrous corruptions and corrosions included in the SO sections).

All of this strikes me as very significant for SO matters but also for the country itself.

First, if this is erected into military law and allowed to stand, then since technically and formally military-law is still considered as valid ‘criminal law’, this entire plague-load can begin to become insinuated into civilian law. Either advocates can approach legislators in States waving the military-system as ‘federal precedent’ for ‘reforming’ State SO laws and jurispraxis, or former JAGs who are now District Attorneys can do that heavy lifting in front of State courts, or DOJ seminars for local law enforcement and prosecutors can start to suggest what a nice thing this ‘reform’ would be for civilian law and enforcement, or they can start teaching this additional load of drek in the law schools, or all of the above.

And the mainstream media will continue to read their official press releases and interview the ‘experts’ and bureaucrats who grant them ‘access’, and lap the whole thing up without blinking an eye.

In terms of the politics of advocacy, and of the SO and radical-feminist and victimist professional Advocacies in this particular matter, it seems to me that – as I said above – the SO Mania is now going to be taking up primary position in the military-justice system. And my Foster Post indicates just what a lethal double-whammy that entire dynamic will constitute for the civilian criminal justice system and for the Framing Vision itself, as embodied in the Constitution. **

In terms of the national political ‘alliances’ that have enabled the Mania Regime(s) from the get-go, there is much to consider. The shift to the military justice-arena, itself hugely fraught and dubiously legitimate, now has reached a point where the Advocacies must turn against the military command structure itself.

This is not something I can see the military accepting, even though the entire present high-command cohort has made itself hospitable to so many prior Demands from many Agendas. The reason why fire-trucks come when called, quickly and efficiently and competently, is that the Fire Department is a paramilitary organization (to some extent) and doesn’t accept the subjective and personal whims of this or that fireman when ordering an emergency response. There is a command structure based on a command philosophy which itself is grounded in the stern and urgent realities of the type of disasters and emergencies for which the Fire Department was created in the first place.

Ditto, and even more so, in the matter of the military command structure.

And, of course, and especially given the deep mushiness of the criteria by which one must try to decide if any offense occurred at all (and some schools of ‘thought’ insist that if you don’t immediately and fully accept the allegant’s ‘story’ then you are simply ‘re-victimizing the victim’), then the ‘moral hazard’ of the whole thing becomes clear: anybody who doesn’t like her present assignment can simply make an allegation and instantly qualify for speedy re-assignment somewhere else (and God help the commanding officer who denies the request). The possibilities for abuse of this process are not at all small. Ditto the consequences for military operational readiness and competence as units and commanders suddenly find themselves short-handed.

This Agenda and its Demands strike at the heart of military competence and readiness, and whatever validity there might ever have been to the early 1990s advocacy claims that the US in the post-USSR era could afford to sacrifice operational readiness and competence (I recall one supporter putting the acceptable figure at 30 percent, however you figure that), that validity no longer exists. And, looking back at 1991 or so, will most likely never exist again.

Just how far the military will accede to all this is a very large Question indeed.

It will depend to some great extent on just how willing the Republicans are to support such a lethally dangerous precedent (and as everyone knows, this sort of thing will only intensify if its initial Demands are met). Genuine and actual military competence can only become more urgent in the future, and clearly it will be impossible to conduct operations if commanders are deprived of authority and even of reliable knowledge of the manning-levels (and morale) of their units and ships.

I am no fan of military-justice, especially as it has evolved since 1950.

So this abrogation of the alliance between military command and military justice on the one side, and of the Regime Maniacs on the other side, poses for me the type of problem, like the war between Iran and Iraq, that prompted Henry Kissinger to say in an unguarded moment: “It’s a war you’d like to see both sides lose”.

But in a Larger sense, there is no doubt in my mind that this new development in Mania strategy bodes to create even more damage to vital national interests, and to the integrity and legitimacy of the Law, and to the very adherence – in any real sense – of this nation to its Framing Vision.

And it is nothing short of the most repugnantly ruthless cynicism, I would say, to claim that it is all necessary to ‘protect the troops’: the vast (male) majority of the troops are now to be placed under a threat as omnipresent as any but the most overt hostile enemy action, and under a threat that resembles – alas – nothing so much as the threat posed to any Soviet-era troops and the Soviet military by the presence of those Political Officers whose job was not to win wars or conduct efficient operations but merely to ensure that Political Correctness was enforced in the service of the Regime.

So much remains to be done.

NOTES

*As best I can make out – and it’s like trying to work through old Soviet ‘philosophical’ tomes – Catharine MacKinnon, noted feminist ‘thinker’ for whom ‘radical’ feminism is the only true feminism, was working toward this since the early 1970s. She encapsulated the idea in her 1989 book “Toward a Feminist Theory of the State”, implying that rape-by-penetration is a dumb definition because it views rape only from the male’s point of view. From the female point of view, one doesn’t have to be penetrated to feel ‘raped’. You see where this can go and is going if erected as an element of criminal law.

**In this regard, I would like to suggest that people not look at the Constitution as a literary ‘text’, whereby – according to the dictates of postmodern literary Theory – the intentions of the author of a piece of fiction are not to be considered more important than the subjective reactions and ‘feelings’ of a reader.

Rather, I would propose that the Constitution is not accurately to be treated as a ‘text’ of fiction, but as an Owner’s Manual or Maintenance and User’s Manual.

Which would mean that you would no longer be so cavalier with how the Constitution is ‘interpreted’. Indeed, who would fly an airline whose maintenance crews treated or were required to treat the manufacturer’s instructions and manuals as ‘texts’, with which the individual aircraft mechanic may or may not choose to agree?

ADDENDUM

I am putting a few somewhat more specific political thoughts down here.

And for all of them, the pols must see the dual ‘solution’ of intensifying i) the SO (and now SA) Mania ii) in the military as a simple and most efficient response.

Do these people not worry about the common-weal, or at least the problem of their own legitimacy – integrity is no doubt A Bridge Too Far – at all?

Please forgive the injection of my political opinions. You can see why I put them into an Addendum. But so much remains to be done.

ADDENDUM 2

Let me give you a little bit of an idea of what it’s like trying to figure out the basis of the military justification for prosecuting the entire criminal code (and not just military-type offenses such as sleeping at your post, disrespect to senior authority or refusal to follow lawful orders, and so forth).

I had occasion to check “West’s Encyclopedia of American Law” (2^nd Edition, 2005), put out by the marquis legal reference firm, West’s.

There (vol. 7, pp.56-7) this putatively authoritative reference work states that the 1866 Supreme Court case Ex Parte Milligan (text of Decision here) says that the Supreme Court there asserted and allowed that “the Constitution allows Congress to write rules and regulations to punish any member of the military when he or she commits a crime, in time of war or peace, in any location”.

Pass over in silence the fact that I doubt an 1866 document is going to refer to military personnel as belonging to either gender.

What piqued my concern was that a) I did not recall Milligan saying such a thing and b) what West’s writer says Milligan says is precisely what the post-1950 UCMJ supporters would very much like people to think it says.

So I looked at the text of Milligan again. Sure enough, at number 10 Milligan states that “Cases arising in the land or naval forces, or in the militia in time of war or public danger, are excepted from the necessity of presentment or indictment by a grand jury, and the right of trial by jury in such cases is subject to the same exception.”

So IF you are willing to grant that making an exception to the Vth Amendment requirement for grand jury indictment and a trial by jury effectively authorizes the military prosecuting the entire civilian Criminal Code, then Milligan supports that.

Which is a big IF and an even bigger leap of inference, especially when you realize that this entire effort at ‘justification’ thus implies that the Congressional right to “make Rules for the Government and Regulation of the land and naval Forces” (Article I, Sec. 8) – that is to say, enforcing the old Articles of War and saying what color the uniforms should be and such – somehow was meant by the Framers to nullify the very careful requirements for criminal trials put down in the Vth Amendment, in the Bill of Rights.

So I checked the text of the Constitution itself.

And that text says: : “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

I have italicized the relevant bit there. But as you read the entire Amendment you see here what powerful protections the Framers clearly insisted upon providing. It is sketchy and dodgy at best to overturn the Vth Amendment merely on the huge leap of inference in getting from the right to say what color the uniforms will be to the right to dispense with the Amendment’s requirements and carry out ‘criminal process’ through military court, for non-military offenses.

But there’s more. You will notice that Milligan actually misquotes the Constitution. In the text of the Constitution there is an utterly vital comma placed just after “militia”, which serves to say that except “in time of War or public danger” both the land and naval forces and the Militia must hew to the Vth Amendment’s safeguards.

In Milligan – and West’s article curiously does not quote the text of the Constitution itself, but only the (erroneous) text of Milligan – the utterly vital comma is taken away, making the Vth Amendment’s requirements only applicable to the Militia. Which, as I said, is not what the actual text of the Constitution says.

What can the decent Citizen make of this oddity? That in 1866 there was a mistake in transcription? Surely it was only a single comma and mistakes do happen. But just as surely, the Justices must have reviewed the final draft of the Decision before signing it, and somebody would have had to notice it.

So that leaves us with the possibility that the Supreme Court in 1866 was already trying to weaken the Bill of Rights in this matter of military justice.

And here we are today with the military-justice system (with its Stalinist inspiration) claiming, as West’s writer faithfully parrots, that as far back as 1866 the Supreme Court had somehow approved its entire post-1950 gameplan.

And all of this only becomes more vital and relevant when you realize that Sections 1031 and 1032 of the currently proposed military budget bill effectively propose to do away with the Posse Comitatus Act of 1878 which prohibited the military from engaging in domestic civilian law enforcement.

And for the SO community, the possibilies should be even more acute.

UPDATE

An article from December 13 reports that there is notable objection to the military-justice SO/SA provisions that were quietly snuck into the proposed military budget Bill.

An article from November 28 actually takes a skeptical look at Speier’s gambit.

REVISITING VICTIM RIGHTS 4

2011-11-26T11:36:00.000-08:00

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

2011-11-14T22:06:00.000-08:00

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.